This is an appeal by the Co-operative Textile Mill, Khanewal Limited, appellant, against the decision dated 31-8-1972 of Punjab Labour Court, Central Zone, Lahore, passed under section 25-A of Industrial Relations Ordinance, 1969, whereby the petition of Syed Ghulam Hussain Naqvi ex-Cotton Inspector, respondent, was accepted and he was ordered to be reinstated with full back benefits within a fortnight from the date of the decision.
2. The facts of the case as alleged by the respondent are that he joined the appellant's mill as Cotton Inspector on 10.1-1968 on a monthly salary of Rs. 400. His duty was to purchase cotton under the supervision of Spinning Master and the Administrator. He was also responsible for weighment of cotton moisture test and maintenance of record of cotton stock etc. In the month of Mach 1972, one Mr. Piracha, OSD, of the mill made a report against the respondent on the allegation that one Mr. Azim brother of Assistant Cotton Inspector who was not an employee of the mill was authorised to take weighment of cotton bales on behalf of the mill and on checking two bales were found 8) seers short. The respondent was issued a Show-cause notice Exh. P-4 to require him to explain as to why disciplinary action should not be taken against him. The respondent sent reply Exh. P-5 giving his explanation but in spite of that his services were terminated on 30-6-1912 vide order Exh.
P-6 without an inquiry. In that order it was mentioned that the post of Cotton Inspector was brought under reduction and, therefore, his services were so longer required. He was given one month's pay in lieu of notice and was thin relieved from service. Thereafter he sent a grievance notice to which be receive reply Exh. P-9. The respondent hereupon filed a petition under section 25-A of Industrial Relations Ordinance, 1969 contending that 'he had been punished for so called misconduct under the garb of termination and as such action taken by the appellant was unsustainable.
3. The appellant, besides contesting on merits, raised the following preliminary objections:--
(1) That the petitioner is not a workman. Petition under section 25-A, Industrial Relations Ordinance, 1969, is not maintainable.
(2) That the learned Labour Court has no jurisdiction to entertain the petition. The matter in dispute is not within the jurisdiction of the learned Labour Court.
(3) That the petitioner's post was abolished by the Registrar, Co-operative Societies, Punjab, Lahore, on 10-5-1972 where--upon the services of the petitioner were terminated on 30-6-1972.
(4) That the order of abolition had not been challenged In the present petition nor tile Registrar, Co-operative Societies, Punjab, Lahore has been made party to the- proceedings. The present petition is defective and liable to be dismissed.
(5) That the petitioner after the termination of his services filed a declaratory suit against the respondent before the Civil Judge, Khanewal on 1-7-1972 to the effect that the petitioner was the employee of the respondent-Mill and the abolition of his post by the Registrar was illegal and void and he further prayed for issuance of perpetual Injunction to the effect that the respondent should not interfere in contin--uation of petitioner's service In the Mill. The acid suit of the petitioner was dismissed as, withdrawn on 8-7-1972 under Order XXIII. rule 1, sub-rule (3) C. P. C. without permission for filing fresh suit of the same cause of action.
In view of the dismissal of the said suit the petitioner is precluded to file the present petition before this Honourable Court.
6. The respondent-Mills is being run under the authority of Punjab Government. In matter of service, conduct and discipline, statutory rules of Government servants are applicable to the employees of the respondent-Mills, so therefore, petitioner has no locus, standi to file the present petition.
Preliminary Objection No. 1 It was contended by the appellant that the respondent was not a workman and as such his petition under section 25-A, Industrial Relations Ordinance, 1969 was not maintainable. In this connection the appellant did not produce any evidence. As to the nature of the duties assigned to the respondent but only relied on the admissions made by the respondent in his cross--- examination before the learned Labour Court. Before going into merits of this case it will be proper to cite an authority of our High Court in the case. Chairman, Brooke Bond (Pakistan) Limned, Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd, Rawalpindi (PLD 1969 Lab. 717), in which It was held:- "A `workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical'.
Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. Bet both the manual and clerical work, In the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative imagination, direction, control and supervision is discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an axiliary part of his responsibilities or he is Incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties belong to this category. The true test, therefore, is to look to the direct, immediate and substantial part of the work for which he is employed and not l o the sundry duties Incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."
The respondent in his cross-examination admitted that he was incharge of the cotton branch, that the persons incharge of different branches arc sectional heads of their branches, that the sectional heads manage the affairs of their branches but except the Spinning Master under other sectional head is the authority to appoint or punish any worker. He also admitted that bill Exh. 4 was placed before him and that he had recommend--ed that 90 Y advance against the cotton received should be allowed under the contract. He, however, admitted that be used to order payment against cartage and Pelleydari bills prepared by Assistant Cotton Inspector. Raj Ahmad Khan, R. W.
