DECISION These are two connected appeals which are directed against an Award of the learned Presiding Officer of Labour Court No. V, Karachi, under section 32 (1-A) of the Industrial Relations Ordinance, 1969, (hereinafter called the 'Ordinance'). The Award is dated 14th of May, 1974. The appeal by the Management was filed on the 11th of June, 1974 and that by the Unnio on the 13th of June, 1974. The learned Presiding Officer by the Award allowed only one demand namely about the Gratuity. He had come to the conclusion that the Management employed less than 49 persons in the preceding year.
2. Mr. Khalid Jamil, the learned Advocate for the Management (respondent) in the appeal of the Union had taken a Preliminary Objection that the appeal is not maintainable as it has not been properly filed inasmuch as it has been signed by the Joint Secretary who had no authority to do so. He has filed a written preliminary objection supported by the Constitution of the Union. In this connection Mr. Khalid Jamil contended, in the first place, that relying on the constitution of the Union, Zar Jamil, who has signed the Memorandum of Appeal as Joint Secretary is not authorised to do so. It is only the General Secretary who can sign the Memorandum of Appeal. He has filed a copy of the constitution of the Union. Mr. Wasi Ahmed, the learned Representative of the Union has not denied the contents of the constitution of the Union. In this connection, para, l2 (c), which deals with the powers of the General Secretary, reads as under :-- "General Secretary -- He shall be the custodian of all the records and documents of the Union, shall initiate and sign correspondence, approve vouchers, issue agendas of meetings, record minutes of all meetings. The Joint Secretary shall assist the General Secretary who may also assign specific jobs to him. The Joint Secretary so authorised by the Managing Committee shall act as General Secretary when the latter is absent" Moreover, Mr. Khalid Jamil has also filed a list of members and office-bearers of the Union. Mr. Zar Jamil is not shown as Joint Secretary. One Mr. Taj Muhammad is shown as Joint Secretary. The possibility, however, is that Mr. Zar Jamil may have, in the meantime, been elected as Joint Secretary cannot be ruled out. The List is dated 5th of April 1973. The fact, however, remains that there is nothing on the record that Mr. Zar Jamil had any authority from the Managing Committee to act as General Secretary of the Union or to perform the duties of General Secretary in his absence. I would accept the contention of Mr. Khalid Jamil and hold that the appeal is not validly filed. It is, accordingly, dismissed.
3. So far as the Appeal of the Management is concerned it must be allowed. Under section l'of the Standing Order Ordinance, 1968 (hereinafter called the 'Standing Order') section l2 has not been applicable to the Industrial Establishments which employed not more than 49 persons on any day preceding l2 months. There is ample evidence on the record to establish that the Industrial Establishment namely the appellant Management did not employ 49 persons on any day during preceding l2 months. The Management had filed a List of all the persons employed by it. It is at page 139 and page 141.
Annexure 'N' at page 139 of the record of the Labour Court gives the List of Workers on 30th of November, 1972 while Annexure 'O' at page 141 of the record of the Labour Court gives the list of the Employees on 30th of November, 1972. Annexure 'O' is List of Employees including 'Sales Manager', 'Production Manager', Chemists and 'Assistant Production Manager' etc., who cannot be said to be Workmen. I would hold that as the Management did not employ more than 49 persons on any day preceding l2 months the Gratuity should not have been granted. Moreover, there is a Chartered Accountant's Certificate that the Management had suffered loss which has not been challenged by the Union. Mr. Wasi Ahmed, the learned Representative of the Union laid emphasis on the words 'in the first instance' occurring in the proviso under section 1 of the Standing Orders Ordinance, 1968.
To ray mind 'in the first instance* only means 'in the first place' and nothing more.
4. For the reasons given above the Appeal of the Management is allowed and the Award of the learned Labour Court is set aside.