DECISION ' This judgment will cover two appeals namely Appeal No,KAR-23 of 2000 filed by M/s Plastic rafters hereinafter referred as Respondent Company and Appeal No,KAR-24 of 2000 filed by Muhammad Farooq, hereinafter referred to as applicant. Both these appeals across from the same order, dated 17th December, 1999 of Sindh Labour Court No,1, Karachi. The factual background giving rise to the above appeals is as follows. The applicant was employed in the Respondent Company as Hand Molding Operator on 1-1-1972. He performed his duties to the entire satisfaction of the Management and there was no complaint against him even though he was promoted from one post to another and transferred from one place to another. However, a few months after the new Management took over the control of the Respondent Company various methods were adopted to make the present employees leave their service so that new persons of the Management's choice could be appointed. As such the applicant who had put in nearly 25 years and was working as Incharge of PMC was called by Ch. Bashir Ahmed, Director Finance of the Respondent Company on 8-9-1997 and asked to tender his resignation. On his refusal he was directed to sit at the entrance of the factory. On the next day when he came for duty he was not allowed to enter the factory premises.
Instead he was served with charge-sheet containing allegedly false allegations that because he gave wrong position of stock available in PMC Department the Machines remained idle for 3 days causing huge loss to the Company. The applicant submitted his reply denying the said allegations.
However, domestic enquiry was ordered and Syed Salim Hussain Zaidi, Administration Officer of the Respondent Company was appointed as Enquiry Officer. As a result of the said enquiry the applicant's services were terminated but somehow the Termination Letter was not served on him.
The applicant served grievance notice dated 14-10-1997 which was communicated to the Respondent Company on 16-10-1997 but it was not replied. The applicant then filed grievance petition which was disposed by the learned Labour Court by order, dated 17th December, 1999.
2. Somehow both the parties felt aggrieved by the said order. The applicant was aggrieved by the findings of the lower Court on Point No,IV which read as under:-- "As a result of findings on the Point No,III above the applicant is entitled for, reinstatement in service but as the enquiry report does not give the findings with regard to the allegations in the charge- sheet, the respondents are not debarred from conducting fresh enquiry in accordance with law, if they so desired. In such case the back benefits would depend upon the result of the enquiry, else the applicant would be entitled for the entire back benefits."
' The applicant's prayer in his appeal, therefore, is that since fresh enquiry was not necessary, the above findings be set aside and the applicant be allowed full back benefits.
3. The respondent company has preferred appeal challenging the order of the Labour Court as a whole including the Labour Court's direction that if the Respondent Company so desired it could hold fresh enquiry and then the question of back benefits would depend upon the result of that enquiry.
4. In proof of his case, the applicant Muhammad Farooq filed his own affidavit-in-evidence, while in support of Respondent's Company's case the affidavit-in-evidence of Salim Hussain Zaidi Personnel and Administration Officer/Enquiry Officer was filed. The arguments of the learned counsel of both the parties were heard and the relevant written material available on the record was also gone through carefully. This is admittedly a second round of the litigation between the same parties. In the first round the question of limitation was resolved in appeal by this Tribunal remanding the case back to the learned Labour Court for decision on the remaining Issues. From the remaining Issues, the Issue relating to status of the applicant was very crucial. It was to be decided by the Labour Court whether the applicant was workman or not. It is an admitted position that when his services were terminated he was performing the duties of Incharge PMC. It is now well-settled that the status of workman cannot be determined either by his designation or by his salary but instead it was to be determined by the duties he was performing. Initially the burden was on the applicant to prove that he was a workman. His own version as given in para. 6 of his affidavit-inevidence is that the nature of his job was purely manual and he had no power of hiring and firing nor was he assigned any supervisory or administrative duties but he rather performed his duties under the instructions of Production Manager and his subordinates. There is also nothing to show that he had authority to grant or refuse leave to the workman of his Department.
Admittedly no List of his duties or any Charter of responsibilities was produced by the Respondent Company in rebuttal of the applicant's claim. On the contrary the Respondent's witness has admitted in cross-examination that it was the Personnel Officer who had power of making appointments of workmen and terminating their services. Again it is he who is empowered to grant or refuse leave to them.
5. Apart from above the learned Labour Court has correctly. Pointed out in its judgment that the very issuance of charge-sheet for the applicant under Standing Order 15(3) of the Standing Orders Ordinance, 1968 was sufficient to prove that the said Ordinance was applicable to the Establishment of the Respondent Company and consequently the burden to prove that the applicant was workman would now shift to the Respondent Company. In this connection the learned. Labour Court has rightly placed reliance on the case of Sindh High Court reported as PLD 1982 Karachi 917(934). The applicant's admission in his cross-examination that he worked as Incharge PMC would not exclude him from the category of workman because as pointed out above designation alone was not sufficient to determine the status of workman. The Respondent Company have failed to bring on record the nature of duties that the applicant was performing, particularly the duties he lost performed which would exclude him from the category of workman. I am, therefore, convinced that the applicant was a workman. Having arrived at this conclusion it would immediately follow that grievance petition filed by the applicant was maintainable.
