' This is an appeal under section 37(3) of Industrial Relations Ordinance, 1969, against the decision, dated 17th November, 1997, passed by the learned Sindh Labour Court No,2, at Karachi, whereby the grievance application for reinstatement with back benefits was dismissed.
2. I have heard Mr. S.P. Lodhi, representative for the appellant and Mr. Gulzar Ahmed, Advocate for the respondent. I also perused the Judgment alongwith the record of the learned Labour Court with their assistance.
3. Mr. Lodhi for the appellant submitted that the learned Presiding Officer has wrongly held that the appellant is not a workman. According to him, designation or pay is not the criteria to determine whether a person is a workman or not. It was also submitted by him that after expiry of three months, the appellant automatically becomes permanent and as such, his service could not have been terminated without assigning any reason therefor. It was also submitted by him that service of the appellant was terminated without assigning any reason and as such, the provisions of Standing Order 12(3) has, therefore, been violated and the appellant is entitled to be reinstated with back benefits.
4. Mr. Gulzar Ahmed, learned counsel for the respondent submitted that there are two questions, involved in the matter, firstly, whether the appellant is a workman and secondly, the appellant having taken all his dues in full and final settlement by cheque, is no more an aggrieved person and as such, the grievance petition was not competent. He referred to personal requisition form (page 143 of R&P) and submitted that the job title of the appellant was Secretary. He was put in CS- 1 (Confidential Secretary-1). He was, thus, an officer and not a workman. Brief out line of main duties (Profile) also refers that his main job was of office administration, P.C. Management, communication. The job of dictation record and files etc., was merely incidental. Learned counsel further submitted that the whole staff of the respondent company has been divided into two groups; officers and workmen. He referred to page 139, which gives the detail of nine categories of officers whereas at page 141, there is detail of seven categories of workmen. At page 147, there appears to be the appellant's appointment letter.
5. The said appointment letter provides, specifically, that he will be on probation for six months during which period, his services may be terminated by either party at any time without notice or remuneration in lieu thereof and without assigning any reason (Exh.A.W.-112). It was further provided at the end of the said letter that after completion (of the probationary period) the employment may be terminated by either party without giving one clear month's notice or pay in lieu thereof. In the beginning of page 151, it was also provided that, "during such time as you are in our service, your employment shall be subject to the employment rules and regulations as presently applicable to the Officers of Philips Electrical Industries of Pakistan Limited". The appellant in token of his acceptance of the above appointment, on terms and conditions laid down in the said letter, dated 1-7-1990, put his signature with writing in his own hand, "accepted the above terms and conditions". According to the learned counsel for the respondent it becomes clear without any ambiguity whatsoever, that the appellant was not a workman and, as such, the application under section 25-A was not maintainable. It was, thus, submitted by Mr. Gulzar that both the parties were at ad-item having similar mind, intent and purpose. The appellant joined his job in the Business Light Unit on 1-7-1990 (Exh.A.W.-1/3). The appellant service was, terminated by letter, dated 30-12-1998 (Exh.A.W.-1/7). On receipt of the said letter, the appellant collected all his dues. He, however, sent a grievance notice, dated 17-2-1991 which was duly replied by the respondent company their letter, dated 17-3-1991. Thereafter, the appellant filed the grievance petition filed the grievance petition in the learned Sindh Labour Court No,2 at Karachi. The appellant examined himself as his own witness and the respondent examined two witnesses namely (1) Mr. M.H. Saifee (Finance Manager and Attorney) (2) Taufeeq Hussain, Logistic Manager.
6. 'Mr. Gulzar also referred to a statement of the appellant that he did not receive the termination letter, which is proved to be false. This allegation has been specifically denied by R.W. Taufeeq, who, stated on oath in his affidavit-in-evidence as well as in the cross-examination that he had personally delivered the letter of termination to the appellant.
7. Learned counsel further submitted that the affidavit-in-evidence, filed by the appellant, was without annexing any document, even the grievance notice was also not produced with it.
Reference was made to the cross-examination of the appellant wherein he appears to have stated that. "I produce as Exh.A.W.-1/3. I see ann.R./1 and R/2, both are statement giving grades of the officers and workers respectively and I am aware of them. I produce it as Exhs.A.W.-1/4 and A.W.-1/5". He also admitted in the cross-examination that. "I was not member of the union"
(probably, by being an officer) (page-105). He also admitted that. " It is correct that the company has in its employment clerks, typist and stenos and they are all unionised staff..." He also admitted further that." It is correct to suggest that I was posted as Confidential Secretary with Mirza Sarfraz Baig, who was Senior Manager. Professional Light (wrongly typed as Life)
Department It is correct to suggest that this department was also consisted of several clerks, typist and steno It is correct to suggest that the work of this department was to acquire or gain business for the Company. It is correct to suggest that I was not supposed to disclose all informations and matters of Mr. Sarfraz Baig which was confidential. He also stated that. "I was verbally transferred and posted as a Confidential Secretary with Mr. Toufiq Hussain the Manager Logistic Lights (wrongly typed as Likes) It is correct to suggest that in this department also there were several clerks, typist and stenos".
