' ZIA MAHMOOD MIRZA (CHAIRMAN).---This appeal under section 22-D of I.R.O., 1969 is directed against the order of learned Single Member of this Commission, Lahore Bench, dated 16-94999 whereby the appellant's Petition No,4-A(3472) of 1995-L has been dismissed finding it to be without any substance and "having no unfair labour practice involved in it".
2. Facts relevant for the disposal of this appeal, briefly stated, are that the appellant was employed as Deputy Manager (Administration) in the Nishat Group of Industries respondent No,1 when his services were terminated vide order, dated 28-11-1995. Feeling aggrieved, the appellant filed the aforementioned petition under section 22 A(8)(g) of I.R.O. Before a Single Bench of this Commission at Lahore to challenge the order of his termination contending therein that in the performance of his functions as Deputy Manager (Administration), he had to contact the Labour Union, "for law and order situation and pleasant atmosphere" due to which the respondents suspected him to be indulging in the labour activities. The respondents, therefore, in the first instance, transferred him from Dera Ghazi Khan to Bhai Pheru, District Kasur, with a view to victimise him. It was further alleged by the appellant that after his transfer, his salary was withheld by the respondents for few months which was later released on his representation. Subsequently, the respondents terminated his services on 28-11-1995 under Rule 14.1 of Employees Services Rules, 1982 but without complying with the provisions of the said Rules as he was neither issued the prior notice of 90 days nor was he given pay for the notice period. Grievance was thus, made by the appellant in his petition that he was victimised by way of unfair labour practice on the basis of suspicion of his being involved in Labour Union activities "which he had to deal in his official assignments as an Officer of Administration".
3. The appellant's petition came up for preliminary hearing before the then Chairman of this Commission who by his order, dated 26-12-1995 admitted it to regular hearing and suspended the operation of the impugned order of termination as also of previous transfer order till the disposal of the case.
4. The respondent resisted the appellant's petition by filing the written statement wherein preliminary objections were taken to the effect that the appellant was inducted as an officer in the respondent-establishment and throughout his career, he was not required to do any manual or clerical work and at the time of termination of his services, he was performing duties as Deputy Manager (Administration) and drawing salary of more than Rs,16,000 per month and as such he was not a worker or workman under the labour laws and could not, therefore, invoke the jurisdiction of this Commission. It is also submitted that the appellant had not given any details of his trade union activities which could offend the employer and thus, the jurisdiction of this Commission was not attracted. An objection was also raised by the respondents that the appellant had failed to give any details of any unfair labour practice on the part of the respondents and as such the appellant's petition was liable to be dismissed on this score alone. On merits the respondents controverted the allegations made by the appellant and reiterated their contention that the appellant being Deputy Manager (Administration) was not required to do any manual or clerical work and as such he could not claim to be considered as workman. It was further submitted by the respondents that the services of the appellant were terminated in accordance with the rules and he was offered salary of 90 days. The termination order was served upon him which he refused to receive and the same was accordingly sent to him on his known residential address through registered post but it came back undelivered. The respondents reaffirmed their objection that the appellant failed to give any details of his trade union activities or of any unfair labour practice committed by the respondents. It was pointed by the respondents that being an officer with the rank of Deputy Manager (Administration), he could not undertake any trade union activities. The appellant submitted re-joinder to the respondent's written statement contending therein that he was a workman as defined under section 2(i) of Standing Orders Ordinance.
5. Both the parties led evidence through affidavits in support of their respective contentions. The appellant submitted his own affidavit while the respondents filed affidavit of Mr. Muhammad Iqbal Shahid, Deputy Manager (Administration). The appellant in his affidavit reiterated his version set- forth in his pleadings and alleged that his services were terminated to punish him on account of his trade union activities which constitute the acts of unfair labour practices on the part of the respondents" He also added therein that if he was given the benefits of Golden Hand Shake Scheme introduced by the respondents company, he will not press his petition for reinstatement.
The affidavit of the respondents' witness also repeated the version given in the respondents' written statement. The respondents' witness stated in his affidavit that the appellant was holding a key- post of Deputy Manager (Administration) at the time of his termination who was drawing about Rs,16,000 per month. It is further added that he was enjoying the status of Deputy Manager (Administration) and was issuing Orders in that capacity which were appended as Exhs.R.12 to R.24.
The affidavit of the respondents' witness further proceeded to state that the appellant had the power to control and supervise the business of the respondents and never performed any manual or clerical, skilled or unskilled job. His substantive job was to supervise the work of his subordinates and issue orders accordingly. He used to approve leaves to his subordinates. Copies of the leave application were attached with the affidavit as Exhs.R.25 to R.36. As regards the Golden Hand Shake Scheme of the respondent-company, it was pointed out by the deponent that the same was introduced after the services of the appellant were terminated.
6. The deponents on either side were duly cross-examined. The appellant during his cross- examination admitted that he was appointed as Security Officer on 28-11-1982. He volunteered that he was converted as Junior Commercial Officer. He also admitted that he was promoted as Assistant Manager Admn. On 25-6-1987 and as Deputy Manager Admn. On 1-10-1991. He was shown documents mark A/1 to A/17 which he denied having issued. He admitted that he was granted house building loan of Rs,1,32,000. He, however, could not say as to how much advance was given to the workers. He denied that he was drawing Rs,16,000 per month as salary and stated that he was drawing Rs,15,000 something. The appellant further stated during his cross-examination that the Management had directed him to resolve the dispute between the union and the Management and also to negotiate with them on other matters. He admitted as correct that "I have never been member of any trade union throughout my service". He also admitted that he did not make any complaint with regard to unfair labour practice to any other department before filing the petition. A question was put to him that the contents of his petition and his affidavit were inconsistent to which he replied "my counsel knows it better". He denied that he had been recommending grant of leave to his subordinate employees.
