1. DECISION This is an appeal against an order dated 23-8-1975 of Junior Labour Court No. II, Karachi, accepting application under section 25-A of 1. R. O., 1969 and re-instating the respondent-workman in service with full back benefits.
2. The facts giving rise to this appeal are that the respondent was appointed as Industrial Relation Advisor to appellant's Company, on salary of Rs. 2,00 per month with effect from 8-1-1974. Ha was employed in a Management and supervisory category. Following Departments of appellant's Company were placed under his control
(1) Personnel.
(2) Security.
(3) Canteen.
(4) Transport.
3. The respondent was issued a job description dated 19-2-1975 which indicated his functions, responsibilities, duties and authorities as Industrial Relations Advisor. It transpired that he was abusing his authority in matters of promotions, transport and confirmation of workmen. On 1-1-1975 he was advised that letters pertaining to probation, confirmation, promotion and transfers of workmen would be signed by the Works Manager. But all other supervisory and administrative functions, responsibilities, duties and authorities of the respondent as Industrial Relations Advisor remained unaffected. There was no decrease or reduction in the salary or emoluments of the respondent who was drawing a total gross salary of Rs. 3,000 nor was he demoted from his position as Industrial Relations Advisor. On 4 January 1975 the respondent was suspended. He was issued with a charge-- sheet dated 4-1-1975. His explanation dated 10th January 1975 was con--sideredth and vide letter dated 11th February 1975 his services were terminated on full benefits. The respondent made a grievance by a letter dated 21-2-1975 to the Employer in which the respon-- dent for the first the came out with the allegation that his position was reduced to that of an --- Ordinary and purely a worker---. The respondent then approached Junior Labour Court No. II, Karachi under section 25-A of I. R. O., 1969 and his application was allowed. Being aggrieved with the order dated 23-8-1975, the appellant's Company has preferred this appeal.
4. Heard arguments of Messrs A. A. Sharif and S. P. Lodhi Representa. Tives of the parties.
5. A crucial point involved in this case is whether the respondent is a ---workman--- within the definition of West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968. My finding is in the negative for the following reasons: - During proceedings under section 25-A of I. R. O., 1969 the respondent examined himself and 2 witnesses namely S. Furhan Ali and Mr. Ahmad Nabi Khan, on the other hand the appellant has examined Mr. M. M. Qureshi Director-cum Secretary of the establishment.
6. It is necessary to reproduce para. 11 of the application under section 25-A of I. R. O., 1969 as under: ---That by this tame the applicant had succeeded in creating and establishing good and constructive relationship with the newly elected Union leaders most of whom were not from the party of Mr. Mahmood. At the the of Union election in July 1974 Mr. Mahmood had instructed the applicant to do everything possible to stop the new Union leaders from being elected and even suggested to implicate them falsely in police cases etc. Knowing fully well the intrigues and past bitter experiences the applicant maintained impartiality. However, when these leaders were elected the applicant created best of relation-- ship with them which displeased Mr. Mahmood and he called the applicant to his office in Board of Industrial Management in NSC Building as well as Chloride Office at Burhani Chambers and directed to falsely implicate the Union leaders and other prominent workers in police and disciplinary cases resulting in their harrasment and eventual dismissal from company services. The applicant flatly expressed his inability to be a party to such illegal acts as he did not like to be a party to it which infuriated Mr. Mahmood and he instructed Mr. M. M. Qureshi to take away all supervisory and administrative responsibilities from the applicant which was done in month of November 1974 but however, this was later on confirmed in writing on January 1, 1975 and the applicant was made merely a clerk and thus purely a workman having no supervisory, adminis--trative or managerial powers whatsoever though his salary was not reduced.--- I reproduce a passage from para. 20 of the application under section 25-A of I. R. O., 1969 as under:-- ---That while the Works Manager Colonel Zaman vide his letter dated 1-1-1975 had withdrawn all my supervisory, administrative and managerial powers reducing me to the position of a clerk and directly encouraged the above-mentioned acts by a group of workers but he falsely and paradoxically placed the responsibilities of maintaining discipline in the factory, vide his letter dated 4-1-1975, on the applicant.--- Mr. S. P. Lodhi for the worker argues that since 1-1-1975 the status of the respondent workman was reduced to that of a clerk. The status of the respondent prior to 1-1-1975 is not disputed. He further argues that the respondent was demoted and his powers were withdrawn on 1-1-1975 underletter page 81 and his powers were curtailed vide pages 205, 207 and 209. There is no force in his arguments. The respondent has been enjoying same powers even after 1-1-1975 till the date of his termination. The respondent was suspended on 4-1-1975. The status of the respondent for 3 days viz., 1-1-1975 to 3-1-1975 (both days inclusive) is in dispute.
