JUDGMENTIHSAN-UL-HAQ CHAUDHARY J:- The petitioner through this Constitutional petition has prayed for declaration that the orders dated 10.8.89 and 31.10.1989 passed by respondents No. 2 and 1 respectively are without jurisdiction, unlawful and of no legal effect.
2. The facts giving rise to this petition are that respondent No.3 was employed with the petitioner as Field Assistant. The petitioner initiated disciplinary proceedings against the said respondent for unauthorised absence from duty from 15.6.1986 to 24.6.1986. The employee was served with a show cause notice and ultimately dismissed vide order dated 28.7.1986. The respondent No.3 submitted a grievance petition before respondent No.2 who accepted the same vide order dated 14.5.1988.
The petitioner filed an appeal before the respondent No.1. The appeal was accepted vide order dated 13.7.88 and case was remanded to respondent No.2 for fresh decision after allowing both the parties to produce evidence on the point of 'workman'. The parties produced evidence whatsoever they wanted to produce. The respondent No. 2 once again accepted the petition of the employee.
The order is dated 10.8.1989, which was impugned through an appeal before respondent Nol, who dismissed the same vide order dated 31.10.1989. The petitioner has now impugned these two orders through the present petition.
3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No.3 has alone appeared and contested the petition while other respondents were proceeded ex-parte.
4. The learned, counsel for the petitioner in support of the petition has argued that the respondent- employee was not covered by definition of workman. He was neither doing any manual work nor clerical duties. In this behalf reliance is placed on the cases of Ganga R.Madhani Vs.Standard Bank Ltd and others (1985 S.C.M.R. 1511) and Chairman Brooke Bond (Pak'l Ltd Vs.General Secretary, Union Karkunane Brooke Bond fPakl Ltd. Rawalpindi (P.L.D. 1969 Lahore 717).
5. It is added that incidental and ancilliary duties, which one has to erform in relation to his basic duty will not make him a worknan. The regard hould also have to be to the basic duty of the employee. In this behalf reference s made to I.C.I. Pakistan Manufacturers Ltd. Vs.Muhammad Iftikhar Ahmad 1986 P.L.C.1133) and Mubarak Ali Bashir Vs.Branch Manager. Lipton (Pakl to.
Sargodha (1989 P.L.C.916). The learned counsel submitted that the Courts low wrongly referred to and relied on Ex: P13 because the same came into xistence after the dismissal of respondent No.3.
The other argument of the arned counsel for the petitioner is that respondents No.1 and 2 wrongly held that e dismissal order of respondent No. 3 was violative of section 8-A of I.R.O. It is bmitted that the petitioner was not at all aware of the formation of Union and the fact that the said employee was its General Secretary. It is further bmitted that this point was not agitated by respondent No.3, before lower ourt.
6. On the other hand, learned counsel for respondent No.3 has argued that the petitioner has treated his client as "workman'.It cannot turn down and deny that status to him. The argument in nut shell is that the petitioner initiated disciplinary proceedings against respondent No.3 under West Pakistan Industrial and Commercial Employment (Standing Orders ) Ordinance, 1968 and dismissed him treating him as a 'workman,' therefore it is now estopped by its own conduct to deny that status to the said respondent. In this behalf learned counsel has referred to the case of Rehmat Ali Vs.Securitv Papers Lts. And another (T.L.D 1982 Karachi 913). The learned counsel further submitted that the preliminary objection raised by the petitioner was vague and infact the objection was that after dismissal the respondent No.3 ceased to be a workman and cannot maintain grievance petition. It is added that duties of his client clearly made him workman because survey includes completing of survey sheets. It is added that in any case, the respondent No. 3 is not excluded from the definition of workman. In this behalf reliance is placed on the case of Shahzad Khan Vs.Sind Labour Court No.4 Karachi and 2 others (1977 S.C.M.R 103), and Organization of Karachi Port Turst WorkersCA Registered Trade Union Karachi Vs.Karachi Port Trust Karachi and 2 others (1988 S.C.M.R 922). The arguments on this point are concluded with the submission that infact his client was appointed as Lower Division Clerk and in that Capacity he was transferred so perform duty of Field Assistant, therefore, he did not lost his status as a Clerk and as such he was fully covered by the definition of workman. On the other point it is submitted that respondent No. 3 and others submitted papers for registration on 19.7.1986 and the same day the petitioner was telegraphically informed. The telegram is Ex:P9 on the file, therefore, the order of dismissal passed on 28.7.1986 is violative of provisions of section 8-A of the I.R.O.
