' The petitioner through this petition seeks setting aside of an order dated 28-11-1995 by virtue of which, his services were terminated on the ground that he was employed as Deputy Manager (Administration) in the respondent Company and by virtue of his duties which were being performed by him, the respondent management became annoyed because being Deputy Manager (Administration) it was his duty to contact the labour unions in order to keep law and order situation intact due to which the respondents were under the impression that he has been taking part in trade union activities. It is further alleged that due to the above said reason, the respondents firstly in view to victimise the petitioner, transferred him from D.G. Khan to Bhai Phero, District Kasur which order was complied with by him but salary for few months was withheld by the resipondents which was later released on the representation of the petitioner. It is further alleged that the respondents became so. Hostile towards the petitioner that they issued a termination order of the petitioner on 26:11-1995 under rule 14.1 of Employees Service Rules, 1982 but the provisions of the said rules were also not complied with and without issuing him a prior notice or paying him notice pay, he was terminated and that he was victimised on baseless apprehension of the respondents that he is involved in unfair labour practice which assignment he was bound to comply with, being an officer of the administration. It is also submitted that no enquiry or other proceedings have been conducted before termination of his services and he has been condemned unheard.
2. This petition came up for hearing before this Commission on 6-12-1995 and the then learned Chairman while hearing the case had not only suspended the termination order dated 28-11-1995 but also suspended the transfer order of the petitioner which was earlier passed by the respondents and also complied with by the petitioner. Notices were ordered to be issued to the respondents for 19-3-1996. In the meanwhile, the learned counsel for the respondents Syed Iqtidar Hussain Shah, appeared on 19-12-1995 and filed an application for early hearing of the case. The respondents have also filed written statement and reply to the stay application during the proceedings of the case. The respondents in their written statement in which preliminary objections were also raised to the effect that the petitioner is an officer in the respondent establishment and throughout of his career, he was not required to perform manual or clerical duties and at the time of termination of services, he was performing his duties as Deputy Manager (Administration) and as such he is not a workman under the labour laws. It was also submitted that the petitioner has not mentioned any specific instance of unfair labour practice committed by the respondents and that he has not mentioned any detail of his trade union activities or activities with the trade union which could up set the respondents/employer. It has also been submitted that vide order dated 6- 12-1995 passed by this Commission, the learned Chairman had suspended not only the termination order dated 28-11-1995 but also suspended the transfer order of the petitioner. Dated 22-10-1995 which was passed one and a half month back and as such an order has been passed by this Commission amounting to status quo ante and that this Commission is not vested with powers to passed such-like order at preliminary stage, without hearing the other party. On merits, it has been submitted by the respondents that the petitioner was employed in supervisory and administrative capacity but during major portion of his period of employment, his services were not satisfactory and at the time of termination, he was working as Deputy Manager (Administration) and by no stretch of imagination, he can be considered as a workman. Regarding transfer of the petitioner, it has been submitted that the employer has vested right to transfer its employees for better administration and smooth functioning of the Company. It has also been submitted that the petitioner was issued termination letter in accordance with rule 14.1 of the Employees Service Rules, 1982 and was also offered salary for ninety days and the termination order was served upon the petitioner but he refused to received the same and the same was sent to him at his known residential address available with the company which came back undelivered.
The respondents have denied the allegations levelled in the petition and stated that there was no need to hold any enquiry in the matter and his services were terminated in accordance with law, applicable to him.
3. The petitioner in response to the written statement filed a rejoinder in which it has been submitted that the petitioner is a workman by all means as defined under section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1969. It has been submitted that detail of trade union is not required for judicial determination but can be proved by the affidavits or other sources of evidence, and that the unfair labour practice is proved by the evidence or documents placed on the record and that the petitioner was no vested with powers to dismiss, appoint, charge-sheet or grant leave to the employees independently. It is also submitted that designation of Deputy Manager (Administration) does not create any estoppel against the petitioner and that he was condemned unheard.