7. It is admitted position that respondent was appointed as Industrial Relations Advisor with effect from 8-1-1974 on salary of Rs. 2,000 per month. I reproduce appointment order appearing on page 1.39 as under: ---We are pleased to confirm our offer and to appoint you as an Industrial Relations Advisor in this Company on a total remuneration of Rs. 2,000 (Rupees to thousand only) per month with effect from 8th January 1974.
8. This appointment is initially for a period of 6 months and may be ter--minated by one month's notice from either side.
9. At the end of this period the company may consider the question of your future employment on a regular basis and on such terms and conditions as may be mutually agreed.
10. A list of your job specification is being prepared and will follow.--- It is also admitted position that on 30-10-1974 he was confirmed as Industrial Relations Advisor with effect from 1-6-1974. It would be neces--sary to reproduce his confirmation order, page 243, as under: ---Confirmation.-We refer to our discussion with you and are now pleased to advise you of your confirmation in this Company as Industrial Relations Advisor with effect from 1-6-1974.
11. The terms and conditions of your employment will now be as follows: 1.Salary and allowances.-Your salary will be Rs. 2,000 (Rupees to thousand only) per month to be divided into basic and Dearness Allowance as per Company rules. In addition you will receive 25% Accommodation Allowance and 25 % Transport Allowance, making your total emoluments Rs.
12. 3,000 per month.
2. Provident fund.-You will now become eligible to join the Senior Staff Provident Fund operated by the Company. A copy of the rules and regulations of the Fund can be obtained from the Accounts Department.
3. Working hours.-- Mondays to Thursdays8-30 a.m. To 1-00 p.m.
13. 1-30 p.m. To 4.30 p.m.
14. Fridays8-30a.m.To 12-30p.m.
15. 1-30 p.m. To 4-30 p.m.
16. Saturdays8-30a.m.To 12-30p.m.
17. SundaysFree The Company reserves the right to change timings as required from the to the.
18. Depending upon exigencies of work you will be expected to work such additional timings as may be necessary for completing your duties efficiently.
4. Medical Facilities.-Reimbursement of actual expenses can be claimed for your own medical treatment, except expenses incurred for dental or optical treatment and hospitalisation.
19. The Company will also subscribe to the Karachi Chamber Hospital svheme for the benefit of yourself, your wile and children.
4. Leave entitlement.-You will be entitled one month's privilege trove for each completed year of service, calculated from the date of joining the Company.
20. Sick and Casual leave may be granted as admissible to the Company Officers.
6. Responsibilities and Authority.-The Industrial Relations Adviser is directly responsible to the Works Manager for all duties set out in the job specification, a copy of which has already been supplied to you. you will have authority over the staff directly under your control.
21. It will be necessary for you to maintain close contact with officers and staff of other departments.
22. The Management expects that at your level whereas policy instructions will be given and guidance available, you will show initiative and ability to make decisions based on sound appreciation of technicalities and good common sense.
23. All other terms and conditions of employment will be governed by existing rules of the Company as applicable to the officers and as amended from the to the.
