1. SARDAR MUHAMMAD AMIR AKBAR KHAN CHAIRMAN). This application was filed by Mirza Aslam Beg, petitioner, under section 34 of the industrial Relations Ordinance of 1969 (heroin, after called the I. R. O.) for re-instatement against the order of his dismissal dated 5-2-71.
2. He alleged in his petition that he was appointed as a Canteen Manager by the respondent. He was suspended from service on 14-11-1970 which was extended to six months. An enquiry was instituted against him as a result of which he was dismissed Iron service. He sent a grievance notice against the order of his dismissal. He seeks 're-instatement on the ground that the charge of misconduct was not proved against him and order of dismissal was male fide.
3. Preliminary objections were taken on behalf of the respondent that the petitioner was not a workman and that no right guaranteed or secured to him was denied by the respondent such, the application under section 34 of the I. R. O. Was not maintainable.
4. As the petitioner sent his grievance petition under Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968 (hereinafter called the Ordinance) and the relief of re-instatement to workman is also available under Standing Order 18 of the Ordinance, I recorded the statement of the petitioner on 5-5-71 to find out the nature of his duties with a view to assess if he can be classed as a workman for the purposes of Standing Order No. 18. The respondent also placed on record documents Exhs. R-2 & R-1 which were admitted by the petitioner. Sub--sequently the petitioner also placed on record letter of his appointment Exh. P- 1, and Exh. P-2 instruction to be followed to run the canteen and memorandum Exh. P-3 by which the petitioner was required to explain certain charges against him.
5. Today when the case was taken up for arguments, the petitioner also showed me certain orders of suspension to show that his suspension was ordered from the to the for a period not exceeding 4 days.
6. It was contended on behalf of the petitioner that the petitioner is covered by the definition of "workman", as according to him, though he was designated as Canteen Manager, he used to sell eatables and receive price of the articles sold and that he used to maintain. Accounts and used to deposit the income of the canteen in the cash office. It was contended that the petitioner was doing manual as well clerical work which was of a skilled nature and so he was a workman for the purposes of the Ordi--nance.
7. A perusal of section 2(c)(i.e) of the Ordinance shows that in any industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment falls within the definition of an employer. The statement of the petitioner is that he was Canteen Manager run by the respondent. About 4 or 5 persons used to work under him. This would show that his duties in the canteen were of supervisory nature as one person under him used to prepare tea, one meals and the other to used to clean utensils. Document Exh. R-2 is a letter addressed by the Management to the petitioner by which he was required to submit a list of all the individuals which the petitioner employed for the canteen. Exh. R-1 is his reply to the said letter wherein he mentioned the names of five persons whom he had appointed to work in the canteen. He also mentioned in Exh. R-I that one Roti Maker will be appointed after a few days. These to letters read together alongwith his own statement recorded In Court, leave no room for doubt that so-far as the canteen was concerned, the petitioner had the power of hire and fire. He could employ and dismiss the workman working in the canteen. With this evidence on record, there can be no doubt that the petitioner falls within the definition of employer under the Ordinance and cannot b said to be a "workman" because his main function was of supervisory nature and the little amount of clerical work which he did was only ancillary to his main function as a Manager.
8. The documents P-1 to P-3 do not show that the petitioner is a workman. The order of suspension also does not go to show that the petitioner was a workman. The arguments of the petitioner that as none of the suspension order was for a period exceeding four days, so he should be considered as a workman, cannot be accepted just because Standing Order No. 15(5) provides that a workman shall not be suspended for a period exceeding four days at a the. The status of the petitioner whether he is a workman fails within the definition of an employer is to be determined on the basis of the nature of his duties which I have shown, were of supervisory nature with powers of hire and fire.
9. It was also contended on behalf of the petitioner that as the petition has been filed under section 34 of the I. R. O., it should be held maintainable if the petitioner is shown to be a workman as defined under the I. R. O. This is true but as the petitioner seeks a relief which is available under the Ordinance so he has to satisfy all the requirements of the Ordinance before a relief available under that Ordinance can be give 2 to him as has been held by this Court in Petition No. 39/71 under section 34 of the I. R. O. In Re: Muhammad Farooq v. Chairman, Road Transport Corporation, Lahore decided on 5-5-71. So in order to get the relief of re-instatement which is available under the Ordinance the petitioner was required to satisfy that he was covered by the definition of "workman" which he has failed to do. As such, the present petition has got to be dismissed.
10. The result of the above discussions is that we dismiss the present petition as not maintainable. In the circumstances of the case, however, we leave the parties to bear their own costs.