DECISION This appeal calls in question the order of the Labour Court No. V, Karachi, whereby the petitioner came to be reinstated in service with full back benefit. The circumstances in which the appeal arises are as follows:- The petitioner was appointed as a Secretary of the respondent-- company in the Secretariat Group against a salary of Rs.29,400 per annum. On the completion of the probationary period of 6 months, an agreement was executed, according to which she was to be paid Rs.30,876 per annum.
She was working as the Confidential Secretary to the Business System Manager, when her services came to be terminated on 3-2-1991. The letter reads as under:-- "We regret to inform you that for reasons explained to you, your services are no longer required by the Company, and hence terminated with immediate effect. In terms of the agreement of service you will be paid three months salary in lieu of notice. Any balance of un-availed leave will also be en-cashed at the time of payment of final dues.
The Personnel Manager will be writing to you separately concerning payment of your legal dues."
2. On 11-2-1991, she had sent the grievance notice and three weeks later filed the petition before the Labour Court.
3. The petition was resisted on numerous grouns. It was alleged that a "terminated employee is not a workman, her services were not terminated in consequence of any industrial dispute and under the Agreement entered between the parties, the dispute had to be referred for arbitration, and that was not done. The petition was otherwise too not maintainable as she was employed in managerial capacity i.e. Junior Manager, and because of her malicious and irresponsible behaviour, she could 'not be imposed on the company. Inter alia it went on to say that in terms of the Agreement, the respondents were not bound to give any reason for the termination of her service. After giving considerable attention to her domineering temper and other traits of character, it ended by saying that "the respondent is willing to use its good office to get her a job, if she sends a request to the respondent for this purpose".
4. The petitioner was her only witness, while Malik Muhammad Umar Khan, Analyst Programmer, Abdul Hammed Memon, National Industrial Relations Manager, Arif Chosky, Head of the Business System Department, Muhammad Farooq, photocopy machine operator, Mrs. Margery Rahman Personnel Manager and Khawaja Naeem Saeed, Data Processing Manager, appeared on behalf of the respondents. Affidavits of Seima Muzaffar Senior System Analyst and Farid Iqbal were also filed, but since they were not made available for cross-examination, these have got to be excluded from consideration.
5. The Labour Court finding the petitioner to be a workman, and the termination of her service, not in accordance with law allowed the petition with full back benefits, culminating in this appeal.
6. It might as well be mentioned that one of the clauses of the Agreement referred to earlier, envisaged that in the case of any dispute between them, the same "shall be referred to the Arbitration of two indifferent persons------.---
7. This challenge to the jurisdiction was taken up by the Labour Court, for preliminary hearing and was repelled. Then these followed an application under section 38(3-A) of the I.R.O. Before this Tribunal which met the same fate and the matter presumably ended at that.
8. The majority of the respondent's witnesses came to the Court only to provide detail about the failings and foibles of her manner and behaviour and even those like Margery Rehman the Personnel Manager, and Abdul Hameed Memon and Arif Chosky whom the respondent had served as Confidential Secretary in 1986, and from 1986 to 1989 respectively did not lag behind. Under the circumstances, it is rather surprising, that she was not the worse for it, and it stated to have been receiving a pay of about Rs.10,000 per month, when her services were terminated in 1991. It is a pity that they were not advised that this narration will be totally irrelevant for the resolution of this dispute here.
We must, therefore; advert to the question, whether the respondent is a workman, as she alleges to be, and has been so found by the Labour Court, or she was holding an office of supervisory capacity?
10. She has detailed the nature of her duties and job in the affidavit as under:-- "(3)That I say that I was employed m respondent establishment over since 1982 as workman discharging mainly clerical work, namely filling work, Des-patching and receiving mail, attending telephone, sending fax, operating computer and taking out photo copies, noting the appointments of officers, maintaining the record. Also attending calls and noting down such instruction as officers required me to do. The mail received meant for officers was delivered by me to the relevant officer.
As and when required Air passage was to be booked for officers.
(4)I specifically say that I was not supervising anybody's work, no one was working under me nor I was in-charge of any peon or sweeper. I was working as a subordinate clerk doing skilled clerical job."
11. A question was put to her, whether the post of the secretary which she was occupying was equivalent to the post of Junior Manager in the respondent's establishment, and she had shown her ignorance about it. She admitted that she was a member of Contribution Funds but did not know, whether it was towards the management group or any other group. She was getting medical facilities for herself and her family members, but did not know if the ordinary workers got fixed amount for their spouses". These were followed by a question or two of the same ilk.
12. The Written Reply describes her job description in the following words: "(e) The applicant is not even a `workman' under Standing Order Ordinance as she is doing something at higher level than merely skilled/unskilled, manual or clerical work. Nor is she otherwise covered by clause 2(i) of the Ordinance. She is, in fact, a Management Executive category as her appointment letter/Agreement filed by her clearly shows. She worked mainly independently.