24. You may now study the various terms and conditions stated above and sign the duplicate of this letter and return to us for our record, in token of your acceptance of these terms and conditions.--- The appointment order as well as confirmation order, reproduced above, establish that the nature of his duties were that of supervisory, administrative and advisory and his monthly salary was Rs.
25. 3,000.
26. In addition to these orders reproduced above, the respondent was given his job description dated 19-2-1974 containing his powers, duuties, respon--sibilities and assignments. The respondent has cleverly suppressed the job description and has deliberately failed to produce it. The appellants have brought it on record. It is page 247 to 251. A perusal of the job descrip--tion makes it clear that this nature of duties were to advise the appellant's Company, manage the affairs and supervise the work of the workers etc. Apart, there is ocular as well as documentary evidence on record. Evidence of Mr. Mohi-ud-Din Qureshi, Secretary and Director of the Company establishes that the respondent performed Managerial, Advisory and Administrative duties. Mr. Mohiud-Din gets corroboration from many documents exhibited an record. The documents Exh. R-1, Exh. R-2, Exh. R-3, Exh. K-I, Exh. R-5. Exh. R-6, Exh. R-7, Exh. R-8, Exh. R-9, Exh. R-10 and Exh. R-I1 clearly show that the respondent had powers of hire and fire as well as managerial and supervisory prior to 1-1-1975. No doubt his powers of hire and fire were withdrawn and curtailed because of misusing them but nevertheless he had advisory, managerial and supervisory powers even after 1-1-1975 and he did exercise those powers as evident is from docu--ments vide pages 105, 107, 109, 111 and 119. It may be added here that letter 107 shows that he bad authorised payment of Rs, 900 to Canteen workers on 1-1-1975. He had also authorised payment of Rs. 50 to Mr. S. A. Afghan on 2-1-1975 vide page 105. Similarly he bad authorised payment of Rs. 548.75 to Bundoo Khan on 2-1-1975 vide page 111. He had upgraded a worker namely Ali Muhammad to Grade II on 1-1-1975 vide page 117. He had approved payment to Muhammad Ashraf vide letter page 109.
27. Even respondent himself has admitted in his cress-examination that he ass performing miscellaneous duties and advising the Management on Industrial matters. His witness Nabi Ahmad Khan has admitted in cross---examination that respondent belonged to officer's grade. His another witness S. Furqanali has admitted in his cross-examination that respondent was Bead of Personnel Department in 1974. These admissions of the respondent and his witnesses further go to establish that he was not a ---workman---.
28. Mere withdrawal of his hire and fire powers under letter page 81 and curtailment of his powers under letters vide pages 205, 207 and 209 do not mean that he was reduced to the position of a clerk. In spite of his certain curtailment of powers he continued exercising other advisory, supervisor and managerial powers. His other powers as specified in letter page 247 remained intact. His designation, his status, his powers, his nature of duties, responsibilities, his emoluments and rank remained unaffected even after 1-1-1975 till the date of his termination from service. In his reply to charge-sheet as well as first representation vide page 151 nowhere the respondent says that be was reduced to a position of a clerk. At a later stage the respondent has made an attempt to improve his case by cooking up a tale that his status was reduced to that of clerk. At any rate it is al case of reduction of some powers of respondent but not a case of reduction or reversion of his post or rank. Till his last day of service be held same post, drew same pay of Rs. 3,000 per month and enjoyed same advisory, managerial and supervisory powers. There was no change at all in his status or rank.
29. Thus the oral evidence as well as documentary evidence coupled with admissions of the respondent and his witnesses and circumstances on record as discussed above, prove that the respondent cannot fall within the definitions of the workman as defined in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as well as Industrial Rela--tions Ordinance, 1969. Therefore the application under section 25-A of I. R. O., 1969 was incompetent and not maintainable in law. The impugned order is bad and perverse. Accordingly I set it aside and accept the appeal. No costs.
30. Decision dictated in presence of parties and their Representatives in open Court.