The petitioner through this Constitutional petition has prayed for declaration that the orders dated 10-8-1989 and 31-10-1989 passed by respondents Nos. 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 13-7-1988 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 No, 1, 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 v. Standard Bank Ltd. and others 1985 SCMR 1511 and Chairman Brooke Bond (Pak.) Ltd. v. General Secretary, Union Karkunane Brooke Bond (Pak.) Ltd., Rawalpindi PLD 1969 Lah. 717.
5. It is added that incidental and ancillary duties, which one has to perform in relation to his basic duty will not make him a workman. The regard should also have to be to the basic duty of the employee. In this behalf reference is made to ICI Pakistan Manufacturers Ltd. v. Muhammad Iftikhar Ahmad 1986 PLC 1133 and Mubarak Ali Bashir v. Branch Manager, Lipton (Pak.) Ltd., Sargodha 1989 PLC 916. The learned counsel submitted that the Courts below wrongly referred to and relied on Exh. P.13 because the same came into existence after the dismissal of respondent No,
3. The other argument of the learned counsel for the petitioner is that respondents Nos. 1 and 2 wrongly held that the dismissal order of respondent No, 3 was violative of section 8-A of I.R.O. It is submitted that the petitioner was not at all aware of the formation of Union and of the fact that the said employee was its General Secretary. It is further submitted that this point was not agitated by respondent No, 3, before lower Court.
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 nutshell 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 v. Security Papers Ltd. and another PLD 1982 Kar. 913. The learned counsel further submitted that the preliminary objection raised by the petitioner was vague and in fact 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 v. Sindh Labour Court No,4 Karachi and 2 others 1977 SCMR 103 and Organization of Karachi Port Trust Workers (A Registered Trade Union) Karachi v. Karachi Port Trust, Karachi and 2 others 1988 SCMR 922. The arguments on this point are concluded with the submission that in fact his client was appointed as Lower Division Clerk and in that capacity he was transferred to perform duty of Field Assistant, therefore, he did not lose 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 Exh. P.9 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 questions 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 v.
Muhammad Hanif and others 1985 PLC 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 I 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 these cases to the `surveyor'. There comes roster of duties of Field Asstt. Exh. P.13. It is true that Exh. P.13 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 Asstt. has to perform. It is not the case of the petitioner that this system was introduced for the first time. Therefore, Exh. P.13 was rightly taken into consideration.
8. The other submission was that the dismissal order was not violative of section 8-A of the Industrial Relations 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 Exh. P.9. The same is dated 19-7-1986 while the order of dismissal of the respondent No, 3 was passed on 28-7-1986. 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 prerequisite for transfer, discharge, dismissal or otherwise punishing an officer of the trade union or workman during the pendency of application for registration B 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 nutshell is that to convert unauthorised absence into misconduct 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 shall be treated as misconduct:- (a)......................
(b).....................
(c).................... habitual absence without leave or absence without leave <u>for more than 10 days</u>.
It is, therefore, clear that the petitioner proceeded on wrong assumption. There was in fact no valid basis to initiate disciplinary proceedings. Therefore, the C dismissal order was unjustified and illegal. The submission of the learned counsel for respondent No, 3 was that if this writ petition is now 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.
The result is that there is no merit in this petition. The same is dismissed with costs.