' I have heard the arguments of the parties and also gone through the written arguments which were filed by the learned counsel for both the parties, in the light of the evidence produced before me by both the parties. The petitioner filed his own affidavit-in-evidence and respondents filed affidavit-in-evidence of Mr. Muhammad lqbal Shahid, Deputy Manager (Administration). The petitioner in his affidavit has narrated almost the same facts which were stated in the rejoinder filed by the petitioner after the written statement was filed by the respondents. It has also been stated in the affidavit that Industrial and Commercial Employment (Standing Order) Ordinance, 1968 is applicable in the case of the petitioner because he is a workman and also filed some documents which will be discussed later in the judgment, at the relevant time. The deponent also alleged that his services were terminated on account of his trade/labour activities. Only one new assertion was made in the affidavit that the respondent company has introduced Golden Handshake Scheme and if the deponent is given the benefits of the same, he will not press this petition for reinstatement. The deponent during his cross-examination, admitted that he was appointed as Security Officer and then converted as Junior Commercial Officer and then promoted as Assistant Manager Admn. It has also been admitted that he was promoted as Deputy Manager (Administration) by the respondent company. The petitioner has denied the issue of (Marks A-1 to 17) by him. The deponent has also admitted that he was granted House Building Loan of Rs,1,32,000. The deponent has denied the point of getting salary of drawing Rs,16,000 per month but stated that he was drawing salary Rs,15,000 something. The deponent stated that the management had directed him to resolve the dispute between the union and the management and also to negotiate with the workers on other matters. The petitioner/depondent admitted it as correct that he was never member of any trade union throughout my service. The deponent also admitted that he has not made any complaint with regard to the unfair labour practice to any other department before filing this petition. On a question that the contents of the petition and affidavit filed by him are incontant, the deponent stated that, his counsel knows it better.
5. The respondent's witness Mr. Muhammad Iqbal Shahid filed affidavit and alongwith it, some documents were also filed to support the contention of the respondents. The affidavit of the respondent's witness seems to be the repetition of the written statement regarding appointment of the petitioner, his promotion as Assistant Manager, Deputy Manager (administration), offer of appointment in another company of the same group of industries and his job description-has also been narrated in the affidavit. The fact regarding transfer of the petitioner from Dera Ghazi-Khan to Bhai Pero has also been narrated by the deponent. It has also been stated in the affidavit that the petitioner by no stretch of imagination fell under the definition of workman because his substantive job was to supervise the work of his subordinates and issue orders accordingly. The fact that the company has offered Golden Shakehand scheme to its employees has also been stated in the affidavit and said that the same was floated after the termination of the petitioner. The witness was cross-examined by the learned counsel for the petitioner and during cross-examination, the deponent produced copy of the duty charge, of the petitioner as Exh.R-37/1 to 3. And denied that the document Exh.R-37 is bogus one but admitted that the petitioner has no power to appoint or dismiss any person in his department. The petitioner was subordinate to Manager Administration.
The deponent also stated that the name of any such person who was appointed or dismissed by the petitioner, is not known to him. The deponent denied that the petitioner was working with his own hands and that deposition made his affidavit in paras. 3, 4, 7, 8 and 14 are false. The deponent stated that reasons of his termination are assigned in the termination order. The deponent admitted that no enquiry was held and that no show-cause notice was issued to the petitioner. The deponent denied that the documents produced with the affidavit are bogus and the signatures on documents Exhs.P-12 to R-35 are also bogus and I am giving evidence on the dictation of the management and that the petitioner was terminated with mala fide intention or on account of trade union activities.
6. I have given my anxious consideration to the written arguments submitted by the parties. From the pleadings of the parties and written arguments, it appears that the order of the then learned Chairman dated 6-12-1995 was challenged before the honourable High Court in writ petition which was accepted vide order dated 7-5-1997 and the said order was assailed by the petitioner before the Division Bench of the Honourable Lahore Court through an Intra Court Appeal which was dismissed vide order dated 22-10-1997 and the order of the learned Single Bench was upheld. The petitioner then filed C.P.L.A. No,105 of 1998 before the Honourable Supreme Court of Pakistan assailing the order of the Honourable Division Bench which was disposed of on 2-2-1998 with the direction to this Commission to dispose of the petition, filed by the petitioner, after recording evidence and hearing accordingly.