' The respondents' witness during his cross-examination produced copy of the duty charge of the appellant as Exh.R/37/1-3 and denied that the document R/37 was bogus. He also denied that the signatures on documents Exhs.R/12 to R/35 were bogus. The witness denied that the appellant was working with his own hands.
7. The learned Single Member first of all addressed himself to the question as to whether the appellant was a workman or not and after examining the pleadings and the evidence on the record, the learned Member observed that the appellant failed to prove through documentary evidence that he was a workman. The learned Member accepted the documents mark A/1 to A/17 with which the appellant was confronted during his cross-examination and which he denied having issued, with the observation that "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 learned Member also took notice of the appellant's statement made during his cross- examination that he had been directed by the management to negotiate with the union to resolve the dispute between the union and the management which fact, it was observed, showed that the appellant "was acting on behalf of the management and not on behalf of the union". The learned Member accordingly found "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 workmen 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". The learned Member further proceeded to hold that even if it be presumed for the sake of arguments that the appellant was a workman, this did not qualify him to file a petition before the Commission without making out a case of unfair labour practice.
8. On the question of unfair labour practice, the learned Member observed that there was lot of contradiction of pleas taken by the appellant, in his petition and rejoinder/affidavit submitted in evidence. The learned Member pointed out that in his petition, the appellant made an averment that as Deputy Manager (Administration), he had to deal with Labour Unions for maintaining law and order situation and creating pleasant atmosphere which function, it was observed, was certainly performed by him on behalf of the management and not on behalf of the trade union/workers. The appellant, however, changed his stance in his rejoinder by contending therein that he is a workman and in para. 6 of his affidavit-in-evidence, he deposed that his services were terminated to punish him on account of his trade union activities which constitute an act of unfair labour practice on the part of the respondents. It was noted by the learned Member that the appellant during his cross-examination deposed that he was not a member of any union and has never been a member of any union throughout career. The learned Member further noted that when this inconsistency in the petition and the affidavit was pointed out to the appellant, he could not explain it and replied that his advocate knew better. This change of stance by the appellant, in the view of the learned Member, was an afterthought which was the result of the objection taken by the respondents in the written statement that the appellant being a Deputy Manager (Administration) was not a workman nor was he member of any trade union nor he could participate in the trade union activities because of his managerial/supervisory duties. The learned Member also took particular note of the fact that the appellant had not even produced any certificate of membership of any trade union. The learned Member finally held that the appellant being Deputy Manager could not participate in the trade union activities nor did he refer to any such activities and that in the absence of such details, it was not possible to determine whether the impugned action was tainted with any element of unfair labour practice. With these findings, the learned Member proceeded to dismiss the appellant's petition holding that it had no substance nor was any unfair labour practice involved therein. This was vide order dated 16-9-1999 impugned in this appeal.
9. We have heard the learned counsel for the appellant at quite some length and have also minutely examined the evidence available on the record. The finding of the learned Member that the appellant failed to prove his status as workman is not open to any exception. The appellant has not brought any cogent and convincing evidence on record to prove that he was a workman within the meaning of the labour laws. On the other hand, apart from the admission made by the appellant, sufficient evidence was brought on record by the respondents to prove that the appellant as Deputy Manager (the post which he held at the time of his termination) was performing functions of supervisory/managerial nature. Reference in this behalf may be made to the appellant's statement made during his cross-examination that he had been directed by the management to negotiate with the union to resolve the dispute between the union and the management. The duty/function so assigned to the appellant was clearly managerial in nature as in performing this function, he was acting on behalf of the management and not on behalf of the union, as rightly observed by the learned Member. The finding of the learned Member that the appellant was performing the duties of managerial and supervisory nature and he was acting on behalf of the respondent-management is also duly supported by the documents marked A/1 to A/17. It is true that the appellant when confronted with these documents during his cross- examination denied having issued them but this denial has been rightly repelled by the learned Member and for good reasons. The appellant would naturally deny these documents as they clearly indicate that he had been performing the functions of supervisory/managerial nature.
10. We are also in full agreement with the finding of the learned Member that the case of the appellant did not involve any element of unfair labour practice. Acts of unfair labour practice on the part of the employer are specified in detail in various clauses of section 15(1) of the I.R.O., 1969 and the case of the appellant is not shown to fall within the purview of any of these clauses.
Needless to observe that in order to bring the case within the purview of section 15(1) of I.R.O., the appellant was required to prove that his termination was motivated on account of his trade union activities. Far from proving this fact by producing any evidence, the appellant admitted during his cross-examination that he, was not even member of any trade union and has never been a member of any union throughout his career. His case, on the contrary, was that as Deputy Manager (Administration), he had to deal with the labour union for maintaining law and order situation and establishing pleasant atmosphere. This function as observed by the learned Member and rightly so, was performed by the appellant on behalf of the management and not on behalf of the trade union/workers and as such it could not by any stretch of imagination be treated as trade union activity so as to bring his case within the purview of section 15(1) of I.R.O., 1969. That being so, the appellant could not legitimately claim that his services were terminated with a view to punish him on account of his trade union activities which alone can constitute an act of unfair labour practice on the part of the respondents. In this view of the matter, no exception can be taken to the finding of the learned Member that the case of the appellant did not involve any unfair labour practice.
Needless to state that the jurisdiction of this Commission is confined only to those cases which have the element of unfair labour practice. In the circumstances, the petition filed by the appellant before this Commission to challenge the order of his termination, in our view, was not maintainable and it was rightly dismissed by the learned single Member.
' Upshot of the above discussion is that the impugned order of the learned single Member is unexceptionable. This appeal is devoid of any merit and the same is accordingly dismissed in limine.