6. The last point to be determined is whether the termination of the applicant's services was illegal.
Obviously the burden to prove the illegality of his termination order was on the applicant. His first contention in this regard was that the domestic enquiry which led to his dismissal from service was biased and was not held in fair and impartial manner. The main allegation required to be proved in the Enquiry against the applicant was that he had given wrong position of the availability of stock due to which the machines remained idle for three days causing huge loss to the Company. Before proceeding to examine if this allegation was at all correct and whether it was proved, it would be necessary to have a look at the past record of the applicant's more than 25 years service. There is no trace of evidence on record to show that during his long service of nearly 25 years he was ever involved in the case of present nature. How then such employee of the applicant's type was expected to indulge in such malpractice at the late stage of his service career. Looking to the nature of allegation it was rather surprising why the actual position of the stock material was suppressed-what material gain he expected to achieve from such concealment. If the intention was to commit theft in respect of the concealed material, that possibility was ruled out by admission of the Respondent's witness that for taking it out of the factory premises, not only gate- pass was necessary but even transport was required. Even otherwise it is clear from the enquiry report of which learned Labour Court has made a detailed appraisal that the Respondent Company has totally failed to bring home to the applicant the charges levelled against him. It is admitted that the wrong position of availability of Stock was not enclosed with the charge-sheet nor was it produced by the Management in course of the Enquiry Proceedings. The admissions in this regard made by Respondent's Company's witness are as under:-- "It is correct that prosecution did not submit the stock position of the material during the course of enquiry proceedings. It is correct that during the course of enquiry proceeding I was not shown the Stock report purported to have been prepared and signed by the applicant. "
7. The Respondents Company had also failed to prove any loss actually caused by misstatement of the applicant with regard to availability of Stock material. The witness of the Respondent's Company has further admitted: "It is correct that no Report regarding the stoppage of machines was produced before me by the prosecution side during the course of enquiry... It is correct that no assessment regarding loss accrued due to stoppage of the machines was produced by the prosecution during course of enquiry proceedings...The raw material available in the factory is supplied to various Departments of the Factory on their written requisitions and demands. Such material is always mentioned in the Stock Register maintained for the purpose. No Requisition Slip was produced before me by the prosecution during the course of enquiry showing that material was ever requisitioned by the applicant."
8. The learned lower Court has correctly observed that if the above admissions do not prove anything yet they are apt to create doubts about whole affair. It was least expected that the applicant with clean service record of 23 years would resort to such practice at the late stage of his career. Accordingly I hold that the charge as contained in the charge-sheet was not proved against the applicant. Therefore, I see no reason why fresh enquiry should be held. Merely because the Enquiry Officer had failed in his duties by omitting to record his findings would not make it necessary for holding fresh enquiry if the Respondents Company so desired. Even the Enquiry Officer for whose negligence the fresh enquiry was permitted by the Labour Court was the Respondent's Company's own man. The possibility of making such omission by him deliberately could not be ruled out. In any way there is absolutely no justification to call for fresh enquiry because even if the Enquiry Officer had failed to record his findings, the learned Labour Court or in appeal this Tribunal could decide keeping the enquiry proceedings in view of the charges levelled against the applicant were proved or not. As I have stated above that the Respondents Company had failed to prove the charges against the applicant The question of fresh enquiry would not arise.
9. The termination of the applicant's services was manifestly illegal owing to the Respondents Company's failure to prove the charges against the applicant but it was also illegal because no Termination Order was served on the applicant which is mandatory requirement of law. The dismissal Letter dated 1-10-1997 which was not filed with Reply Statement was produced at late stage with the affidavit-in-evidence of the witness of the Respondents' Company. Relying upon 1981 SCM R 631 it was argued on behalf of the Respondents Company that even if the Termination Order was produced at late stage as it was done in the present case it would not affect its legality.
That may be so but in the instant case the evidence available on record leaves no doubt in my mind that Termination Letter was prepared after the grievance notice was issued and served. Thus, the Termination order is illegal on two counts namely first that the charge was not proved against the applicant and second that Termination Letter was not served on the applicant and its production al the later stage would not rectify the wrong already done by the omission to serve the Order on the applicant.
' The upshot of the above discussion is that Appeal No,24 of 2000 filed by Muhammad Farooq applicant is allowed and the Appeal No,23 of 2000 filed by Respondents Company is dismissed.