' This appeal is directed against the decision of the learned Fifth Labour Court, given on 15th February, 1983 allowing the grievance petition of the respondent employee against the termination of his services and directing the appellants herein to re-instate him in service with full back benefits within 15 days.
2. The appellant authority has been established under Ordinance IV of 1980, published in the Gazatte of Pakistan, Extraordinary, dated 6th February, 1980. The authority has been charged with the duties of making all arrangements for the planning, development and managing of Export Processing Zones and to provide for matters connected therewith or ancillary thereto. The respondent was employed in the appellant authority as Security Guard vide appointment letter, dated 15th April, 1981. The respondent was to be on probation period of three months. It was further expressly provided in the appointment letter that the employment of the respondent would be on purely temporary basis and his services were liable to be terminated at any time on 15 days' notice without assigning any reasons therefor. The respondent is a reservist of Mujahid Force and as per rules he has to receive refresher training each year in the Mujahid Force Centre. It is his case that in the month of March, 1982, he was asked to attend the refresher training arranged by 743 Heavy Mujahid Battalion, Karachi. A copy of the said intimation is also stated to have been served upon the appellant authority for releasing the respondent for the said training programme. According to the respondent, despite the receipt of the said intimation and repeated requests made by the respondent for being released for undertaking the required training, the appellant authority did not release him for the training and instead terminated his services by office order, dated 17th April, 1982. The said office order purports to be termination of services simplicitor and provides that as the services of the respondent are no longer required the same are terminated by the competent authority with effect from 17th April, 1982 on one month's pay in lieu of notice period. The respondent, aggrieved by the termination of his services, preferred a grievance petition before the learned Fifth Labour Court, after serving the requisite grievance notice on the appellant authority.
The grievance petition was resisted by the appellant authority on a number of grounds. The main grounds raised by the appellant authority were that the Standing Orders are not applicable to it and its employees, that the services of the respondent were terminated purely in accordance with the terms of his appointment, that the termination of the respondent's services was simplicitor and in accordance with the law and that the respondent, being employed as a Security Guard, is not entitled to challenge the termination of his services in a Labour Court.
3. The learned Labour Court has taken the view that since the very rules applicable to the employees of the appellant authority provide that in the matter of efficiency and discipline employees upto the level of Supervisor/Stenographer shall be governed by the labour laws, therefore, the application of the labour laws to the respondent, who was a Security Guard/Watchman, cannot be excluded. The -Labour Court has further taken the view that although the appointment of the respondent was as a Security Guard since he was required to perform miscellaneous duties and further at the time of the termination of his services he was posted in the Head Office as a Peon with the General Manager he is deemed to be a workman for the pusposes of the Standing Orders and as his services have been terminated contrary to the provision of the Standing Orders, i,e, without holding an enquiry, the termination of services of the respondent is invalid.
4. I have heard Mr. Samiullah Khan, the learned counsel for the appellant, and have also partly heard Mr. M. M. Naeem, who represented the respondent. Mr. Samiullah Khan assailed the impugned decision of the learned Labour Court on the following grounds :-
(1) The appellant authority is neither a company/corporation nor an industrial or commercial unit but is an extension of Government Department and hence the Standing Orders are not applicable to it and its employees.
(ii) The respondent was employed as Security Guard/Chowkidar and was assigned duties of watchman for watching the gate area of their project at Landhi and was not assigned any manual or clerical duties and hence he does not fall within the definition of workman as given in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, accordingly, is not entitled to file or maintain a grievance petition against the termination of his services.
(iii) The termination of services of the respondent was in accord with the terms of his letter of appointment which clearly indicates/ stipulated that the respondent's services were purely temporary and his services are liable to be terminated on 14 days notice without assigning any reason.
5. The twin requirements for exemption from the application of the provisions of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, under the first proviso to subsection (4) of section 1 of the said Ordinance are firstly that the establishment in respect of which such exemption is sought is being run by or under the authority of the Federal Government or a Provincial Government, and secondly, that it has statutory rules of service, conduct or discipline for its employees. It was strongly urged by Mr. Samiullah Khan that the appellant authority fulfils both these requirements. In respect of the first requirement, he referred to the provisions of the Export Processing Zone Authority Ordinance, 1980. The said Ordinance applies to all industrial undertakings set up or operated in the Export Processing Zones. Although the appellant authority is a body corporate its general direction and administration and its affairs vest in a Board. All the members of the Board are appointed by Government and are to hold office during the pleasure of the Government. The salaries, allowances and fees to be paid to the Chairman and each of the members are to be such as are determined by the Government. An important provision of the Ordinance under which the appellant authority has been set up is that it shall discharge duties and perform such functions as are assigned to it under the Ordinance or by the Federal Government. The main function of the appellant authority as laid down in section 9 of the Ordinance is to prepare a master plan and a phased master plan programme for the development of the Export Processing Zones. The authority is further required, pursuant to the master plan, to prepare schemes for each zone and with the approval of the Federal Government, to frame schemes and lay down procedure in respect of sanctioning the establishment and operation of industries in the Zones. In the matter of finance also the Government exercises considerable control over the appellant authority. Not only are the accounts of the authority to be audited every year by the Auditor-General of Pakistan and copies of such reports submitted to the Federal Government, but the authority is required to submit for approval of the Government a statement of the estimated receipts and expenditure in respect of the next financial year. Lastly the rules under the Ordinance can only be made by the Federal Government and though the authority is empowered in respect of certain matters to frame regulation, such regulations require the approval of the Government. It was submitted by Mr. Samiullah Khan that not only is the appellant authority being run under the authority of the Federal Government but it is performing on behalf of the Federal Government certain essentially government functions connected with the planning, development and management of Export Processing Zones and sanctioning of industries in such zones. In the case of Trustees of the Port of Karachi v. Abdul Ghani, their Lordships of the Supreme Court held that it could not be disputed that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, are not applicable to the K. P. T., not standing the fact that it is being run by its Board of Trustees. In the case of Muhammad Nawaz v.
