' The two appeals captioned above arise from the decision, dated 28th May, 1984 recorded by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, whereby the respondent was directed to be re-instated in service, converting the punishment of dismissal into stoppage of increment for one year. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment, in which Jaffar Hussain will be described as the Hilton International as the appellant.
2. The respondent was initially employed as Front Office Cashier and after getting promotion became Food and Beverage Cost Accountant (F & B Cost Accountant). At the time he committed the alleged miscoduct he was getting total salary of Rs, 2,400 per mensem. The allegations against him were that when Yaqoob Bhatti replied to his reprimand that he may report the Management, he said that the Management would not take action against him but he would take ,action and that he usually misguided the R & F Staff against the union. He denied the charges. An enquiry was held which culminated in his termination from service.
3. It has been argued that according to the nature of his duties, the respondent is not a workman and that the learned lower Court wrongly held him so. Needless to say that those duties are to be considered which the respondent was performing when he was removed from service and cause of grievance accrued to him. Learned counsel for the appellant has pointed out Exhs. R. 15 and R. 16 A. C. Rs, recorded by the respondent. But they are not relevant as they carry a date prior to the one on which the respondent was promoted to the present post. I do not find force in the argument of the learned counsel that since the respondent is holding a higher post than the one that he was holding when he recorded Exhs. R. 15 to R. 20 and passed orders Exhs. R. 23 and R. 24, so is a supervisor. No such order passed by the respondent or record of work done by him as F & B Cost Accountant has been produced which could exclude him from the pale of workman. Likewise Exhs, R. 15 to R. 20, Exhs. R. 23 and R, 24 too pertain to the period when the respondent was Income Auditor, therefore, they are not relevant. It has also been argued by the learned counsel that the respondent was enjoying the facilities of officer and supervisor and was not member of the union as admitted by him so was not a workman. This argument equally has no force. It is not the direction of the employer to exclude certain posts from the definition of workman. Not amenities and facilities but duties are the deciding factors. There is no document showing that the respondent had supervisory or managerial duties. My attention has been drawn to the statement of R. W. 3 by the learned counsel. The said witness has tried to rebut the statement of the respondent but the statement of the said witness does not inspire confidence. He is an interested witness. He, as stated by him, is working in place of the respondent, who in spite of the fact of his re-instatement, has not been given duty uptil now. If the respondent succeeds in the case, R. W. 3 shall have to vacate the post for. Some other person who once had worked on his post could be examined to state the duties but it was not done. The inference, therefore, is that no one else was willing to controvert the statement of the respondent, so R. W. 3 who has a cause to state against the respondent, was selected to depose the duties. The respondent has said that he was doing clerical work. Exhs. P. 1 to P. 5 show that he was doing clerical work though he could not have taken much time to do it. Evidence is wanting to show that his work was more than of a routine nature.
The accounts work done by the respondent has not been produced. The inference is that according to the case of the appellant, it was not relevant to the issue or it cannot oust the respondent from the pale of workman as defined in section 2 (1) of the Standing Orders Ordinance, 1968. This being the situation, I cannot help saying that the learned lower Court has rightly declared the respondent as a workman.
4. So far as allegations contained in the charge-sheet are concerned, they do not constitute misconduct. Mr. Bhatti himself gave an impression that the Management would not take any action against him. When the respondent remanded him on account of making indecent speech in the presence of womenfolk, Mr. Bhatti said to the respondent that the latter may report to the Management. It was clear from it that he was sure that the Management would not take action.
The second allegation too does not amount to misconduct. The Management which is expected to be neutral could not have fell annoyed if the respondent was misguiding F & B Staff against the union. By saying so, he did not act against any provision of Standing Order 15 (3) of Standing Orders Ordinance, 1968. The punishment of dismissal is a major penalty and since no misconduct was committed, it was not called for. The learned lower Court thus rightly directed the re- instatement of the respondent but wrongly converted the punishment into stopping of increment.
Since no misconduct was committed, no penalty could be imposed. The respondent stated in his statement that since the date of his removal from service, he was unemployed. The appellant has not controverted this part of his statement. So the respondent is entitled to back benefits also.
5. As a result, the appeal of the appellant is dismissed and the appeal of the respondent is accepted and setting aside the order of stopping of increment, the respondent is allowed back benefits.