DECISION The circumstances in which this appeal, against the order dismissing the petition for reinstatement in service, has arisen are as follows.
2. The petitioner was appointed an Office Secretary, Human Resources Division of the respondent- Company on 1-2-1990. One of the duties assigned to him was to interview candidates applying for various jobs that the Company had to offer.
3. On 2-10-1991 he was served with a show-cause notice which reads as under:-- "It has been complained by Ms. Kaniz Fatima, a temporary worker that on September 26, 1991 you called her to obtain further information and to complete certain formalities with regards to her temporary employment. She came to you at about 11-30 a.m. For the said purpose, when according to her you misbehaved with her by making some advances on her.
The above act on your part constitutes serious disorderly behaviour and act of subversive of discipline.
We have now received an explanation from you dated October 2, 1991 in response to the copy of the complaint of Miss Kaniz Fatima, supplied to you vide our covering letter dated September 29, 1991.
You may give any further explanation to the show-cause notice now issued to you within 24 hours or inform us whether we shall treat your present explanation as reply to the show-cause notice.
In the meantime as the incidence seems to be sensitive, you are hereby suspended for a period of 4 days pending investigation i.e. From October 3,1991 to October 6,1991."
3. He had submitted the reply but that did not satisfy the Management. An Enquiry Committee was, therefore, constituted to investigate into the matter. It consisted of three persons namely: (1) Ali Raza Zaidi, Senior Manager, Warehouse, (2) Mir Naeem, Product Manager and (3) Mehboob Hussain, a workman of the Company in the Engineering Department, who was also an office- bearer of the Union.
4. The petitioner had protested against the inclusion of Mehboob Hussain in the Enquiry Committee but the same was politely turned down. The petitioner had, thereafter, participated in the proceedings where apart from Kaniz Fatima the complainant, Irfan Patel, Ehsan Azeem and Jamil Ahmed Qureshi were examined on behalf of the complainant, while Qaiser Fatima, Muhammad Qamar, S. Tanweer Muhammad, Rizwan Qmar and I.R, Siddiqui were put in as defence witnesses.
Inquiries were made from the petitioner also, wherein he was subjected to cross-examination by Kaniz Fatima.
5. The Enquiry Committee unanimously found the petitioner to be guilty of misconduct and the dismissal order followed on 16-10-1991.
6. The petition came to be resisted, inter alia on the ground that the petitioner was not a workman.
7. The petitioner was his own witness. S. Tanweer Muhammad and Ali Raza Zaidi appeared on behalf of the respondents.
8. The Labour Court fording that the petitioner was not a workman dismissed the petition culminating in this appeal.
9. Nobody was present on behalf of the appellant. I had heard Mr. Qamaruddin Hasan on behalf of the respondents, and kept the appeal for orders after 3 weeks, leaving it open to Mr. Haque to submit his arguments in writing, if he so chose. He did not avail the opportunity.
10. The appellant has stressed that he was a workman and was doing clerical work. He has stated in his affidavit that "for all purpose I was a workman performing clerical work/job which include (1)
Typing, (2) Telephone Operating, (3) Maintaining personal files of staff as well as workers, (4)
Computer operational work, (5) Operating Fax Machine as well as Telex, (6) Checking daily wages workers attendance and tabulating their wages, (7) Distribution of Human Resources Dak to other Departments. I was Office Secretary and as such performing the Clerical Duties of the Company."
He added that nobody was working under him, nor was he vested with the powers and to grant, or even recommend any leave application. But on his own showing he was neither a Member of the Union nor was getting any benefits out of the settlements.
11. He began by saying that he was not interviewing candidates applying for company's jobs or screening them and recommending their selection, but he was confronted with a number of documents pertaining to Miss Ishrat and Altaf Hussain whom he had recommended to be suitable for the post they had applied for. He had also admitted that they had been appointed after the interview. These documents belie his statement. The genesis of this very dispute is the interview of Kaniz Fatima, and what followed in its wake.
