DECISION ' These are two cross-appeals by the Hotel Management against reinstatement of the employee and by the employee for not granting him the back benefits. Since they relate to the same transaction they will be disposed of by this common order. .
2. The facts in brief are that the employee was appointed by the Hotel Management in the year 1969 as a workman. Ultimately he was designated as outlet Manager on a salary of Rs,3,370 per month.
3. It is the case of the management that the duties of outlet Manager were supervisory and managerial in nature. It has on the other hand been shown by the employee that his duties were manual and clerical in nature. That he used to welcome the guests, count their number, prepare bills and stock them to the Accounts Department and Cash Department.
4. On 24-3-1991 after about 25 years of service, the employee was served with written order that his services as outlet Manager were no longer required and they were terminated with effect from 24- 3-1991.
5. The learned Labour Court in a well-reasoned judgment has pointed out that it is neither the pay nor designation which are to be taken into account for determination of the question whether the employee is a workman or a Manager. It is the nature of the duties and the substantive part of the duties that will be considered for the purpose of deciding this question. It has been shown that the employee as outlet Manager could not even grant leave to the workers. It has been admitted by the management that the employee used to prepare the bills in one of the three Restaurants of the Hotel and that he had no hire and fire powers. The learned Labour Court has quoted PLD 1986 Supreme Court 103 that the test for determining the question whether the employee is a worker is, whether manual or clerical work was being done by the employee as substantial part of his duties and whether the pith and substance of his employment was manual or clerical work and the duty in supervisory capacity was ancillary or incidental. The learned Labour Court after discussion of the evidence rightly came to the conclusion that the employee was a workman within the meaning of the Standing Orders Ordinance.
6. It has next been shown that the termination of his services were in violation of Standing Order 12(3) although the order of termination was in writing. The common phrase that his services were no longer required would not fulfil the requirement of giving explicit reasons for the termination. It has not even been suggested that the termination was the result of any re-organization or retrenchment. The termination of the worker is, therefore, invalid and against the provisions of law under Standing Order 12(3) of the Ordinance.
7. It has been pointed out by Mr. Latif Saghar appearing on behalf of the employee that under the judgment of the Labour Court, dated 23rd August, 1992 the employee was required to be re- instated in service within a month. That in nominal compliance of this order the employee was given a written direction for being re-instated within that month but he was not allowed to work in the Hotel and during that very month and another order was given to him terminating his services.
This conduct of the Hotel Management clearly shows that they had little regard for the orders of the Labour Court and they had no mind to keep the employee in service in the Hotel. In fact their conduct as disclosed by this Act is in the nature of contempt of the lawful orders of the Court. That since the grievance petition of the employee for this second termination is before the Labour Court no further action will be initiated in this regard by the Tribunal. Mr. Latif Saghar has then pointed out that he had categorically stated in his prayer in the petition that after termination he was thrown on the road and he has, therefore, claimed the back benefits. Mr. Muhammad Humayun has on the other hand argued that no further evidence was examined by the employee to prove that he was not gainfully employed after his termination. But as held in 1991 SCM R 2087 Muhammad Bashir v.
Punjab Appellate Tribunal burden of proof to establish that the workman was engaged in gainful employment during the period he remained out of service was on the employer. No evidence has been produced by the employer, that the worker was engaged in some gainful employment during this period. The practice is that the worker has first to assert either in the petition or orally in the statement that he was not gainfully employed elsewhere. The onus then falls on the employer to show that the worker was so gainfully employed. In the same judgment it has been held that where order of re-instatement was proper but the conduct of the workman was not blameless the back benefits can be refused but where there is no such allegation blaming the worker the refusal of the back benefits would not be justifiable. It is only when the worker has not made any oral assertion that he had not been gainfully employed during the period of his severance from service, the Court would be justified in not allowing back benefits to him. In this case in para. 9 of the affidavit the employee has asserted that his services have been terminated after a period of 22 years and "I have been thrown on the road mala fidely." The phrase thrown on the road in other words means that he has been left out of job after 22 years' service.
8. In view of the above discussion the worker Akber Ali is allowed back benefits from the date of first termination. The appeal of the Hotel Pearl Continental has been dismissed while the appeal of Akber All regarding back benefits stands allowed. The order to take effect within one month. 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.