DECISION ' This appeal arises from an order of the 5th Sindh Labour Court, Karachi whereby the appellant's petition under section 25-A of the I.R.O. ' for his reinstatement and back benefits was dismissed.
2. The facts in brief are that the appellant was employed as storekeeper in Hotel Plaza International from 10-9-1983. It is alleged that he was promoted to the post of Stores Incharge with effect from 1- 11-1983. The appellant is said to have tendered his resignation dated 22-1-1984 but no action was taken by the management on that resignation and the appellant continued to work and did not meanwhile ask for return of his old resignation. After six years the management suddenly gate stopped the appellant on the ground that his old resignation lying with them had been accepted.
The appellant then served the management with the grievance notice and filed grievance petition.
Thereafter, by way of precaution the management issued a letter, dated July 31, 1990 and sent it by registered post to the appellant. It was mentioned in the letter that his resignation was accepted by the Hotel on 11-3-1990. Thai due to continuous losses Hotel had decided to close 70 rooms out of 100 as a re-organisation measure and retrenched surplus employees. That the post of Stores Incharge had, therefore, been abolished and his appointment be deemed to have been retrenched/terminated with effect from July 31, 1990 while his petition was pending in the Labour Court. The learned Labour Court held that the services of the petitioner were legally and validly terminated as a result of acceptance of his resignation and dismissed the petition. On 15-1-1994 about a month prior to the delivery of judgment petitioner Salim Ahmed died. On 7th December, 1995 when the hearing was adjourned for judgment Salim Ahmed was alive and he had attended the hearing of his case. Mst. Zohra Asifa widow of Salim Ahmed has then filed this appeal on behalf of her late husband for claiming the back benefits including his legal dues.
3. Mr. Abdul Majeed has argued on behalf of the appellant that the dismissal of the petition of Salim Ahmed was not justified and he had also claimed the payment of back benefits to which his legal heirs would now be entitled as the case regarding the monetary benefits subsisted for the benefit of legal heirs and did not abate on death of Salim Ahmed. It has first been argued that Salim Ahmed was a workman doing clerical and manual labour in his capacity as Store Keeper and then Store Incharge drawing a salary of Rs,2,100 per month. It has on the other hand been pointed out by the management that Salim Ahmad had been promoted as Stores Incharge. His duties were supervisory and administrative in nature, but what he is supposed to have supervised as the Storekeeper are a loader and a clerk. On the other hand the evidence shows that he used to order supplies for the Hotel and keep the accounts of the amount paid for the articles purchased. These duties are neither managerial nor supervisory but are clerical in nature. The Hotel employed about 200 workers and as such the petitioner was a workman under Standing Orders Ordinance.
4. It has next been argued by Mr. Abdul Majeed that the services of Salim Ahmed were orally terminated after six years on the ground that his resignation given to them by Salim Ahmed had been accepted. The alleged resignation was given six years earlier but no action had been taken on the resignation on expiry of the notice period of one month; as such it was deemed to have been rejected and Salim Ahmed forgot all about it. It was suddenly on 14-3-1990 that he was prevented from entering the hotel premises by the management. There was no order in writing terminating his services. This order was passed after his grievance notice and filing of grievance petition before the Labour Court as a matter of precaution. That order having been served subsequent to the act of termination could not be considered to be genuine under Order 12, Rule 3 of Standing Order. No legal dues had been paid to him at the time he was gate-stopped.
Acceptance of resignation and termination under Order 12, Rule 3 for the reasons of re- organisation are two different transactions and they could not be mixed up afterwards to justify the illegal acceptance of the resignation. The termination of Salim Ahmed was therefore, illegal and unjustified.
5. Lastly Mr. Abdul Majeed has pointed out that the petition filed by Salim Ahmed did not abate totally on his death. The personal relief of reinstatement could no longer be claimed because that relief ended with his death but the monetary benefits which Salim Ahmed would have received subsisted for the benefit of the legal representatives and the widow and son could not be deprived of the dues payable to her husband or father. Mr. Abdul Majeed has quoted Muhammad Afzal (through legal heirs) v. House Building Finance Corporation, Karachi PLD 1976 Kar.
1121. It was held by Zafar Hussain Mirza, J. As under:-- "37. As regards the additional issue the contention of Mr. Zari is that the rights claimed in the suit were of personal nature, pertaining as they did to the service rights of the deceased plaintiff and as such on his death the suit abated. He referred to several cases from the Indian jurisdiction as well as some Pakistani cases. I do not wish to burden this judgment with discussion of the cases cited.
Suffice it to say that none of the cases is directly on the point. In all these cases the right claimed was strictly a personal right and, therefore, could not survive in favour of or against the Legal Representatives of the deceased. In the present case as stated above one of the reliefs claimed in the suit was for recovery of arrears of salary accruing by way of consequential relief and accordingly an ascertained sum was being claimed which had fallen due to the deceased in his lifetime if the case had succeeded. I, therefore, hold that the right to sue did survive to the Legal Representatives of the deceased plaintiff."
6. Mr. S.M. Yaqoob has questioned the status of Salim Ahmed and has pointed out that the person invoking the provisions of section 25-A of the I.R.O. Should be a "workman" and the burden of proof was on the workman to thus establish his status. The appellant has, however, shown that he was a workman, as the work, duties and responsibilities of the Store Keeper or Stores Incharge were the same in all material respects. One loader Pir Bukhsh and Sohail Ahmed Stores Clerk also worked with him for purchasing materials. They were not under his supervision. Thus, the burden has been discharged and it was for the management to prove that the petitioner was an officer on that petty salary which they have failed to do. One man will not be employed to supervise, manage and control the work of another. The accounts of purchase kept by him will not establish that he was not a worker but the manager. On the contrary that would be the clerical work and not managerial duty.
7. The learned counsel for the hotel management has next argued that since Salim Ahmed was a sick person he could not have done the work assigned to him after his termination. He would not, therefore, be entitled to back benefits. There is, however, nothing to show that his illness if any prevented him from doing a work of clerical nature. He would, therefore, be entitled to his dues from the day of wrongful termination up to the time of his death. The claim regarding back benefits is allowed accordingly. Since his acceptance of resignation or subsequent letter of termination were bad, the legal representatives of deceased Salim Ahmed would thus be entitled to recover these dues which shall be deposited by the hotel management within a month from the date of this order.
8. The order of the Labour Court is accordingly set aside and the appeal is allowed in respect of the back benefits only for the benefits of the heirs of the deceased. The personal action for re- instatement having abated.