' GHULAM MUJADDID MIRZA, J.-On 3-8.1967, the petitioner Mian Anwarul Haq, was employed as Foreman Workshop by respondent No. 2, he was to remain on probation for a period of three months which was extendable at the option of respondent No.
2. During this period his services were liable to be terminated without any notice and without assigning any reason. The petitioner successfully completed the period of probation. He was then selected for sending abroad, for a training course which was to last for a period of six, months and for this an agreement dated 26th March 1970, was executed between him and the Management.
One of the clauses of the agreement was that after the completion of the training course, the petitioner was to immediately report for duty at Lahore and shall serve the respondent for at least three years in such capacity as the employer may determine. The petitioner left for abroad in pursuance of this agreement and after completing the course reported back for duty on 31st August 1970. On 22nd May 1972, the petitioner received a notice of termination of his services which was to the following effect :- "Owing to the ban on the import of cars and the consequent loss of business, the Management regrets its inability to retain you as an employee. Your service shall therefore stand terminated with effect from 23.6-1972,"
' The petitioner felt aggrieved by this notice and served a 'grievance notice' on respondent No. 2, requesting thereby that order of termination was not in good faith, the same be recalled and the petitioner bo re-instated with full benefits. This notice is dated 21st September, 1972. As respondent No. 2 refused to recall the order of termination the petitioner filed an application under section 25- A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court (North Zone), Lahore and prayed that the order of termination of his services dated 22-5-1972 be set aside and the petitioner be re-instated with full benefits. A reply was submitted by the Management to this application in which they justified their action and prayed for dismissal of the application. The Junior Labour Court No, 2, Lahore, decided the application of the petitioner on 29th December 1972.
The petition was accepted and the petitioner was ordered to be re-instated with effect from 21-6- 1972 and was also held to be entitled to benefits accruing thereof. The petitioner was ordered to report for duty on 13-1-1973. Respondent No. 2 filed an appeal against the aforesaid order under section 36-D of the Industrial Relations Ordinance, 1969. The appeal was decided on 12-3-1973, the order of the trial Court was set aside and the case was remanded. On remand the Junior Labour Court No. 2, Lahore again decided in favour of the petitioner and ordered that he should be re- instated with effect from 23.(-1972 and would also be entitled to the past benefits. Respondent No. 2 filed an appeal against this order in the Labour Court No. 1, Lahore. This appeal was decided on 31- 7-1973, it was partly allowed, the order of the lower Court was set aside, the Management was directed to pay wages to the petitioner from 22-6-72 to 16-9-72. As the petitioner was not satisfied with this order he came to this Court by means of this petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, praying that the aforesaid order be declared to be without lawful authority and as such of no legal effect. This petition was admitted to regular hearing on 7th August 1973. After its admission, Messrs Kaiser Shahzada Limited, Monnoo House, Lahore, filed Writ Petition No. 2111 of 1973, in which notice was issued and both the petitions were ordered to be heard together. In Writ Petition No. 211 of 1973, the prayer made was that the order dated 31-7-1973 to the extent whereby the Management had been directed to pay wages to the petitioner for the aforesaid period be declared to be without lawful authority. This judgment will dispose of both the writ petitions. Writ Petition No. 1488-S of 1973 ' Learned counsel appearing in support of this petition assailed the impugned order on the ground that in accordance with section 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968) if the services of a workman were to be terminated and he belonged to a particular category of workmen then the employer was duty-bound to retrench the workman who was the last to be employed in that category. Learned counsel submitted that it is an admitted position that at the time of termination of the services of the petitioner two other junior persons had been retained in service. This action of the Management according to the learned counsel was not only contrary to the above-mentioned legal provision but was also mala fide. It was next argued that the power of the appellate Court was confined to determine as to whether the order impugned before it was legal or not and the appellate Court did not possess the power to grant the relief as had been given in the instant case to respondent No.
2. Last of all, learned counsel submitted that by passing the impugned order, the Labour Court assumed the role of an employer and the order impugned therefore amounted to the termination of services of the petitioner with retrospective effect. This too, learned counsel maintained was without jurisdiction.
2. I think the most important point to be considered in the instant case is the first contention of the learned counsel and the decision on that point would be the determining factor in both the cases.
In support of the first contention learned counsel drew my attention to some of the findings given in the impugned order. It was submitted that practically on all the important issues the decision of the appellate Court was in favour of the petitioner. To begin with, learned counsel submitted that the finding of the appellate Court about the grievance notice of the petitioner was that it was within time and thus the petition filed in the Court on 7-9-1972 was not barred by limitation. Learned counsel submitted that similarly the objection that the petitioner could not be classified as a workman was turned down by the appellate Court, because it was held that since the petitioner had been preparing cars with his own bands he was doing the manual labour and as such he came within the definition of the word 'workman' as given in section 2(0 of Ordinance VI of 1968.
