' This is an appeal directed against the decision, dated 13th September, 1982 passed by the learned Presididg Officer, Punjab Labour Court No, 4, Faisalabad, directing the re-instatement of the respondent in service with back benefits minus Rs, 16,000 earned by him during the period of his dismissal. The respondent has filed cross-objections also which are being disposed of alongwith the appeal.
2. During an enquiry the respondent is alleged to have misbehaved and abused the members of the Board of Enquiry, on 17th February, 1980. He was given charge-sheet Exh. P-4 on 27th March, 1980. Considering his reply to the charge-sheet as unsatisfactory, an enquiry was held which culminated in his dismissal from service.
3. It has been argued by the learned counsel for the appellant that the respondent is not a workman, therefore, the Labour Court had no jurisdiction. Reference has been made to documents Exhs. R-21 and R-22. He vide the said documents acted as agent and representative of the appellant in a settlement, Exhs. R-1 to R-6 on the leave applications sanctioned by the respondent..
Exhs. R-7 to R-10 are the orders of approval of certain amounts. Exh. R-11 is the travelling bill. Exhs. R- 12 and R-13 are approval of expenses given by him. Exhs. R-15 and R-17 are the balance-sheets signed by the respondent in the capacity of Chief Accountant. Exhs. R-18 and R-I9 were also signed by him as Chief Accountant. The documents mentioned above are not germane to the point as they relate to the year 1978-79, whereas the misconduct took place and the respondent was punished in 1980. Since the respondent has been acting in 1978 as Chief Accountant and Deputy Manager for some months as stated in the written statement, therefore, he signed the documents in that capacity. At the time the misconduct took place and be was dismissed, he was Accounts Officer. So the documents relating to the said period only are relevant. The respondent in examination-inchief said that in the capacity of an Accounts Officer he had been preparing vouchers, cheques and accounts statements and had been examining and verifying bills and drafting letters. But in cross-examination he could not help admitting that it was the duty of the Accounts Clerk to prepare vouchers, that the vouchers were then checked by the accounts assistant and, thereafter, they come to the Accounts Officer for checking and pre-audit. He also stated that pre-audit is a thorough examination of the bills including the calculation, checking of prices, qualities and rates. This is necessary to point out that the examination of bills, checking of vouchers, prices and rates is not a clerical work. Prices and rates are given and it is to be seen if prices of the articles were fixed according to the rates. Making of calculations is somewhat important but cannot be said to be a clerical work. He admitted that vouchers are entered in the primary books by the clerks and the Accounts officer checks them from time to time. He also admitted that entries from the primary book are transferred to the subsidiary book by the clerks.
Likewise he admitted that entries of subsidiary ledger are posted and transferred to the general ledger by the Assistant Accountant. This admission amply shows that the work which was in reality clerical and was done by the clerks. The checking work done by the respondent was not clerical.
The learned counsel for the respondent has cited certain authorities but they are not helpful. Every case is to be decided according to the evidence produced in that case and ruling can be applied if on similar facts the finding has been given therein. They are 1979 SCMR 304, PLJ 1980 Tr. C. Labour 17,1983 PLC 679 and 1983 PLC 498. So far as Supreme Court's ruling is concerned, the discussion relates to the definition given in the Industrial Relations Ordinance, 1969. It has been observed that an employee in that case had no supervisory powers. Needless to say that the question of supervisory powers arises when we deal with the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and not the definition given in section 2 (i) of the Standing Orders Ordinance, 1968. The ruling, therefore, is not germane to the case in hand. With regard to PLJ 1980 Tr. C. Labour 17, suffice to say that the employee was, according to the evidence, performing clerical duties, whereas in the, present case, as discussed above, the clerical work was being done by the accounts clerks and only checking and examination of vouchers etc. Was being done by the respondent at the relevant time. So, the said ruling too. Is not helpful Likewise 1983 PLC 679 and 1985 PLC 498 are not applicable, inasmuch as the evidence in those cases was that the employee concerned were preparing vouchers and making entries in the books which apparently is a clerical work. In 1979 PLC 319 an Assistant Accounts Officer not doing any manual or clerical duties was held to be not a workman. The fact that be was working under the supervision of a. Chief Accounts Officer was not considered sufficient to make him a workman. According to the duties performed by the respondent that were mainly of auditing and checking, he was not a workman. Audit and pre-audit is neither the work of routine nature nor clerical. This is a work of great responsibility.
Profound knowledge of relevant rules is necessary. Making of audit report is not clerical as it is ancillary to the main duties of auditing and checking. Without auditing and checking there arises no occasion to make report. The learned lower Court thus wrongly held the respondent as a workman.
4. The other point argued by the learned counsel for the appellant is that service of grievance notice was not proved. In the written statement the objection was that no valid grievance notice was served. The respondent was misled by the objection. He thought that service of notice had been admitted and the objection was with regard to the validity of the notice only, therefore, copy of the grievance notice and the postal receipt were not tendered in evidence. The respondent has applied for additional evidence and has placed on the record of appeal the copy of the grievance notice and photo copies of two postal receipts. On the notice sent to the appellant the date cannot be read but since the said receipt and other postal receipt under which a notice was sent to the G.
C. P. Are twin, so on the same date both the letters were sent. According to the date, the receipt related to the letter containing grivance notice and from the said date the notice is within time. The objection, therefore, is overruled.
5. It has been argued by the learned counsel for the appellant that the High Court held in this very case at one stage that the rule of `master and servant' applied. This finding was given between the respondent and 0. C. P. And not versus the appellant. The ground given is that the G. C. P. Was a private establishment. The respondent was initially recruited by the Ghee Corporation of Pakistan (G. C. P.) and was, under terms of service, transferred to the appellant. 'Admittedly, the appellant is a nationalished industry and thus is no longer a private concern. So, c the ground on which the High Court held that the rule of `master and servant' applied between G. C. P. And the respondent does not exist and it cannot be said that the rule applied between the parties.
In cross-objections it has been prayed that the direction of deduction of Rs, 16,000 from back benefits is not legal and proper. The other objection is that the order of dismissal has not been declared by the learned lower Court as mala fide. Since admittedly the respondent served with Blue Star Limited, he had to account for his earnings. Back benefits are claimed not as a penalty for an uncalled for dismissal but on account of the fact that the employee could not earn livelihood on account of illegal dismissal. So, since he had earned livelihood by accepting an E employment, the said earnings are to be deducted by way of set off. So the direction of the learned lower Court in this respect was justified. It was not necessary to declare the order as mala fide. It was sufficient that it was set aside on other grounds. Since the respondent has been found to be not a workman, the cross-objections do not arise and only to avoid a remand order, they have been decided by me.
7. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the grievance petition of the respondent is dismissed.