DECISION These two appeals are proposed by me to be disposed of by a single order as they pertain to the same concern and the evidence is also same in the matter.
2. The Labour Court No. IV, Karachi, dismissed the grievance petitions under section 25-A I.R.O., 1969, on the ground that these two appellants were not workmen and were drawing more than Rs.800 as their salaries and were doing managerial and supervisory work.
3. The facts are that Nisar Ahmad and Ibnul Hassan were both employed in the Commercial Establishment, namely, Hostelleries De France, Karachi. Nisar Ahmad was employed in 1958 while Ibnul Hassan was employed in 1952. On 1-8-1983, the services of both the appellants were terminated as no longer required under Standing Order 12(3) of the Standing Orders Ordinance, 1968. Both these appellants gave grievance notices and subsequently filed grievance petitions under section 25-A, I.R.O., 1969. Both of the appellants maintained that they are senior most employees of the Commercial Establishment, their duties were to maintain the Accounts Books relating to the bank accounts, making of payment and slips, for the deposit of cheque making out of the cheques and the vouchers, from the payment, made to the parties, making of monthly trial balance, maintenance of record disbursing of salaries and payments to the staff, preparing the statement of income of the salaried persons keeping the Ledgers concerned the accounts and responsible for the accounts of the company. The appellant, Nisar Ahmad was to perform duties of visiting Airlines, offices at the Airport and the town offices, to get the passengers accommodated in the Hotel and to verify the bills, made out by the Billing Section before despatch, personally delivery of the bills of various airlines offices and the town offices and maintaining the outstanding record against the customers and Airlines and collecting the cheques from the offices of the Airlines and maintaining accounts and the record for the payment of Excise Duty.
4. Respondents filed written statements containing that the appellant Nisar Ahmad was employed as a Sales Manager at the time of termination of his services. They admit that he did visit various Airlines in his capacity as Sales Manager, but it is not the case that he was Despatch Clerk or Bill Clerk or a Bill Collector or an Accounts Clerk. They have denied his position as a workman. They have not said anything about the payment of the dues i.e. Salaries, gratuity and medical allowances etc. This is the case of appellant, Ibnul Hassan also. Ibnul Hassan was a Chief Accountant and was in that capacity Incharge of all financial transactions which is supervisory and managerial.
5. I have heard Mr. Ali Amjad and Mr. Sher Afghan, the learned counsel for the appellants respectively. The counsel of the respondents, Mr. Shakeel Lari, was absent and this being very old case, therefore, the record was perused by me and the decision taken.
6. In the arguments, Mr. Ali Amjad conceded that the appellants are no longer employees of the Hostelleri De France. The said Hotel is now being run by a party which is not the same as the party against whom the cases are filed. At the same time he says that the new party is connected with the old one, but he is not able to establish it by any positive evidence.
7. Mr. Ali Amjad's contention is that the two appellants are workmen. Nisar Ahmad worked in dealing with the vouchers and cheques from different Airlines and was not a Sales Manager. This he is proving from the nature of evidence on record. The appellant Ibnul Hassan is a Chief Accountant add he deals with the accounts business with various duties of issuing cheques and disbursing of salaries etc. The definition of "workman" given in the Industrial Relations Ordinance, 1969, is, as under: -- "(xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-of or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of, or removal has led to that dispute but does not include any person--.
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature.
8. It is submitted by the learned counsel that either of the appellants was mainly employed in a managerial or administrative capacity or who being employed in a supervisory capacity drew wages exceeding Rs.800. The words ---drew exceeding Rs.800--- are to be connected with being employed in a supervisory capacity. Now this supervisory capacity is not determinable in the cases of the two appellants. Therefore, they are not be excluded as worker or workman. My findings are, therefore, that both the two appellants are workmen.
9. It has been argued that as workmen, they can file applications and grievance petitions under section 25-A, I.R.O., 1969. Definitely they can do. Further, Mr. Ali Amjad has stressed and emphasised a document, the copy of which has been brought on record but its original is not available. His contention being that since the original is not brought on record, the copy need not be considered.
In the impugned order this copy has been considered which is beyond the scope of good evidence.
10. Since the management has closed the establishment, therefore, there could not be any point to re-instate both the appellants. However, they are entitled to wages, other dues and the gratuity etc. The C workers need not go to the Civil Court to establish their cases: Their proper forum is the Labour Court where they had filed applications under section 25-A, I.R.O., 1969.
I, therefore, set aside the impugned order of the Labour Court in respect of filing separate suits for recovery of gratuity and other dues and hereby order that the same be recovered from the respondent management forthwith under this order. With this modification,- I dismiss both the appeals.