Learned counsel then invited my attention to another objection, which was that it was not the Monnoo Motors but Monnoo Sales Limited who were the employers of the petitioner, because his services had been transferred by Monneo Motors to Monnoo Sales Limited. It was submitted that even this issue was decided in favour of the petitioner because the finding of the trial Court had been confirmed by the appellate Court.
3. Great stress was laid on the fact that two persons, namely, Abdul Aziz and Mr. Mubarik, who were Junior to the petitioner, were retained in service whereas the services of the petitioner were terminated without any legal justification. Learned counsel submitted that this action on the part of the Management was sufficient proof of the fact that the termination of the petitioner's services were not on account of any valid or genuine reason but was mala fide. In support of this learned counsel relied on E. A. Evans v. Muhammad Ashraf (1) and submitted that "if doing of a particular thing is made lawful the doing of something in conflict of that will be unlawful".
4. On behalf of the respondent, number of objections were raised. In the first instance it was submitted that the petitioner could not be classified as a workman as defined in the Statute, Learned counsel next submitted that he was not the employee of respondent No.
2. It was finally argued that the petitioner's services were terminated in good faith, because the Management no longer required his services on account of unavoidable circumstances which led to the closure of their business. Regarding the other points I may observe that those stand finally determined by the Courts below and the decision on these issues being in accordance with law is subject to no exception, in order to determine the status of the petitioner as workman.
5. As already observed by me the main question to be determined in this case is whether the termination of services of the petitioner by respondent No. 2 was in accordance especially when two other junior persons had been retained by respondent No. 2 and for that matter it would also be necessary to examine as to whether the petitioner could be treated as workman as defined in the Statute. Reference in this connection be made to Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond Ltd., Rawalpindi (2), where it had been observed "According to this definition a 'workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical'. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount
(1) PLD 1964 SC 536 (2) PLD 1969 Lah. 717 of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an exillary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him." ' it was further observed :- "The clerical work involved in the discharge of his responsibilities in preparing the cash memos., the small columnwise daily statement of sales and the weekly returns form but a small part of his duties and are altogether consequential in nature. These do not in any way change the complexion of the basic work for which the salesma n is employed by the company."
In view of this I do not think that there can be any doubt about the petitioner being a workman and, therefore, the contention of the learned" counsel for the respondent that the petitioner had been wrongly held to be a workman is not tenable.
' I may refer to para. 13 of Ordinance VI of 1968, which deals with the procedure for retrenchment and is to the following effect "Procedure for retrenchment.-Where any workman is to be retrenched end he belongs to a particular category of workmen, the employer shall in the absence of any agreement between him and the workman in this behalf, ordinarily retrench the workman who is the last person employed in that category."
' Learned counsel while relying on the above-mentioned provision of law argued that it was not merely a matter of procedure and if the action of the Management was contrary to this particular provision then termination becomes void especially when the same is without any cogent and specific reason. It was submitted that in the instant case the reason given was casual one and if that was to form the basis of termination then no employee ,could feel secure and he would be at the mercy of the Management and could be thrown out of the job any time. Learned counsel further submitted that in case it was a genuine reason then the Management was under a legal obligation to strictly observe the rule laid down in para. 13 referred to above.
5. I may now deal with Writ Petition No. 2111 of 1973, filed by Kaiser Shahzada Limited. I have heard the learned counsel in this case at length and I have also perused grounds on which the impugned order is sought to be set aside. Learned counsel in the first instance submitted that respondent No. 2 was an employee of Monnoo Sales Limited and it was this concern which terminated his services by virtue of notice dated 22-54972. Hence so far as the petitioner was concerned it had incurred no liability vis-a-vis respondent No. 2, therefore, the very proceedings initiated against the petitioner were ab initio void. Some other points were also urged, like the one, that the grievance notice was not within time and that respondent No. 2 could not be deemed to be a workman. There is no force in any one of these contentions and I may dispose them of simply by observing that the view taken by the trial Court as well as by the appellate Court is in accordance with law. Learned counsel has not been able to point out to me any special point which could indicate that the findings of the Courts below on these points were contrary to a particular provisions of law. As a matter of fact 1 am of the view that this writ petition was filed just as a counterblast to other writ petition otherwise there is no merit in it.
6. After taking into consideration the contentions of both sides I have come to the conclusion that the order impugned to the extent whereby the petitioner was to simply receive the wages from 22- 6-1972 to 16-9-1972 is not warranted by law. Admittedly the services of the petitioner were terminated on 22-6-1972, whereas the services of the other two persons, namely, Abdu Aziz and Mr. Mubarik were terminated on 16-9-1972. If the action taken against the petitioner was bona fide then the Management was under a legal obligation to strictly observe the rule prescribed for retrenchment and under that the person who came last was to go first.
7. For the foregoing reasons I am of the view that the termination of services of the petitioner being contrary to law was without lawful authority. Writ Petition No. 1488-S-73 is accordingly accepted and the petitioner as such shall be entitled to full benefits in accordance with law. Writ Petition No. 2111-73 fails and is hereby dismissed. The parties are left to bear their own costs. 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.