DECISION ' This is an appeal against the order, dated 26-2-1989, passed by the learned Presiding Officer, Sindh Labour Court No, VII at Sukkur whereby the respondent was ordered to be reinstated in service with fifty per cent back benefits.
2. The brief fact of the case are that on 22-7-1986 a show-cause notice was issued to the respondent, who was Purchase Officer, PASSCO, Jacobabad Zone, for remaining absent without application from 11-7-1984. After domestic enquiry his services were terminated by order, dated 14- 9-1986.
3. I have heard Mr. S.M. Saeed, learned Advocate for the appellants and Mr. Abdul Hameed Khan, learned counsel for the respondent and have also gone through the record and proceedings of the case.
4. Mr. S.M. Saeed has raised two legal objections firstly, that the learned Labour Court at Sukkur had no territorial jurisdiction and secondly, that the respondent was not a workman and therefore the learned Labour Court had no jurisdiction.
5. It is submitted by Mr. S.M. Saeed that at the relevant time the respondent was posted at 'Usta Muhammad', Naseerabad Sub-Division of Baluchistan Province and as such the Labour Court at Sukkur had no jurisdiction. In his support he has relied upon the grievance notice given by respondent which is Exh. 2-A wherein he stated that in July, 1984 he was posted in Usta Muhammad. It may, however, be pointed that in the show-cause notice, dated 22-7-1986 which has been produced by the respondent alongwith their reply statement as Annexure `E-2' the respondent is addressed as Purchase Officer, Jacobabad Zone. In the dismissal order which is Annexure "I" to the grievance petition the respondent is addressed as Purchase Officer, PASSCO, Jacobabad. The copy is also addressed to Zonal Incharge, PASSCO, Jacobabad. His designation as Purchase Officer, Jacobabad Zone in the show-cause notice indicates that his office was at Jacobabad, though he may be at Usta Muhammad for the purpose of purchases in 1984 which was also admittedly is in Jacobabad Zone. It is not disputed that Jacobabad is within jurisdiction of learned Labour Court Sukkur. From these two documents of the appellants viz. The show-cause notice and the dismissal order which in fact gave cause of action to the respondent, he is shown to be posted at Jacobabad and as such the learned Labour Court did have territorial jurisdiction.
6. Adverting to the second objection of Mr. S.M. Saeed it may be pointed that though the respondent is designated as Purchase Officer but it is settled law that designation is not the only deciding factor but the nature of duties that the employee performs determines the question as to whether he was workman or not. The respondent in his statement has stated that though designated as Purchase Officer his duties were clerical and manual in nature. In the cross- examination he denied that his work was of supervisory nature but asserted that he was doing work of a clerk. Mr. Munawar Ali Shah, witness of the respondent who was Administrative Officer of the respondents states in his affidavit-inevidence that duties of the respondent were managerial and Supervisory in nature. However, there is no evidence on record to show that there was any staff working under the respondent. If no other staff was working under the respondent then it is not understood as to whose work the respondent could have supervised or managed. It is submitted by Mr. S.M. Saeed that the work of the respondent was to make purchases, maintain registers and arrange for the despatch of the purchased material. He however contended that purchases were made by the respondent as Agent or Representative of the employer and therefore he could not be workman. The duties admittedly performed by the respondent involve manual as well as clerical work. As there was no other staff to assist him he had to do everything on his own and therefore he could not be said to be acting as Manager or Supervisor. Every employee, in fact, was Agent of the employer and that alone would not take him out of the definition of the workman under the I.R.O.
Unless he is employer or works in Managerial or Administrative Capacity or performs duties as Supervisor drawing salary of more than Rs,800 per month. Looking to the circumstances of this case there could be no dispute that the respondent was workman as defined under the I.R.O., 1969.
7. It is submitted by Mr. Abdul Hameed Khan, learned counsel for the respondent, that no notice of enquiry was served upon the respondent and that he did not abscond from duty. The respondent is alleged to have absconded from duty in 1984 but strangely the appellants slept over this misconduct and served show-cause notice upon him after two years. This delay which is not explained makes the case of the appellant with regard to the allegation of the ascendance of the respondent doubtful. His admission that he remained absent in 1985 because he fell ill and submitted his application would not show his abscondence from 1984. He has denied in the cross- examination that he remained absent from 1984. He has also denied to have received the show- cause notice. Admittedly this show-cause notice or notice of inquiry was not sent to the respondent by registered post but it was sent to him through Zonal Office and through postal certificate. No person from the Zonal Office has been examined to prove the service of notice upon the respondent. No Postman has been examined to show that the letter sent through Postal Certificate was served upon the respondent. Under section 27 of the General Clauses Act, 1897 'service by post would mean service by registered post'.
8. In view of the statement on oath by the respondent that he did not receive the notice it could not be presumed that the letter allegedly sent under Postal Certificate was received by the respondent in absence of any other proof showing the services of notice upon the respondent. Thus enquiry, if any, was held without service of nature of enquiry upon the respondent and was against the principle of natural justice and any order passed on the basis of such enquiry is not sustainable. It has rightly been set aside by the learned Labour Court. I, accordingly, dismiss the appeal.