7. The first question to be determined is whether the petitioner falls within the definition of workman or not? Admittedly the petitioner's designation is Deputy Manager (Administration) which belongs to a category of officers of the management but the petitioner's stand is that his status is to be determined in view of his duties, performed by him and evidence and also the definition of workman, given in the Industrial Relations Ordinance, 1969. So, first of all, I would like to examine the evidence on the record, produced by the petitioner because the petitioner alleges to be a workman under the labour laws and it is his duty to prove his contention. The bare reading of the petition shows that the petitioner has only mentioned in his petition that the petitioner is a workman and the other workmen have formed a union in the organisation. The petitioner at a very initial stage, mentioned that he being Deputy Manager (Administration) has to deal with the labour union for law and order situation and pleasant atmosphere. It shows that this function was being performed on behalf of the respondent management and not on behalf of the union. It would not be out of place to mention here that after filing of the written statement, when the respondents have taken the objection that petitioner is not a workman, the petitioner with an afterthought, in his rejoinder taken this plea that he is a workman and falls within the definition of that clause. The petitioner in his evidence produced before this Bench has also admitted that he was appointed as Security Officer and then converted junior Commercial Officer and thereafter, two promotions were allowed to the petitioner and at the time when he was terminated, he was performing his functions as Deputy Manager (Administration). The petitioner during his cross-examination, has not deposed any word that he performs such and such functions by virtue of which he falls within the definition.
The petitioner has mentioned this thing in his affidavit but the aim of the cross-examination is to bring the actual position before the Court from the mouth of the witness. It is well settled principle of law that the weight is always given to the cross-examination in which the petitioner has failed to prove through documentary evidence that he is a workman. On the other hand, when confronted with marks A-1 to 17 the petitioner denied having signed these documents, whereas the said documents contain the signatures of the petitioner and it cannot be said that these documents have been prepared by the management to strengthen their case because all these documents have been written and signed within a period of three or four years and simply saying that these are not issued by me, does not appeal to mind. The petitioner in his cross-examination has also deposted that he had been directed by the management to negotiate with the union and to resolve the dispute between the union and the management. This fact also shows that the petitioner was acting on behalf of the management and not on behalf of the union and if they were so annoyed with the petitioner, why they had directed him to act on their behalf. To determine this aspect of the case, I would also like to refer the definition of employer and workman, given under the Industrial Relations Ordinance, 1969. The definition of employer is reproduced as under:--- "Employer.---in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes:-
(b) Any person responsible for the management, supervision and control of the establishment."
' The worker/workman is defined under section 2(xxviii) of the I.R.O., 1969 which is also reproduced for ready reference:--- "'Worker' and 'Workman' means any person not falling within the definition of employer who is employed (including employment (as a supervisor or) as an apprentice) in an establishment or industry for hire of reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with as a consequence of that dispute or whose dismissal discharge, retrenchment, lay-off, or removal has led to that dispute (but does not include any person):--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) Who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensum or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions of mainly managerial nature."
8. The main stress of the learned counsel for the petitioner was that his status is to be determined in the light of die duties, performed by the petitioner and not in the light of pay or designation.