The learned counsel for contesting respondent has further raised two preliminary objections as to the competency of this writ petition. The first objection is that the petition raises disputed question of fact, which have been concluded with concurrent findings of Courts of competent jurisdiction.
Secondly, that the conduct of the petitioner is not fair. It has failed to reinstate the respondent as required under law. It is added that even if the allegations of the petitioner are accepted on their face value still the petitioner was not guilty of misconduct because petitioner remained absent only for 10 days while unauthorised absence warranting disciplinary action has to be for more than 10 days. The learned counsel in this behalf has referred to the provisions of Order 15 (3-E) of the Standing Orders and to the case of General Manager. Hotel Intercontinental Rawalpindi Vs.Muhammad Hanif and others11985 P.L.C 257).
7. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record and precedents referred to by them. Now I proceeded to deal with the arguments of the learned counsel of the petitioner to the counter reference to the argument of the learned counsel for the respondent. The first argument was that respondent No.3 was not a'workman 'because neither he was doing any manual work nor clerical. It was added that the completion of survey sheets is just consequential and incidental to the survey work, therefore, it was not integral part of his duty. The argument is superficial and without any merit. The word 'survey* presupposes visit and recording of observations. Both these functions have to be performed at one and the same time, therefore, the completion of the sheets was integral part of the duty of respondent No. 3. There cannot be any survey without recording its result. It will be just site seeing and definitely he was not employed for this purpose. The cases referred to by the learned counsel for the petitioner on this point are not relevant because there is no symbolance of the duty of the employees in there cases to the 'surveyor'. There comes roster of duties of Field Asst.
Ex:P13 it is true that Ex: P13. It is not relevant as it was issued after the termination of service of respondent No.3 but it clearly indicates the nature of the duties a Field Asst has to perform. It is not the case of the petitioner that this system was introduced for the first time. Therefore, Ex: P13 was rightly taken into consideration.
8. The other submission was that the dismissal order was not violative of section 8-A of Industrial Relation Ordinance because the petitioner was not aware of the formation of the union by the respondent No.3 and others. On the other hand, learned counsel for employee has referred to telegram Ex: P9. The same is dated 19.7.1986 while the order of dismissal of the petitioner was passed on28.7.1986. Before proceeding any-further, it is relevant to refer to section 8-A. The same reads as under:- 8-A "Transfer, etc., of officer of trade union during pendency of application for registration Save with the prior permission of the Registrar, no officer of a trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of the officers to the employer in writing."
It is clear from the text of the section that the permission of Registrar is a pre-requisite for transfer, discharge, dismissal or otherwise punishing officer of the trade union or workman during the pendency of application for registration of trade union with the Registrar. The petitioner admittedly did not comply with this legal requirement.
9. The learned counsel for respondent No.3 submitted that even if the allegations against his client are accepted as correct, still the same were not covered by the mischief of 'Misconduct'. The argument in nut shall is that to convert unauthorised absence into mis-conduct the period of absence must be more than 10 days. The learned counsel has referred to definition of 'misconduct and relied on the case of General Manager, Hotel Intercontinental, Rawalpindi. The misconduct has been defined in order 15(3-e) which reads as under:- "(3) the following acts and omissions shell be treated as misconduct:-
(a) ............ (b) (c) (d) (e) habitual absence without leave or absence without leave for more than 10 davsIt is, therefore, clear that the petitioner proceeded on wrong assumption. There was in-fact no valid basis to initiate disciplinary proceedings. Therefore, the dismissal order was unjustified and illegal. The submission the learned counsel for respondent No. 3 was that if this writ petition is allowed then it will amount to perpetuating an illegal order. The submission is not without merit.
This ground is sufficient to refuse any relief to the petitioner.
(b)
The result is that there is no merit in this petition. The same is dismissed with costs.