DECISION ' This appeal is directed against the order of Sindh Labour Court No,1, dated 21st September, 1999 whereby the grievance petition filed by the respondent Muhammad Afzal was allowed and he was reinstated in service with full back-benefits.
2. The respondent's case in brief is that he was employed as Accounts Assistant with the appellants' Company where he used to do mannual/clerical work and as such he was governed by the provisions of Standing Orders Ordinance, 1968 and I.R.O., 1969. During his entire service of 13 years his service record was unblemished with no complaint whatsoever against him, yet he was falsely implicated in a case of misconduct. He being a permanent workman, was entitled to the benefit of safeguards provided by Standing Orders Ordinance, 1968, he was neither given any show-cause notice nor any enquiry was held against him before termination of the services by order, dated 30-9-1998. Dissatisfied with the said order he served the Appellants with a grievance notice, dated 19-10-1998 which was replied by the said Company by letter, dated 22-10-1998. Since the respondent's grievance remained unredressed, he filed grievance petition with two-fold prayer; his reinstatement in service and payment of back-benefits.
3. In reply statement filed by the Appellants Company it is stated that though respondents' initial appointment was Accounts Assistant with salary of Rs,1,200, yet on redesignation as an Import Officer vide order, dated 30-4-1997 his salary was raised to Rs,10,500 per month, in addition to providing him other benefits and facilities. As such he was not a workman at the time of termination of his services and therefore, the Labour Court had no jurisdiction to entertain his grievance petition. It has also been denied that his service record was without any blemish. The appellants' allegation against the respondent was that he was misusing transport facilities for the purpose of attending to Import/Export business of his father for which he had been repeatedly reprimanded. His performance gradually deteriorated particularly after promotion he had shown scant regard for work and discipline. His services were terminated on account of his willful insubordination and disobedience to lawful orders of superior officers. He committed disobedience by refusing to travel in a car owned by Appellants Company and driven by Faiz Muhammad, driver.
It was due to the objection of the said driver to his unauthorized use of the appellants' transport.
When Faiz Muhammad brought such malpractice committed by respondent to the appellants' notice, the respondent got annoyed with the driver. In support of these allegations the letters written by Faiz Muhammad had been attached with Reply Statement as Annexure-F and F/1. The respondent's services were terminated in terms of his appointment order, dated 13th October, 1985.
The termination order was 'not only in writing but it also gave the reasons for the termination. Since the respondent was not a workman, it was not necessary to serve him with any show-cause notice prior to the termination of his service.
4. I have heard Qazi Faez Isa in support of appellants' cas e and Ch. Latif Saghar on behalf of respondent Muhammad Afzal. With their assistance I also went through the relevant documents available on record.
5. Both the learned counsel agreed to confine their arguments to only one issue namely whether the respondent was a workman. Beginning his arguments Qazi Faez Isa submitted that though initial appointment of the respondent was made as Accounts Assistant, yet he was ultimately promoted as Import Officer to the officer's grade. According to him this promotion was given to the respondent in view of his securing B Corn; and LLB; degrees in course of his service tenure. He further contended that his remuneration was also raised to Rs,10,500. He submitted that his job was to look after all Imports including everything connected with Imports. Besides that he used to prepare Income Tax and Wealth Tax Return and attending to matters connected with employees Old Age Benefits Institution as well as those concerning with SESSI. He also invited my attention to his admission that though he was working overtime yet he did not get any payment for such overtime. According to him the staff car was always available to him. On the basis of his above submissions the learned counsel was of the view that it was proved that the respondent was not a workman, adding further that though the burden was on him to prove that he was a workman yet he had failed to discharge the burden. The learned counsel relied upon 1993 SCM R 488 on the point of burden of proof. He also cited PLD 1986 Supreme Court 103 in support of his arguments.
6. On the other hand the learned counsel for the respondent argued that not only the initial appointment of the respondent was of workman but even after his so-called promotion his status remained the same. He denied that the respondent failed to discharge the burden of proving that he was a workman. The learned counsel in this connection referred to the affidavit-in-evidence of the respondent Muhammad Afzal wherein he has stated on oath that he was a workman within the meaning of Standing Orders Ordinance and therefore, was competent to file the grievance petition.
Elaborating further he stated that his duties had all along been manual/clerical and that he was not doing any supervisory or managerial work nor anyone was working under him nor he had any administrative control over any worker or workman. His deposition to the above effect obviously went unchallenged.
7. It is a settled law that the status of a workman is determined on the basis of the duties he was required to perform and not on the basis of his office designation or the emoluments he was drawing. According to learned counsel the respondent's duties to which the appellants' learned counsel referred in course of his arguments were of the nature, the workman was to do. His duties were neither supervisory nor of administrative nature. Preparation of returns and other things which the respondent used to do was a clerical job. The so-called promotion allegedly given to the respondent was denied by him. The order of promotion does not bear his initial or signature.
According to the respondent it was a fabricated document. The alleged order of promotion, dated 30-4-1997 was at page 73 of appeal record. Its perusal does not show that respondent was promoted to higher post but instead it only said that he was redesignated as Labour Officer with effect from 1-5-1997, thus, the work promotion has not been used nor the said order contains the description of the functions that respondent was required to perform consequent upon his redesignation. The order also does not specifically mention the increase in pay and allowances that respondent became entitled on account of the said resignation. Even if there had been increase in his emoluments yet it was no guide to change of his status. Therefore, I am of the view that the respondent continued to remain as workman. My view was strengthened by the respondent's own statement made in his affidavit-in-evidence. No question was put to him in cross-examination nor he made any admission in reply to any such question, rebutting his claim to be a workman.
8. Having arrived at the above conclusion it automatically followed that as workman the respondent was entitled to safeguards provided in Standing Orders Ordinance. On close perusal of the termination order it would appear that the services of the respondent were terminated on account of his disobedience of the orders of Managing Director. As provided in Standing Order 15(3)(a) of Standing Orders Ordinance, 1968, wilful insubordination or disobedience amounted to misconduct. It is rather surprising that despite such serious charges of, misconduct levelled against the respondent neither he was given any show-cause notice nor any enquiry was held against him. Such omission was obviously flagrant violation of the relevant law. As such the impugned order of termination of respondent's services suffered from illegality, and therefore, was liable to be set aside.
' For the foregoing reasons, while upholding the decision of the lower Court the appeal is hereby dismissed.