8. Learned counsel submitted that the nature of job of the appellant was very sensitive inasmuch as he used to place the quotations, bids and tenders received from outside to his boss, which was strictly confidential.
9. Referring to the affidavit-in-evidence and the cross-examination of his own witness, Mr. Gulzar, first referred to the cross-examination of Mr. Saifee (page 135 of R&P). In the cross-examination, the witness stated that." I had divided two categories of the employees on the basis of the nature of the job. It is not necessary for a worker to become the member of the union but the officer cannot become the member of the Workers Union....The applicant was performing his duties as per pro forma Exh.A.W.1/1. No separate duties were assigned to the applicant in the appointment or any other letter. I produce Exh.A.W.1/6. According to Exh.A.W.1/6, the total amount of Rs,7,090 has been shown against the name of the applicant and the said amount is for his salary, house rent allowance, conveyance allowance and bonus and the said amount of Rs,7,090 was the final dues. I produce Exh.A.W.1/7) ...The Exh.A W.1/6 is letter.To the bankers for making payment to the applicant.... It is not a fact that ,the applicant was a worker in the eyes of law. The applicant was attached with the head of, the department". Referring !To the cross-examination of R. W.2 Taufeeq Hussain, with whom the appellant, admittedly, worked as his Confidential Secretary after the first chief Mr. Sarfaraz was transferred. He stated in the cross-examination by Mr. Lodhi that, "the applicant had worked under me for about one month or one and a half month. It is not a fact that I have not delivered the termination order to the applicant.
10. Mr. Gulzar Ahmed, in reply to the submission of Mr. Lodhi that the period, prescribed under Standing Order 1 for a temporary worker is three months only. On the expiry of three months, the worker automatically becomes permanent and as such, for termination of service, he will be governed under Standing Order 12(3). Mr. Gulzar submitted two-fold arguments i,e,(1) that the provisions of Standing Order 1(b) and (c) are not attracted because the appellant is not a workman (2) without prejudice to the above plea, he next submitted that the appointment letter itself provides probationary period of six months in express term and it was so accepted by the appellant. The appellant, therefore, cannot turn around with a plea that he had become permanent. His service was terminated on the last date. Referring to the definition of permanent workman, appearing in clause 1(b), a worker who has been engaged on work of permanent nature, likely to last for more than nine months and satisfactorily completed a probationary period of three months. Referring to clause (b), learned counsel submitted that the first and foremost condition for a permanent workman is that firstly the post is likely to exist for more than nine months and secondly in the instant case, there is no evidence at all that the post was likely to continue for more than nine months.
11. Lastly Mr. Gulzar submitted that in order to confuse the issue, the appellant, alongwith his grievance petition also filed a photo copy of an advertisement, stated to have appeared in Daily Dawn, dated 15-2-1991 by the advertisers name of Philips Electrical Company of Pakistan (Pvt.)
Limited, P.O. Box No,7101, Karachi. Just to impress upon the Court with mala fide intention that after terminating his service, the Company issued this advertisement whereas the name of the Company, of which the appellant was admittedly an employee of the respondent, registered as Philips Electrical Industries of Pakistan Limited. The P.O. Box number, given in the advertisement, also did never belong to the respondent Industry. The appellant has tried to camoflage both by enclosing the advertisement alongwith his petition.
12. After hearing arguments for both the parties. Mr. Lodhi seems to be correct in saying that mere designation and salary cannot be deciding factor to hold a person to be a workman or not. But on the basis of facts, which have come on record and have been referred to before me, I have no doubt in my mind that the appellant was not a workman and I concur with the findings of the learned Presiding Officer, based on facts. As regards the second plea, since the probationary period was already fixed as six months, merely by passage of nine months, the appellants does not become permanent automatically, in the absence of any evidence that the work was to continue for more than nine months. Moreover, the post of Confidential Secretary has been shown to call for bids and after scrutiny submits the same to his boss. The electrical work, some what, is involved therein, but it will not turn the appellant to be a Clerk. The clerical work was merely incidental or ancillary and not his main job. The assertion, that he was a permanent worker, also falls flat, as such, there seems to be no violation of the provisions of Standing Order 12(3). There was no need of any notice because the appellant was employed on probationary basis for a fixed period. Reliance may be placed by me on a case reported as Mrs. Safia Shabnam v. Sindh Labour Court No,V, Karachi and 2 others (PLD 1976 Karachi 147) where the petitioner was engaged on contract basis and, therefore, only by virtue of the fact that these contracts were continuously given to her for about 13 years she cannot be termed as a permanent or temporary employee because from the very inception she was not employed by the respondent on permanent or temporary basis.
13. For the above discussion, I concur with the findings of the learned Labour Court on both the issues and di miss the appeal. Announced in open Court, this 6th December, 1999.