1 stated that the working of the mill was governed by the bye-laws of the mill, that there are nine or ten branches and each branch has got its own sectional head that sectional heads are appointed under Bye-law No. 30 and their powers have been prescribed under Bye-law No. 33, that all the sectional heads exercise managerial powers but they have been designated differently to facilitate the working of the different sections, that nine persons mentioned in Exh. R-6 are the 'sectional heads of the different sections, that under the bye-aws sectional heads have the powers to appoint, dismiss or take disciplinary action against their subordinate getting pay Rs. 100 or less per month, that cotton branch has got two sections i e. purchase section and ginning and pressing section, that he is the incharge-of the ginning and pressing section and under the bye-laws he has the authority to appoint or punish his subordinate 'getting pay Rs. 100 or less per month and that he and the respondent possessed the same powers in these matters in their respective sections.
Bye-law No. 33 reads as follows:-
(33) The duties of the managers shall be as follows for their respective branches subject to their assignment by the Managing Director:-
(a) to appoint, suspend or dismiss employees drawing Rs. 1.00 or less subject to the control of the Managing Director or the committee as the case may be;
(2) To receive deposits and issue receipts as prescribed by the committee.
(3) to sell manufactured goods and to buy machinery, raw material, equipment and other requirements as directed by the committee or the Managing Director;
(4) to pay money due from the society;
(5) to incur contingent expenditure subject to the sanction of the committee;
(6) to sign on behalf of the Society and conduct its cor--respondence and to perform all duties assigned to him, by the Managing Director or the committee;
(7) to summon and attend all meetings of the managing committee, the sub-committee and the general meeting and to record the proceedings.
In view of the above, the learned counsel for the appellant vehe--mently contended that the respondent was not a workman.
5. From the perusal of Bye-law No. 33 it is clear that a sectional head cannot perform the duties of the managers of their respective branches unless those duties are assigned to them by the Managing Director. There is no documentary evidence on the record to show that the duties of a manager were ever sniped to the respondent. If the respondent was in fact acting as a Manager under bye-law No. 33 the appellant could have easily produced documentary evidence to prove that the duties of the manager had been assigned to the respondent. Since no documentary evidence is forthcoming on the record, it cannot be said that the respondent was performing the duties of a manager in his section. The office order Exh. P-2 on the contrary shows that the duties assigned to the respondent were only to maintain the records of cotton stocks and cotton purchases with the help of cotton branch running under his supervision. All the cotton purchases were to be made with the consultation of the Production Manager and the Administrator. It Is, no doubt, true that the respondent admitted that sectional heads manage the affaires of their branches and that be had been passing orders for the payment against certain bills but these actions did not bring him within the definition of employer as mentioned in section 2(viii) of Industrial Relations Ordinance, 1969, according to which an employer in relation to an establishment means any person or body of persons, whether incorporate or not, who or which employs workman in the establishment under a contract of employment and includes the persons mentioned in clauses (a) to (c) of the said section. There Is no evidence on the record to show that the respondent had power to employ workman in the appellant mill. It is an admitted fact that the appellant mill is now being run under the authority of the Cooperative Department of the Punjab Government, that the Managing Committee of the appellant mill was superseded and an administrator was appointed by the Registrar, Cooperative Societies and that he (the administrator) was exercising all the powers of the managing committee. The notification regarding the appointment of the administrator is Exh. P-3. Since the mill is being run under the authority of the Cooperative Department of the Punjab Govern--ment clause (c) of section 2(viii) of Industrial Relations Ordinance, 1969 is attracted to It and the administrator is the employer in the present case. It was contended by the appellant that in view of clause (d) of section 2(viii) respondent is not a workman.Clause (d) lays down that for the purpose of distinction from the category of workers or workmen, officers and employees of a department of the Central Government or a Provincial Govern--ment or a loyal authority, who belong to the superior, managerial, secretarial, directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers. This provision is not applicable to the respondent because he is neither an officer or an employee of the Central or Provincial Government or a local authority and has not been notified for this purpose in the official Gazette. Further clause (b) of section 2(viii) it also not applicable to the respondent because he was incharge of the cotton branch and not of the establishment as mentioned in the said clause. In view of the above it cannot be said that g the respondent is not a workman.
Therefore, this objection is accordingly rejected.
Preliminary Objection No. 2
6. It was contended that the Punjab Labour Court, Central Zone, Lahore, had no jurisdiction to entertain the petition of the respondent. This contention has no force because the respondent has been held to be a workman and petition is against his employer, therefore, the learned Court has jurisdiction to try the petition. This objection is accordingly rejected.