12. S. Tanweer Muhammad in his affidavit has stated that the appellant was working in the Officer's Grade and the nature of his job was to take interviews, screen the candidates, recommend the selection of temporary workers including the female workers and to do some other assortment of administrative and managerial functions.
13. He has also furnished the `job description' of the appellant which reads as under:-- "(1) All matters relating to non-exempt temporary workers (e.g. Appointment, termination, resignation, record-keeping etc.).
(2) Daily Wages Voucher (Attendance check, record etc.)
(3) Birthday card (both exempt and non-exempt staff).
(4)To act on behalf of management, to take interviews, screening the candidates and to recommend the selection of temporary workers including the female workers.
(5) Trainee, temporary and in torn attendance (all exempt employees).
(6) All matters relating to medical claims (both exempt and non-exempt staff).
(7) Updating of non-exempt employees record on P.M.S. As and when required.
(8) To perform administrative and managerial functions as and when assigned from time to time.
(9) Performing any and all other duties as and when required and asked by the superiors."
14. It is a trite proposition of law that it is not the pay or the designation which determines the status of an employee, but only the job which he is basically doing day in and day out. If the nature of the work is supervision the mere fact that such person is doing something with his own hand incidentally will not make him a workman. That was the principle laid down in a series of cases (See General Manager, Hotel Intercontinental v. Bashir A. Malik PLD 1986 SC 103) and Shahi Bottlers Ltd. v. Punjab Labour Appellate Tribunal and others 1993 SCMR 1317). In the circumstances of the case I agree with the learned Presiding Officer that he was not a workman. However, I will advert, though briefly, also to the merits of the case.
15. Mst. Kaniz Fatima had applied for a job on the 5th September, 1991. She had submitted the application alongwith the necessary documents. She had also supplied her photographs as demanded. Admittedly she had been given the temporary job and started working from the 24th.
Two days thereafter the appellant had sent for her to the Chamber of one Nadeem Jabbar to meet him as the form- submitted by her was not complete. The message had gone through Irfan Patel, who has been examined as a prosecution witness, when Kaniz Fatima had turned up, the appellant had made lewd overtures which she resisted. When the. Advances had been repeated she had opened the door and ran out of the room in a distraught condition.
16. Jamil Ahmed Qureshi had seen her wrought up coming out of the room and asked her as to, what had happened to her. With not a little hesitation she had opened her lips to the happenings.
The word had spread and the matter appears to have been taken up by the Union. The inclusion of Mehboob Hussain as a Member of the Enquiry Committee appears to have been on that ground.
17. There is also support forthcoming from Ehsan Azeem though derivative in nature. The documents filed by Kaniz Fatima had been seen by the Members of the Committee and according to their finding these were complete. It is also an admitted position that Kaniz Fatima had started working from the 24th.
18. It is true that the appellant denied sending for her on the 26th but the circumstances and the array of evidence led against the appellant leaves no doubt that Kaniz Fatima had been called in with the design to satiate his lust. Even two of his witnesses namely Muhammad Oamar and Qaiser Fatima refused to have their statements recorded during the enquiry and Rizwan Omar gave a vague reply to the question put to him. Even S. Ta0weer Muhammad Dr. Siddiqui had not a word in support of the appellant. S. Tanweer Muhammad states that it was on his suggestion that the complaint had been submitted by Kaniz Fatima and he had asked for an explanation from the appellant. He also added that because of the sensitive issue involved, a representative of the Union had been put on the Enquiry Committee. There was nothing from Dr. Siddiqui, which could come to the appellant's assistance.
19. A charge like this is not lightly made and that too by a girl who had joined the Company only two days earlier. There is a ring of truth in the allegation. What is more the circumstances speak eloquently enough. Seemingly the appellant had tried to take advantage of the helplessness of a girl who was trying to augment the family resources.
20. There is no merit in this appeal. I will, therefore, affirm the order and dismiss the appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.