The decision, dated 27-11-1978 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged, whereby the respondent was directed to be re-instated in service with back benefits.
2. In 1970 the respondent was promoted to the post of Senior Clerk from the post of Junior Clerk.
Both the parties described the respondent as a Development Officer, Sheikhupura. In 1976 the respondent was transferred to Lahore Office but in August, 1977 he was transferred back to Sheikhupura, where he was continued to be described by both the parties as Development Officer.
His pay was Rs.750 p.m. In October, 1977 he applied for leave. He was treated as absent without leave and was charge-sheeted. Inquiry notice was served but the respondent did not join the inquiry, which was, therefore, held ex parte and pursuant to the ex parte inquiry report, he was dismissed from service in 1978. The contested points are whether the respondent is covered by the definition of workman given in section 2(xxviii) of the Industrial Relations Ordinance, 1969 and section 2(i) of the Standing Orders Ordinance, 1968, whether the charge of misconduct was established, and whether he was estopped to challenge the order of dismissal.
3. So far as the question of workman is concerned, designation is not material. It is to be seen whether in view of the duties, which the respondent was required to perform and which he had actually been performing, is he covered by the definition of workman? It is necessary to point out that the learned lower Court has wrongly taken into consideration the period during which previously the respondent remained posted at Sheikhupura. The duties performed by the respondent during his last stay at Sheikhupura only are to be considered to find out if he is covered by the definition of workman. Before he was transferred to Lahore in 1976 a branch had been opened at Sheikhupura and as there was no officer, it is to be taken that the respondent was the incharge of the branch. After the rice mills were de nationalized, the branch at Sheikhupura was restored and again the respondent was made its incharge. During this period the respondent was required to work at two places. He had to do procurement work in the field for four days at Sheikhupura and to work in Lahore Office on Wednesdays and Thursdays in every week. The learned lower Court has taken into consideration the duties performed at Sheikhupura but has wrongly said that since the respondent was only a senior clerk, he was a workman. The duties performed at Sheikhupura are not clerical. The respondent had to go to the mills, cinemas etc. For canvassing people to become clients of the appellant-company. Canvassing work requires initiative, derive, skill and imagination. No manual or clerical work is to be done. The canvassor has to deal with persons of different temperament. If he lacks initiative, derive and imagination, he is not capable of discharging his; duties successfully It is not merely a work of routine nature. No doubt, the respondent has to issue receipts of premium but it was ancillary to the main duty of canvassing, procurement of business. If one is not capable of getting sound customers to be client of a particular insurance company, no occasion to receive premium and to issue receipts arises.
So procurement and advancement of business is not a clerical or the work of routine nature. If a senior clerk is assigned such a duty instead of doing clerical work, he would no longer remain as a workman. The respondent admitted that he had been appointing agents and inspectors. Once a typist was appointed by him for one month. This kind of work cannot be done even by a supervisor.
The duty of a supervisor is to supervise the working of his subordinates. A Manager or an Agent of the proprietor can appoint employees. So the duties performed by the respondent at Sheikhupura were not of a workman. But the difficulty of the appellant does not end here. The respondent had not worked only at Sheikhupura. As pointed out above, he was also required to work and had been working two days a week in the Lahore Office of the appellant. The details and the nature of the duties performed by the respondent at Lahore are not given but there is no material on the record to say that he was performing same duties, which he was performing at Sheikhupura. There is no evidence even to show that the duties performed by the respondent at Lahore were merely ancillary to the main duties performed by him at Sheikhupura. As the respondent was only described as Development Officer and his substantive post was of senior clerk and as there is no evidence that at Lahore he was doing work of procurement of business for the appellant, the presumption is that at Lahore he was doing those duties, which were attached to his substantive post of senior clerk. A senior clerk does the work of clerical nature in the absence of the evidence to the contrary. Since the respondent was doing clerical work at Lahore and was not Development Officer in letter and principle and only of the sake of dignity was called so, he was a workman The clerical work done by him at Lahore as his main duty cannot be ignored. Of course if he had not been required to do clerical work at Lahore and had been doing only the procurement of business for the appellant at Sheikhupura, he could not have been declared as a workman under either definition. Learned counsel for the appellant has cited 984 PLC 352 and 1984 PLC 1112 but they are not germane to the case in hand on account of its peculiar nature. The peculiarity is that the duties performed by the respondent at Lahore were not managerial or supervisory but clerical.
4. The other point argued is that the respondent applied for and received his provident fund and other dues and thus was estopped from challenging the order of dismissal from service. It may be said in the outset that such recovery of dues does not ipso facto operate as estoppel to challenge the order of removal from service. The necessary ingredient that brings about the estoppel is to give an impression that the order of dismissal has been accepted and is not to be challenged. If the employee receives his total dues in full and final settlement of his claim and the dues are such which he could not claim during the subsistence of his service, he lets thereby his employer to believe that he accepts the order of removal from service and has no intention to challenge it. If the employer acts upon such a belief and pays all the dues, which the employee could not receive during the subsistence of service, the employee is estopped from challenging the order of removal from service. In the present case the respondent asked for the provident fund and other dues. The application of the respondent whereby he asked for the payment of provident fund and dues is Exh.