Preliminary Objections Nos. 3 and 4
7. In this connection It was urged that the reason why the service of the respondent were terminated because his post was abolished by the Registrar, Co-operative Societies, Punjab, Lahore. It was, therefore, contented that since the Registrar was not made a party to the proceedings the petition filed by the respondent was defective and as such was liable to be dismissed.
Since the petition was moved against the order of termination of services of the respondent It was not necessary to challenge the order of the abolition of his post by rte Registrar nor was the Registrar a necessary party. The appointment order EA. P-1 of the respondent clearly shows that he was appointed by the administrator and therefore, the Co-operative Textile Mill Khanewal Ltd., through its administrator was properly impleaded as respondent In the original petition. In view of the above I find no force in the contention raised by the appellant and the preliminary objections are accordingly, overruled.
Preliminary Objection No. 3
8. In this connection it was urged that the respondent after termination of his services filed a declaratory suit against the Cooperative Textile Mill, Khanewal Ltd., before the Civil Judge.
Khanewal on 1-7-72 to the effect that the respondent was an employee of the said mill and the abolition of his post was Illegal and void. It was prayed that perpetual injunction be issued against the mill to the fact that the said mill should not interfere in conditions of respondent's services of the mill. The said suit was dismissed as withdrawn under Order XXIII, rule 1, sub---rule (3), C. P. C. without permission for filing a fresh suit on the same cause of action. In view of the above it was contended that the respondent was precluded from filing the present petition before the Court below.
9. This contention has no force because In view of the labour laws a civil Court cannot take congnizance of such matters and therefore, the civil suit does not constitute a bar to the petition filed by the appellant Before the Court below. In any case the suit was withdrawn and not decided on merits and, therefore the principle of res Judicata cannot b6 attracted. I am fortified in this view by the judgment -of West Pakistan High Court in the case, Messrs Pakistan Tobacco Co. Ltd. v. Pale.
Cigarette Labour Union and others (PLD 1964 Kar. 337) wherein It was observed:- "It is well established rule of law that in order to support a plea of res Judicata the former decision must have been on the merits of the question in issue In the subsequent litigation."
Same view was held In another judgment of the West Pakistan High Court in the case, Half Ashfaq Ahmad Khan had others v. Custodian of Evacuee Property, Pakistan and others, wherein It was observed:- "In order to apply the principle of res judicata as embodied in section 11 of the Civil Procedure Code, 1908, two of the necessary essentials are that the matters should be between the same parties and that there must be final adjudication on the merits of the case. If a writ petition was dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order constitutes the question raised in the petition it would, be an order on merits. On the other hand, if the order does not constitute of the aspects of the case and disposes of the matter on some technical ground it cannot be said to be an order on merits so as to attract the principle of res Judicata: "
In view of the above this objection is overruled.
Preliminary Objection No. 6
10. It was contended that since the mill, was being run under the authority of the Punjab Government, statutory 'rules of Government servants in matters of service, conduct and discipline of the employees were applicable and as such the respondent had no locus standi to file the Instant petition. This objection has no force because the appellant did not produce any evidence to show statutory rules applicable to Government servants were applicable to the employees of the mill. In fact the appointment letter Exh. P-1 on the other hand shows that the appointment of the respondent was made subject to the rules and regulations governing the employees of the mill. It was nowhere stated that the rules applicable to Government servants would apply to the respondent. In view of the above this objection is also rejected.
ON MERITS
11. In the month of March 1972, one Mr. Piracha made a report against the respondent en the allegation that one Mr. Azim, brother of Assistant Cotton inspector who was not an employee of the mill was authorised to take weighment of cotton bales on behalf of the mil and on checking two bales were found 8J seers short. The respondent was thereupon issued a show-cause notice Exh.
P-4 asking him to explain as to why disciplinary action should not be taken against him. In the notice the aforementioned allegation was mentioned. The copies of the reports of the O. S. D. and the Office Superintendent duly attested by the administrator of the appellant mill show that the O.
S. D. In view of his report against the respondent had requested the administrator to place the cotton branch under the direct supervision and control of Rai Ahmad Khan. The administrator agreed to this proposal. The report of Office Superintendent shows that before entrusting the supervision to Rai Ahmad Khan, the question of utilization of the services of the respondent and the Assistant Cotton Inspector should be considered as according to the new policy of the Government that no worker employed can be discharged or dismissed before bringing the matter to the notice of the Government. On the basis of the above, a case for the abolition of the posts of the respondent and his assistant was prepared and sent to the Registrar who admittedly abolished these two posts on the basis of the report mentioned above and the orders of termination of services of the respondent and his assistant were accordingly issued. All these reports and the action taken by the Registrar show that the respondent was actually punished for misconduct without giving him any opportunity to explain the circumstances alleged against him. This action was not only against the procedure prescribed under Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 but also as not the principles of natural justice.
In the result the appeal a dismissed.