SARDAR MUHAMMAD RAZA, J.---Abdul Rashid son of Abdul Rehman resident of House No. 4335, Gowalmandi, Rawalpindi was an -employee of Mustehkum Cement Limited, Gul-e-Iqra Plaza Murree Road, Rawalpindi since August, 1969. He was later on promoted as Assistant Officer Accounts in 1988. Regarding certain irregularities in the account, his explanation was called for and thereafter a charge-sheet was issued to him. As a result of an enquiry conducted by the Administration, his services were terminated on 20-9-1988.
2. He filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Labour Court at Haripur but it was dismissed by the learned Presiding Officer on ~27-6-1991 holding that the petitioner was not a "workman". His appeal before learned Labour Appellate Tribunal, N.W.F.P., Peshawar also failed on 15-1-1992 on manifold grounds including that of his not being a "workman". Such decisions aforesaid are challenged by Abdul Rashid before this Court invoking its jurisdiction under Article 199 of the Constitution.
3. We have noted with concern that both the forums non-suiting the petitioner have unanimously held that the petitioner was not a "workman" and that, therefore, they had no jurisdiction yet they have made extensive observations on merits as well and have come to the conclusion that the petitioner had no case for grant of any relief. This conduct of the labour hierarchy, we are constrained to observe, was paradoxical. Once having believed that they had no jurisdiction in the matter, the petitioner should have been referred to the proper forum and no discussion on merits ought to have been resorted to.
4. The question arises as to whether this Court while exercising jurisdiction under Article 199 of the Constitution can go into the matter of deciding as to whether the petitioner is a "workman" or not. A similar situation had come before the `Supreme Court here the Lahore High Court in its Constitutional jurisdiction had declined to go into such question but the Supreme Court in Hoechst Pharmaceutical Pakistan (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal (1993 SCM R 1889-B) held that the High Court could go into the question whether an employee was a "workman" or not.
Holding so in the affirmative, the Supreme Court remanded the case back to the High Court for appraising evidence to decide whether employee, within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969, was a "workman" or not. On the aforesaid authority we would like to appraise evidence in this behalf.
5. At the the of removal from service the petitioner was designated as Assistant Officer Accounts holding the charge of the affairs of Fair Price Shop of the, Industry. By now it has become a settled principle of law that the status of a person as "workman" is not to be determined on the basis of the nomenclature bf-the post try which it is designated but is to be determined on the basis of the duties which he practically performs. In case National Bank of Pakistan v. PLC Punjab Labour Court No. 5, Faisalabad, the Supreme Court gave the same verdict appearing in 1993 SCM R 672-682-J.
6. In the light of this principle we have perused the document (Exh. RW--2/3) providing job description of Abdul Rashid petitioner. In such admitted document the basic pay 8f the petitioner is given as Rs.800. The job description is Assistant Officer Inspection but the principal duties described therein are as follows:---
(a) (i) To keep check on the weights of the bags packed for loading. -
(ii) To keep check on the number of bags/load in trucks etc. (i.e) To keep checks on the total weight of cement in trucks and wagons.
(iv) To control the weigh-bridges for trucks and wagons.
(v) To keep check for any loose on the floors of trucks and wagons.
(b) Subsidiary activities:
(i) To sign gate passes after normal hours.
(ii) To prepare shift inspection reports for submission to General Manager.
Even a fleeting glance over the duties assigned to the petitioner would reveal that he is nothing but a "workman". He does not perform any executive or administrative duty. He has no subordinates at all to superintend and the nature of each and every duty is either manual or clerical.
7. There is another document (Exh.RW2/4) of a colleague of the petitioner whose job description was Assistant Officer; Fair Price Shop. His basic pay is also Rs.800 per month and the principal duties are as follows:--- A.
(i) To arrange purchase of the foodstuffs and other items of general use for sale in the Fair Price Shop of Factory. .
(ii) To organise and supervise sale from Fair Price Shop.
(i.e) To keep record of purchase and sale of Fair Price Shop.
B. Subsidiary activities.
(i) To organise and supervise sale of cement for use of workers and residents of the surrounding villages.
(ii) To exercise administrative control on staff working in Fair Price Shop.
A perusal of this document would also suggest that the nature of the duties of the petitioner were either manual or clerical. As subsidiary activities, he had control over the staff working in Fair Price Shop but it has come in evidence that even such staff was not directly subordinate and he could even not grant them any casual leave. We are of the considered view that Abdul Rashid petitioner, irrespective of the designation that he enjoyed, was a "workman" and the nature of his job was no better than either manual or clerical. The forums of the labour hierarchy seem to have been impressed merely by the designation of his post and have not gone into the details of job description/principal duties.
8. Coming to the merits of the case, the first explanation of the petitioner Abdul Rashid was called through a confidential letter dated 16-6-1985 issued under No. MCL/Admn:4286 (Annexure 'C') on record. This call for explanation is a complete admission of the fact that the so-called irregularities committed by the petitioner had come to the notice of the Administration on 30-4-1985 when he handed over the charge of the Fair Price Shop to Mr. Ghulam Yasin Khan. Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) categorically provides that a charge-sheet should be issued to a "workman" within one month of the misconduct committed or within one month of the I misconduct having come to the knowledge of employer. Keeping this mandatory provision of law in view, the charge-sheet framed in the instant case on the 30th of July, 1985 was clearly the-barred and no action could be taken against the petitioner there under.
9. The learned Labour Appellate Tribunal was of the view that the purpose of charge-sheet was only to apprise a "workman" of the allegations levelled against him and that the very explanation dated 16-6-1985 could be taken and construed as a charge-sheet. With utmost efforts, we could not find ourselves in agreement with such conclusion. Even if the letter dated 16-6-1985 calling for explanation is considered to be a charge-sheet, it is beyond the from the date of knowledge of misappropriation acquired by the administration admittedly on 30-4-1985. Taking another situation in view, even if we consider the date of knowledge as 16th of June, 1985 (which it is not), yet the charge-sheet ought to have been issued on or before the 16th July, 1985, whereas, it was issued on the 30th July, 1985. Considered from any angle whatsoever, the charge-sheet in hand is barred by the and no action can be based thereon.
10. The learned counsel for the petitioner has argued and same is the stand taken by the petitioner throughout that his General Manager Mr. Wazir Muhammad was personally against him. That such charges were once brought against him but subsequently dropped after enquiry yet everything was rejuvenated when Mr. Wazir Muhammad again came into authority. Such allegation does not seem to be untrue in the light of the facts already narrated above and it seems in such background that the charge-sheet became the--barred. The matter does not end here but the accusation brought about by the petitioner seems genuine because the same Wazir Muhammad has issued a charge-sheet to the petitioner and the same Wazir Muhammad has ordered his PLC dismissal from service. This would not have had mattered much, as reasoned by 40 the learned Labour Appellate Tribunal but the most objectionable way of dealing with the petitioner was that the same Wazir Muhammad appeared as a main witness against the petitioner. He was himself a prosecutor, an executor as well as a witness. This conduct hits at the very root of justice, equity and fair play which can in no way be sustained in law.
11. Consequently, we are constrained to hold that the petitioner was a "workman", that the charge- sheet issued to him seriously violated the provisions of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) and lastly that the enquiry conducted against him violated the principles of equity, natural justice and fair play.
The writ petition is accepted, both the impugned judgments are set aside and the petitioner Abdul Rashid is hereby reinstated with effect from the date of dismissal, with all the back benefits.
We do not feel that the remand in the instant case would serve the ends of justice because the to forums in their judgments had discussed the merits as well which in term, had to be discussed by this Court in the light of record before us.