D-27. Before asking for dues the respondent made reference to the dismissal order. He mentioned the dismissal order to remind the employer that the relationship of employer and employee had come to an end and therefore, could ask for the settlement of his accounts finally. Needless to say that provident fund, leave encashment and gratuity can be claimed after the service has come to an end. Every month an amount proportionate to the pay is deducted from the pay of the employee. The employer adds his share to the fund. This is a kind of compulsory saving, so that when due to the termination of services the employee becomes jobless, he could start some business with the provident fund or to invest it is some other profitable undertaking. This fund cannot be taken during service. Likewise gratuity is not paid during service. Leave encashment cannot be claimed during the subsistence of service as the employee can only avail of leave due.
When service has come to an end, no question of availing leave arises, therefore, wages in lieu of leave are paid. If an employee wants to continue in service, he does not and cannot claim dues.
Likewise, a person removed from service will not claim payment of dues if he wants to remain in service and intends to challenge the order of removal from service. The respondent, therefore, by Exh. D-27 gave an impression that he did not want to challenge the dismissal order. No doubt, he did not say in Exh. D-27 that he was claiming dues towards full and final settlement but when it was made quite clear in Exh. D-28 that the cheques were being delivered towards full and final settlement of dues, it became quite clear to the respondent that after receiving the amounts, he would have no right whatsoever against the appellant. He is an educated person and is presumed to have realised that after receiving the dues mentioned in Exh. D-28, he would be debarred from challenging the dismissal order. The position would have been different if the dues had been paid to the respondent without having been demanded by him and he had received the same under protest or with a note that he was receiving the dues without any prejudice to his right to challenge the order of dismissal. He is thus estopped from challenging the order of his dismissal.
5. It has been argued by the learned counsel for the respondent that the charge-sheet was time- barred, inasmuch as it was delivered on 11-4-1978, whereas the misconduct became complete eleven days from 18-10-1977. The plea is wholly misconceived. Standing Order 15(3)(e) of Standing Orders Ordinance, 1968 says, "absence without leave for more than 10 days" will be misconduct. Of course misconduct would become complete on the expiry of eleven days if the rule had been that absence for eleven days would be misconduct. Absence for any number of days exceeding 10 days would be misconduct. If after remaining absent for more than ten days the respondent had resumed duty, the period of limitation would have started from the date of the resumption of duty and if within 30 days of the date of resumption of duty, charge-sheet had not been given, it would have become time-barred. It is not necessary that just on the expiry of eleven days or within 30 days the employer should take action. In the continuance of the absence he can take action at any time by delivering the charge-sheet.
6. However, the allegations made against the respondent do not constitute misconduct. The grievance of the appellant was that the respondent was not attending Lahore Office for two days a week. Even if it be taken that according to the appellant, the respondent had become absent from Sheikhupura also, there is no proof of it. It has been said that since the respondent did not send any progress report upto the date he sent application for leave, it means that he was absent. No such presumption arises. The duty of the respondent was to procure business for the appellant at Sheikhupura by canvassing and impressing factories, cinemas, rice mills and other business centres to become customers of the appellant by getting insurance policies. Sometime canvassing is fruitful and sometime not, and sometime result of the canvassing appears late. So it could not be expected that every week there should have been progress. So the mere fact that no progress report was sent upto 3-12-1977, does not necessarily mean that the respondent had become absent from his headquarters. The charge was not of neglect of duty. If this had been the charge, there could be some scope to presume that since the respondent may have failed to do his duty, so, therefore, he was no procurement of business. From 3-12-1977 to 3-5-1978 there are admittedly leave applications of the respondent supported by metrical certificate. They are Exhs. D-16 to D-22.
They were neither sanctioned nor rejected. Since they were not rejected and intimation sent to the respondent about the rejection, it cannot be said that he remained absent without leave. An employee can only apply for leave and he cannot help if the employer neither accepts them nor rejects them. So no misconduct was committed. Great injustice has been done to the respondent but no one can help it, since he estopped himself from challenging the dismissal order by applying for and receiving dues without protest in full and final settlement of his claim.
7. However, the order of the dismissal has the effect of termination. A dismissed person is not entitled to gratuity, bonus and leave encashment. Since the appellant allowed all those dues, it means that in reality he intended to terminate the services of the respondent and did not want to dismiss him. So the order of dismissal be treated as an order of termination of service, with the result that the respondent can seek re-employment in the establishment employ elsewhere.
8. With the above observations the appeal is accepted and setting aside the impugned decision of the learned lower Court, the grievance petition of the respondent is dismissed.
A. E.