Sind Labour Appellate Tribunal (1) it was held that the Karachi Metropolitan Corporation was being run under the Provincial Government and had statutory rules for its employees and hence the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1982 was not applicable to its employees.
6. In the instant case although admittedly the appellant authority has statutory service rules, namely the Export Processing Zone Authority (Service) Rules, 1980, rule 130 lay down that in the matter of efficiency and discipline employees upto the level of supervisor and stenographer shall be governed by labour laws. Since the respondent was only a Security Guard the provision of the said rules would be applicable to him and he would be governed in the matter of efficiency and discipline by the labour laws. It was, therefore, sought to be argued by Mr. Samiullah Khan that the respondent's services were terminated on one month's notice and hence it was termination simplicitor and not by way of any punishment. The contention of Mr. Samiullah Khan would have been unassailable but a certain doubt has arisen on account of the letter, dated 15th May, 1982, written to the Officer Commanding, 743 Heavy Mujahid Battalion, by the Secretary of the appellant authority, who was the person who had issued and signed the Or der terminating the services of the respondent. In the said letter the Secretary has informed the Officer Commanding, Heavy Mujahid Battalion, that the services of the respondent were terminated on account of misconduct on 17th April, 1982. If the services of the respondent were actually terminated on account of misconduct then the order, dated 17th April, 1982 purporting to terminate the services of the respondent on one month's notice was mere clock to get rid of the services of the respondent and cannot be deemed to be termination of services simplicitor. On the other hand it is possible that it was decided not to take any disciplinary action against the respondent on account of any misconduct which he may have committed and to terminate his services simplicitor by one month's notice, in accordance with the provisions of clause I of Standing Order 12. Unfortunately, there is no material evidence on this issue and in the absence of any such evidence it is difficult for me to give a definite finding whether this was a case of termination of services simplicitor or the reason for the termination of services of the respondent was same misconduct committed by him and by way of punishment for the said misconduct. Another issue which unfortunately has not been examined by the learned Labour Court is whether the appellant authority can be considered to be an industrial or a commercial establishment for the purposes of the Sind Industrial and Commercial Employment (Standing Orders)Ordinance, 1968. It is obvious that if the appellant authority
(1) 1982 PLC 1002 ' does not fall within the definition either of industrial establishment or commercial establishment as given in the said Ordinance, the Standing Orders would not be applicable to its employees and the. Grievance petition of the respondent would not be maintainable. A decision on the issue whether the appellant authority is or is not an industrial or commercial establishment for the purposes of the above Ordinance can only be given on the basis of the evidence on the issue. No doubt the law under which the appellant authority has been established does indicate the main functions of the authority but since no specific issue in this behalf was raised nor has the learned Labour Court discussed or examined this aspect of the case the respondent has not had an opportunity to leading evidence to show that in fact the appellant authority is to be deemed to be an industrial or a commercial establisnment for the purposes of Standing Orders. Mr. Mirza Muhammad Naeem, the learned counsel for the respondent, therefore, submitted that though he has no objection is the case be remanded to the learned Labour Court for giving decision on the two issues raised above, the respondent should be given an opportunity by the learned Labour Court of leading evidence on the said issues.
7. For the reasond discussed by me above, I would set aside the decision of the learned Labour Court and would remand the case to it for giving a fresh finding in the matter, including findings on the following two issues, after giving an opportunity to both parties to lead evidence on the same :-
(i) Whether the termination of services of the respondent was termination simplicitor or on account of any misconduct alleged against him ?
(ii) Whether the appellant authority can be deemed to be an industrial or commercial establishment for the purposes of the Standing Orders and the respondent is entitled to prefer a grievance petition under clause 3 of Standing Order 12 read with section 25-A, I. R. O.
8. The appellant authority on 8th March, 1983 had deposited by cheque an amount of Rs, 9,384.50 towards back benefits of the respondent as ordered by the learned Labour Court. This amount is to be refunded to the appellant authority.