DECISION ' In this appeal Messrs Karachi Sheraton Hotel, hereinafter referred to as' the Appellant-Hotel, has called in question, the order dated 23rd December, 1998 of Sindh Labour Court No,V, Karachi, whereby the grievance petition filed by respondent. Ghulam. Farid has been allowed and consequently he has been directed to be reinstated in service with payment of full back benefits.
2. The respondent's case briefly stated is that he was employed as Front Office Cashier in the Appellant-Hotel vide letter of appointment dated 22-3-1982 (A/2 Lower Court File). On satisfactory completion of three months' probationary period he was confirmed in the same capacity vide letter of confirmation (A/3 Lower Court's File). He was later redesignated (promoted) as General Cashier with effect from 1-4-1986 but his duties of clerical nature remained the same. On the said redesignation his salary was raised from Rs,2460 to Rs,3000. On 23rd September, 1992, he has alleged, he was called by Syed Arshad Ali Personnel and Development Manager in the Office Room of Controller and threatened him with dire consequences whereupon a letter of protest was sent to the Hotel Management by President CBA Union vide R/7. This letter was never replied. However, on receipt of CBA's letter, the order of termination of respondent's services. Ante-dated on 23rd September, 1992 was sent to his home address which was however delivered to him on or after 30th September, 1992. It was obviously an illegal termination letter as 'services no longer required' was no reason for the termination. The respondent brought the detailed grievance to the notice of the General Manager of the Appellant-Hotel but he neither suspended to the letter nor redressed his grievance. The respondent continued to remain jobless even after filing of grievance petition. He has denied that he was given managerial position or cadre or grade, adding further that he always performed clerical duties even after changed designation of General Cashier and Internal Auditor.
3. The grievance petition was resisted by the Appellant-Hotel. Completely repudiating the respondent's plea of being a workman though admitting at the same time that respondent's initial employment was of Front Office Cashier (i,e, of workman). According to the Hotel-Management's version of the case, the respondent was promoted as Head Cashier w,e,f, 1-6-1993 with powers of supervision and control. Again on 1-1-1992 he was promoted as Internal Auditor on consolidated salary of Rs,6516 he was given increment of Rs,1500 at the time of the said promotion. As Internal Auditor he was required to conduct checking of accounts of various Cashiers including General Cashier. His one such report of checking is at Annexure R/1. As Internal Auditor it was also his job to counter-check the Vouchers before payment. One such voucher counter-checked and signed by him is at Annexure R/2. The respondent was also competent to issue Certificate to various suppliers for and on behalf of Karachi Sheraton Hotel and one such Certificate signed by him is at Annexure R/4. Medical Bills before they were paid were counter-checked by the respondent in order to ensure that no bogus bills were submitted by the employees. Four such Medical bills verified and counter-checked by the respondent are at Annexure R/5 to R/8.
4. Apart from above the respondent was entitled to reimbursement of 100 litres of petrol every month. Two such bills submitted by him are at R/9 and R./10. Among other duties the respondent was also deputed to Nigeria to impart training to the employees of the sister Sheraton Hotel and Towers Nigeria and the letter of appreciation received from Financial Controller of the Hotel from Nigeria is filed at Annexure R/12. Like other workmen of the Appellant/Hotel he was riot member of the Workers Union nor any deduction was made on his account in this connection. He was entitled to 30 days annual leave whereas workmen were allowed only 20 days annual leave. All workmen working in the Appellant-Hotel were punching their time/Attendance Card but no such punching was necessary for the respondent who merely put his initials in the Register maintained in his Department. On termination of services, workmen are eligible for one month's salary in lieu of notice but the respondent like other Officers was granted three months' salary in lieu of notice to termination of his services. Like other workmen he was not eligible for Attendance allowance or Night allowance. The respondent used Dining Hall facility meant for Officers and not the Dining Hall used by workers. Furthermore the respondent was not only member of Officers Club but he was also office-bearer of the said Club. It was vehemently denied by the Hotel Management that the respondent continued to perform the clerical duties in the administration and General Controller Department. It has also been denied that thereto were out to him by Syed Arshad Ali, Personnel & Development Manager in the Office Room of Controller. 'According in the version Hotel Management the respondent's services were terminated on payment of three months' salary in lieu of notice on 23-9-1992. Copy of the letter of termination appears at R/13. As he refused to accept this letter by hand delivery it was sent to him by Registered Post on his residential address.
The Postal Receipt is at R/14 and its acknowledgment is at R/15.
5. The respondent filed his affidavit-in-evidence in proof of his case and he was duly cross- examined by the advocate of the other party (vide Exh.3-page-107 Lower Court's record). On the other hand on behalf of Appellant-Hotel. Affidavit-in-Evidence of Syed Arshad Ali Director Personnel and Development was filed and he was cross-examined by the advocate of the respondent (vide pages 141 to 165 Lower Court's record).
6. The main points that emerge for decision are; firstly whether the respondent was a workmen and secondly whether respondent's services were terminated in an unlawful manner.
7. Taking up the first point. It is an admitted position that with his employment as Front Officers Cashier in the appellant-Hotel the respondent started his service career as a workman. However, his status was subsequently raised twice, first as Head Cashier and then as Internal Auditor.
