DECISION This is an appeal against an award dated the 30th of January, 1974, whereby the learned Presiding Officer Labour Court No. II, Karachi, re-instat* ed the respondent with full back benefits with continuity of service. The facts briefly put are these.
2. The respondent was employed as Administrative Officer of Lahore Branch on 25th of June, 1965 and was confirmed as such from the 26th of June, 1966. His consolidated salary on the date that his services were dispensed with was Rs. 750 per month that is on 1st of July, 1972. The case of the appellant from the very start is that the respondent is not a workman, lt is noteworthy that the respondent did not fight this objection and disclosed the nature of his duties in his affidavit or through the General Secretary. All that he stated was that he had no authority to appoint, discharge or dismiss. Mere want of authority to dismiss or to appoint will not make a person nonworkman. In this connection a reference may be made to a Dacca High Court Decision reported in PLD 1970 Dacca 712, in which the question arose about a supervisor who had no power to appoint or dismiss an employee. It was held that in spite of the absence of such powers he was not a workman. Pakistan Labour Cases 3. 148It appears to me that the learned Court started with a prejudice against the appellant. In this connection reference may be made to para. I of his Award. It runs as under :-- "This is the application filed by the applicant Razi Ahmed Farooqui who claims to be the permanent employee of the respondent having joined his service on 25-6-1965, and was confirmed on26-6-1966. The applicant claims to have formed a Trade Union in the month of March, 1972 of which he claims to be Finance Secretary due to which his services were terminated. According to him that termination letter was subsequently withdrawn on the condition that he would resign from the post of Finance Secretary which he agreed to do so and he was allowed to continue in the employment. Subsequently the respondent is alleged to have deviced another method of victimizing the applicant by making him to sign a contract of employment which was being renewed periodically which according to the applicant was in flagrant violation of mandatory provision of law as he was already a permanent employee vide confirmation letter No. 1-4-55/4/AC dated 26-6-1966 ^effecting from 1-2-1966. That the respondent vide letter dated 30-6-1972 terminated the services of applicant and declared him to be surplus for which the applicant submitted grievance petition to the respondent but the respondent did not care to reply it. There is no basis for the observation that the respondent was made to resign. In this connection reference may be made to the cross-examination of Mr. Amir Hussain, General Secretary of the Union. He stated that the respondent was a Member of the Union since its inception from 29-3-1972 up to June, 1972 Thereafter he resigned in the capacity of Finance Secretary due to his domestic affairs but he continued to remain as a Member of the Union. The observation of the learned Court that the appellant made the respondent to resign from the Office of the Finance Secretary is not borne out by the record of the case. In this connection a reference may also be made to para. 2 of the affidavit of Mr. Amir Hussain, General Secretary. It runs as under :-- "I say that Mr. Razi Ahmad Farooqui who is applicant in this case was Finance Secretary during March to May, 1972, when he resigned of his own accord. Management was informed of his election and I produce a copy of the Union's letter as Exh. P. W. 2/l." The best what can be said about the observation of the learned Court is that it forms part of the Written Argument of the Advocate of the respondent before the Labour Court. It is true that a contract of service was entered into from the 1st of July, 1969 for the period of two years and a protest letter was also sent on 26th June, 1969 about this agreement but when it was again renewed the respondent did not protest and kept quiet. If he had really any grievance he could have taken his case to Labour Court under Standing Order 18 if he was a workman.
4. The most important point in this case is as to whether the respondent can be said to be a workman. On behalf of the appellant this objection was1 taken at the earliest. Ail that the respondent stated in para. 10 of his Affidavit)5 runs as under :-- "That I was not an Officer in the sense as I could not take any disciplinary action against any or could engage or remove any one and there was no subordinate to me." It is noteworthy that the respondent did not specifically disclose the nature of his duties which he was performing. In this connection the observation of the learned Labour Court may also be noted, which runs as under :-- "Lastly it is case of the applicant that although he was appointed and designated as an Administrative Officer in fact he was doing only clerical job having no administrative powers of appointing and dismissing or even taking disciplinary action against anybody." It may be noted that this observation is not based on any evidence. In this connection I may make a reference to the affidavit of the respondent. In para. 7 of his affidavit at page 27 of the record of the leamed Labour Court he stated as under :-- "In May, 1972, the Company had appointed another person as an Administrative Officer. He is performing the same duties as I was performing. He had been retained in service." The above statement would disclose that the respondent is an officer and not a workman on his own admission.