(f) The applicant, who is mainly employed in Managerial capacity i.e. Junior Manager is not a workman within the meaning of section 2(28) of IRO. `
(1) With reference to para. 1 of the application it is denied that the applicant was employed as a `workman' as alleged. As per letter of appointment and the Agreement (Annexures `A' and `B' with the application), the applicant was employed in a managerial category enjoying all benefits and privileges in the managerial cadre of the respondent-Company not available to workers or workmen. Such Agreements are not entered into with worker/workman by the respondent. She cannot claim to be in two categories at one and the same time i.e. Management Executive on joining to enjoy benefits and privileges in terms of appointment letter and then claim to be a worker/workman in order to make a grievance under Standing Orders Ordinance or section 25-A, I.R.O. Her salary etc. Is more than ten thousands Rupees per month. She was member of (i)
Management Staff Pension Fund, (ii) Management Staff Gratuity Fund. Workers/workmen are not given this privilege. She was entitled to medical facilities for self spouse and children while worker only gets such facility for herself/himself and only a fixed sum per year for family which is negotiated by the CBA. For these reasons, she could not be and was never a Member of the Workmen Union. Her job included typing and office work but she was not a Typist or a Clerk. She was functioning as an Executive Secretary/Junior Manager at the time at a much higher plane than a mere Typist or Clerk and had reserved herself right to leave the job by giving the respondent-- Company three months' notice.
She entered into a Formal Agreement (Annexure `B' to the application). Her salary was negotiated and settled at an annual figure though for convenience and by mutual Agreement paid every month (clause 3). Her engagement (clause. 2) was specifically agreed to be subject to clause 13 i.e. Freedom to either side giving the other three months' notice to terminate the relationship.
Neither such Agreements are entered into with workers/workmen by the company nor Arbitration agreed to with workmen, nor annual salary fixed for them nor do they get a right to leave the job on three months' notice a right reserved by the applicant):'
13. Margery Rehman equates her status with that of a Junior Mad r in the Managerial cadre and she belonged to the Managerial staff. W job ob included typing work and office work, but she was not a typist or a clerk was Abdul Hameed Memon and Arif Chosky whose Secretary the appellant wastowards the later years of her service with the appellant company, have relevant to say in that context. The former stated in his cross-examination this her entire work "includes maintaining of confidential record, arranging appointments and meetings and all other works" which was given to her from time to time". To this Arif Chosky added that she used to operate the computer and the fax machine in the absence of the operator. The replies of Margery Rehman approximate with the same.
14. She was reasonably well paid, but her status, as the law stands will be determined not by the pay and designation, but the duties and the nature the job she was attending to (See Hotel Intercontinental, Lahore v. Bashir A Malik PLD 1986 SC 103 and Abdul Razzaq v. M/s. Ihsan Sons Ltd.
And others A 1992 SCM R 505).
15. The job she had performed day in and day out according t'' me was nothing more than that of glorified clerk and I find no reason to differ with the finding of the learned Presiding Officer, that the respondent has a workman.
16. Since the respondent is a workman, it has to be seen whet6Ct the termination of her service is in conformity with the provisions of Standing Order 12(3), which reads as under:-- "(3). The services of workman shall not be terminated, nor shall a workman be removed, retrenched or dismissed from service, except by an order Inwriting which shall explicitly state the reason for the action take case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
17. The termination order has been reproduced earlier. What to say about giving explicit reason, it is conspicuous by its very absence. It speaks only of an earlier talk of the Director with her. It cannot be conjured what transpired there. It has been said on behalf of the appellants, that looking to the terms of the Agreement nothing further was stipulated except 3 months' notice and that was there.
They are entitled to their opinion, but they cannot be above law. The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applies to all industrial and commercial establishment and it is not their case that this is not a commercial establishment. There is a plethora of case-- law, that any order of retrenchment, removal etc. Which fails to state the reasons, would be illegal. (See Ghulam Ahmad v. Sindh Labour Appellate Tribunal 1990 PLC 385, Muhammad Ishaque v. M/s. Shezan International 1990 PLC 63). For this flagrant failure the impugned termination order therefore cannot. Pass muster, and was very properly struck down by the learned Presiding Officer.
18. As for the full back benefits, the respondent had in clear terms mentioned in the petition, that as a result of 'the termination of her service, she had been rendered jobless. She had been challenged, and it was alleged that she was working with another local establishment, but with a different name. The appellants had examined witnesses from the said concern and they spoke to the contrary. Not satisfied with this, the appellants had filed application before this Tribunal under section 38(3-A) of the I.R.O. And that was rejected. During the arguments, Mr. Tasnim stated that the appellants had also filed a Constitution petition and that has been disposed of. That will be beside the point. But the fact remains that the respondent had explicitly mentioned in the proceedings that she was jobless and that assertion, in spite of repeated effort on the part of the appellants, could not be disproved. Looking to the principles laid down in Muhammad Bashir v.
Punjab Labour Appellate Tribunal and others reported in 1991 SCM R 2087 full back benefits were rightfully awarded to her.
19. In the result, I will uphold the order and dismiss the appeal.