According to the respondent's own version despite the said elevation in his status his duties remained the same of clerical nature. Vehemently controverting this assertion, the learned counsel of the appellant-Hotel expressed the view that with promotion as Internal Auditor the respondent ceased to be workman, because not only his duties were changed but he also became entitled to such benefits and concessions which were not admissible to workmen. The contention of the said learned counsel was not without substance. The very word Auditor is self evident as it means to refer to a person whose job is to audit accounts etc; surely prepared by others. As such he cannot be placed at par with the persons who prepare the accounts. I am therefore, of the view that the work of Auditing is not performed by workman nor a person entrusted with audiding job can be called a workman. The learned counsel for the appellant-Hotel submitted that inter alia the respondent's duty was to supervise the work of as many as 16 employees. In support of his submission he referred to Annexure A/1 which clearly shows that as Internal Auditor he had given certain instructions to Mr. Hussain General Cashier for counting the cash. Accordingly the cash of 9th January, 1992 was opened on 13th January, 1992 and as soon as Mr. Hussain and the witness Miss Nusrat Fatma had counted the cash he went for the spot check and found that One Thousand Rupees Note was missing. It further shows that while questioning the above two persons about the shortage, he called Mr Shahid Ahmad Controller and in his presence Mr. Hussain checked the area of Cashier's Room and found the 1000 Rupee Note in waste paper basket. He therefore submitted report that it was deliberate out of theft for which necessary action should be taken against them.
Such job of checking the cash and detecting cash shortage cannot be done by workman. The learned counsel submitted that he used to counter-check the vouchers submitted to him before payment. He has referred to one such voucher which clearly shows that the respondent had done the counter-checking. The learned counsel has also referred to R/4 at page 133 which is Certificate given by the respondent Ghulam Farid. It was the Certificate of income given on behalf of the appellant-Hotel. The learned counsel has referred to R/5 to R/8 at pages 135 to 141, contending that these documents show that verification of reimbursement of the Medical Bills was also done by the respondent. He has also referred to his family details submitted by the respondent vide R/8 at page 143 which obviously cannot be done by any workman. Documents at R/9 and R/10 (page 145 and 147) provide the proof that respondent was allowed the facility of 100 litres of petrol per month.
The learned counsel further submitted that respondent was deputed to do the training of employees of Abujah Sheraton Hotel and Towers (sic). The letter written in this connection by Finance Controller. Robert (sic) of the said Hotel to, the Controller Karachi Sheraton Hotel (R/12- page 151) obviously supports the submission of the learned counsel.
8. Apart from above it was not denied that unlike workman the respondent was allowed 30 days earned leave. Club facility and the facility of availing the Dining Hall meant for Executives. It has also come on record that he was neither given shift allowance nor attendance allowance admissible to workman. It was also clear from the Termination Order at A/1 page 89 that he was given three months' notice unlike the workman who gets one month's notice in lieu of his one month's pay. This Tribunal's judgment in Appeal No, KAR-368 of 1998 has been relied upon by the learned counsel for supporting the above contentions. It was held in the said judgments:- "After appellant's promotion in the post of Junior Executive he no longer remained as workman and as such for the purpose of termination of his services new rules were applicable which inter alia provided that three months' pay in lieu of three months' notice was necessary for his termination."
9. On perusal of cross-examination of the respondent Ghulam Farid following admissions made by him are significant:
(1) It is a fact that after my promotion to pay group Scale IV. I did not pay the Union's monthly subscription.
(2) It is also a fact that suppliers do not get final payment unless their accounts are finally checked by me:
(3) It is a fact that R/5 to R/8 (Medical Bills to the Reply Statement) bear my signatures.
(4) I .Had no grievance whatsoever against any Officer of the Hotel nor I had made such compliant to the Management (but in the'same breath he states) I had given a complaint to the Management regarding the incident of 23-9-1992 regarding threatening me to resign from service.
Again says I never made any complaint to the Management against any officer during the course of my employment.
10. In the case reported as 1985 SCM R 1511 Bank employees appointed as an accountant was held not to be employed for' performing manual or clerical work but involving exercise of discretion and taking of important decision and as such he was not a workman.
11. I aria convinced from above discretion that the respondent was not a workman at the time of termination of his services.
12. Coming to the second point whether termination of respondent's services was unlawful, his learned counsel has relied on two decisions of Karachi High Court reported as 1990 PLC (C.S.)
295(sic) and 2000 PLC 325 arguing that the words "services are no longer required by the employer" .... Cannot be held as implicit good reasons for termination of services. As such he was of the view that the termination order which carried these words was not lawful.
13. On the other hand learned counsel for the appellant-Hotel has referred to the authority of Peshawar High Court wherein at page 507 it was held:-- "The minute perusal of the order of termination of service of the petitioner will show that his services were no longer required. We have considered this aspect of the matter very anxiously and we are of the opinion that the factum that the services of petitioner were no longer required was also a reason for termination of. His service. In arriving at this conclusion we draw benefit from the provisions contained in clause (1) of Standing Order 12 of the Ordinance which clearly lays down that for terminating employment of a permanent workman for any reason other than misconduct one month's notice shall be given either by the employer or the workman or one month's wages calculated on the basis of average wages earned by the workman during 'the last three months shall be paid in lieu of notice. It shall thus be seen that the services of a permanent workman can be terminated if no longer required but then he has to be given a one month's notice or his wages as aforesaid in lieu of the notice".
' The above conflict of views between the two learned counsel is of no material consequences because of the conclusion already arrived at that the respondent was not a workman at the time of termination of his services. As such he could not avail the benefit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969. Consequently the reason given in his termination order was not material. All that was required was whether he was given appropriate notice of three months as was given to the employees of his class. Since the said condition was satisfied there was nothing wrong with the order of his termination of services. Accordingly while allowing, the appeal, the order of Lower Court is set aside.