Reliance in this behalf was placed on 1979 SCM R 304, 1999 SCM R 157, 1992 SCMR 897, PLJ 1997 SC 967, 1989 PLC 934 and 1979 PLC 307. With great respect to findings of the superior Courts, I would like to submit that in four of the, abovementioned rulings, the person of designation of Officer Grade-III was appointed to work as Manager of the Branch. It would not be out of place to mention here that in the banking circle, there is no designation by the name of Manager. -On the other hand, it is an arrangement by the banking authorities in the internal set-up that a person is directed to supervise the working of a branch with no powers of hire and fire, and officers with designation of Officer Grade-II, Officer Grade-I and even Assistant Vice-President can be appointed by the authorities to work as Manager. It depends on the working/nature of duties that a particular person is qualified to be a workman or not. In a ruling 1979 PLC 307, it has been held that definition of workman in Indus:nal Relations Ordinance, 1969 is presumptive and larger. Therefore, in the absence of any convincing evidence from the respondents establishing the status of the petitioner as employer or supervisor the petitioner shall be deemed to be workman according to the definition given in the I.R.O., 1969. In this ruling, it has been held that in the absence of any such evidence from the respondent side, the petitioner was deemed to be a workman. In the instant case, the respondents have established through documentary evidence on record, that the petitioner was performing the duties of managerial and supervisory nature and was acting on behalf of the respondent management and as such the petitioner is ousted from the category of workman because he was responsible for administration in the Mill as per his showing and to deal with the labour union while himself neither member or office bearer of any of the union. In view of the above discussion, I am of the view that the petitioner is not covered by the definition of workman or worker given under the Industrial Relations Ordinance, 1969. Even if, it is presumed for the sake of arguments, that the petitioner is a workman, this does not qualify the petitioner to file a petition before the Commission without an ingredient of unfair labour practice, on the part of the employer/management and that must be on account of his trade union activities which I am going to discuss in the next portion of the judgment.
9. As far as, the question of determination of unfair labour practice is concerned, there is lot of contradiction of pleas, taken by the petitioner, in his petition and rejoinder/affidavit, submitted in evidence. The petitioner in his petition, has made an averment that being Deputy Manager (Administration), he has to deal with labour unions for maintaining law and order situation and prevailing pleasant atmosphere. Certainly, it is on behalf of the management and not on behalf of the trade union/workers. On the other hand, the petitioner has changed his plea in the rejoinder and stated that he is a workman and of the basis of that, he was required to be proceeded with in accordance with law and the detail of trade union is not necessary and the same can be furnished verbally and the petitioner has stated as required in the petition. Whereas, in the affidavit he has deposed that on account of affiliation with labour/trade union and to dislocate him he was offered an appointment in another company of the same group and the deponent has filed the present petition based on the allegations of unfair labour practice and for enforcement of his right guaranteed under the Standing Orders Ordinance, 1968. In para. 6 of his affidavit, it has been deposed that his services were terminated to punish him on account of his trade union activities which constitute the acts of unfair labour practice on the part of the respondents. During cross- examination, the petitioner has also deposed that he is not member of any union and has never been member of the union throughout his career which is also not certified and annexed with petition. Regarding the fact that there are two different stands in his petition and affidavit, the deponent replied that his advocate knows better and he cannot explain this thing. This is an answer from which any Court of law can derive the result and come to the conclusion that what is truth behind it. In my view, this change of stance is an afterthought and came in the mind of the petitioner after filing of written statement by the respondents in which they have raised an objection that being Deputy Manager (Administration), the petitioner is not a workman and also is not a member of any trade union and that he cannot participate in the trade union activities because of his managerial/supervisory duties. After alleging this thing in the rejoinder and affidavit, the petitioner has also not produced any certificate which in my view, he cannot, from any trade union. Section 15 of the Industrial Relations Ordinance, 1969 clearly lays down the unfair labour practices on the, part of the employer against the workman and not against a person who is not covered under any labour law to be a workman. The petitioner being Deputy Manager. Cannot participate in the trade union activities and that he has also not mentioned that labour activities for which he has taken stand in the petition and in the absence of any such activities. This Commission cannot adjudicate upon the matter because unfair labour practice on account of trade union activities is the pre-requisite for invoking the jurisdiction of this Commission which is lacking in the instant petition so as to determine and examine streak of unfair labour practice.
10. The result of the above discussion is that the petition is without any substance and having no unfair labour practices involved in it, and the same is, therefore, dismissed without any costs. The order passed by this Commissioner on 6-12-1995 is also not in the field due to the order passed in the Writ Petition and as such the stay application is also dismissed with no order as to costs.