5. The Supreme Court in a number of cases from time to time had observed the role Labour Court had to play while administering justice. The earliest case is that of Dalmia Cement Limited (1) in which it was observed :-- "An Industrial Tribunal adjudicates on rights and liabilities, has most of the indicia of a Court and exercises judicial powers of the State. It is no doubt not strictly bound by the rules of evidence, but that does not mean that it could act on mere conjecture and its own ideas of social justice. In the discharge of its duty of adjudication it should act on material properly brought on record and law applicable to the matters in dispute. Where the Tribunal had acted more as a benevolent despot than as a functionary exercising judicial powers and its findings were based on mere guesswork without a factual basis and in disregard of relevant statutory provisions." The next case is that of Sui Gas Transmission Company Limited (2). In that case also similar observation has been made. It was observed :-- "An Industrial Tribunal is not to act as a benevolent despot, or to clutch jurisdiction where it does not exist. It is true that a Tribunal dealing with an industrial dispute is not a Court in the sense that it is strictly bound by the rules of evidence but that does not mean that it can act on mere conjecture and its own peculiar ideas of social justice. It is obligatory on its part to act within the jurisdiction and according to the law applicable to the matter in dispute." Another case is that of Kamaphully Paper Mills Ltd. (3), in which Carnelius, C. J., as he then was observed as under :-- "Tribunal is not in a position to give bounty out of goodness of heart." In the case of Muhammad (4) Fazale-Akbar, J., observed as under :-- "Industrial Court cannot act on mere conjecture and on its own peculiar ideas of social justice-- Court bound to act within its jurisdiction and according to law applicable to dispute." (2) 1960 PLC 80 (4) 1964 PLC 572(1) PLD 1958 SC (Pak.) 153 (3) 1961 PLC 991 The last case cited by the Representative of the appellant is that of Bannu Woollen Mills (1) in which Hamoodur Rehman, J., as he then was, observed as under :-- "Industrial Court to act as a functionary exercising 'judicial powers' though not confined strictly within limits of Civil Procedure Code (V of 1908) or Evidence Act (I of 1872)--Duty to adjudicate between the rights and liabilities in judicious manner after applying its mind to relevant material brought on record and law applicable--Court cannot act on 'mere conjecture* and its own peculiar ideas of social justice."
6. The learned Advocate for the respondent laid great emphasis on Exh. A-3 dated April 28, 1972. It is an Office Order shifting certain employees from Industries Division Building to Head Office Building from 2nd of May, 1972. It is noteworthy, that in that letter also the respondent was designated as Administrative Officer.
Shifting from Head Office he was required to perform the following duties. It runs as under :--> "Mr. Razi Ahmad Farooqui, will sort out the records, files etc. stored in the Head Office and Industries Division Building and arrange them properly. He will utilize the services of Mr. Sultan Ali Shah, Peon, for this purpose." On the basis of this fresh duty assigned to the respondent it was very strenuously contended by Mr. Kamal Mansur that this was his only duty which he was required to perform from 2nd of May, 1972. I do not see any basis for this construction. There is nothing on record of the office order to lead one to this conclusion that the respondent was required to perform only the duty of sorting out record and arrange them in order. On the other hand Exh. A-4, dated 25-1-72, Exh. A-5, dated 26-1-72 and Exh. A-6, dated 17-1-72, there are notes on these Exhibits, made by the respondent. On Exh. A-4 he noted "entitled for l2 days' casual leave". On Exh. A-5, the note says 'Availed 2 days' casual leave and is now entitled for 8 days' casual leave". On Exh. A-6, there is a note 'there is no fresh leave two days* casual leave may be sanctioned'. The initials on all these Exhibits, are admitted by the respondent. At any rate the respondent having himself admitted that the present Administrative Officer is performing the same functions which he was performing, he cannot be allowed to claim that he is a workman.
7. The services of the respondent were terminated under the terms of his contract as I have already observed that the respondent protested only once in 1969 but thereafter he kept quiet. Moreover as he is not a workman the provisions of Standing Orders Ordinance are not attracted in his case. The services of the respondent, therefore, were rightly terminated in terms of the contract.
8. For the reasons given above the Appeal is allowed and the Award of the learned Labour Court is set aside. (1) 1966 PLC 305