DECISION ' This appeal arose from the order, dated 27-9-1999 of Sindh Labour Court No,V., whereby the grievance petition filed by respondent Sohail Ahmed was allowed with direction to the Appellants Club to reinstate him within 15 days as payment of all back-benefits.
2. The respondents' case, as disclosed in his grievance petition, was that he was employed in the Appellants Club as permanent workman with effect from 1-11-1976 and was promoted as Assistant Store-Keeper with effect from 1-1-1983 and on account of efficient performance of his duties he was further promoted as Store-Keeper with effect from 1-3-1989 and Chief Store-Keeper with effect from 1-7-1991. He was a member of Workers Union and held in high esteem by the members of the Union. As desired by the. Union memebrs he contested the election of the General Secretary of the Union held on 13-8-1995 and was elected unopposed alongwith his panel. On the Election day, as soon as result was announced at about 10.30 a.m. During the tea break, the workers who were present near the Union Office gave him congratulation which he responded with thanks. Being unhappy over his Election as General Secretary with all his Panel the Management of the Club charge-sheeted him on the very Election day i,e, 13-8-1995 with allegations that in defiance of the Managements' specific instructions contained in the Notice dated 13-8-1995 and the letter of the same date addressed to the Union, he alongwith some other employees of the Club gathered in Car Parking area of the Club in front of the Accounts Office where speeches were delivered by him besides the newly-elected President Mr. Muhammad Nasim Akhtar with regard to introducing themselves as new office-bearers of the Union. Consequently the work remained suspended for about 45 minutes. As the reply to the charge-sheet was not satisfactory, enquiry was ordered and Mr. Mehboob Rizvi was appointed as Enquiry Officer. Though Enquiry Report was submitted on 23- 10-1995, yet action thereon was deferred until after return of the respondent from Haj on 9-5-1996 when by order of the same date his services were terminated and the said order was served on him on 11-5-1996 by Registered Post. On receipt of termination letter, the respondent submitted grievance notice dated 23-5-1996 but without any result. He therefore, filed grievance petition on 24-7-1996.
3. In the Reply Statement the Appellants Club have denied the allegations of the respondent's victimization on account of his union activities. They have also denied that they were unhappy with the Election of respondent as General Secretary of the Union. Their case was that though permission for holding the General Body's meeting within Club premises was refused, yet it was held on 13-8-1995 at 10.30 a.m. During working hours and not only speeches were made but also noisy slogans were raised, thereby disturbing tranquil atmosphere of the Club so much so that many members of the Club took serious exception to holding of such meeting. Further aversion of the Appellants Club was that enquiry against the respondent was got conducted by impartial Enquiry Officer and he was provided full opportunity for participating in the enquiry and he was given a copy of Enquiry Report. Therefore in no way the action taken by the Appellants Club was mala fide.
4. I have heard the arguments of the parties' counsel and have also carefully gone through the relevant written material available on record.
5. The learned Labour Court framed four Issues. The first Issue related to the status of the respondent, i,e, whether he was a workman. According to the respondent's own claim he had been a workman throughout his service within the Appellants' Club. As regards the respondent's status of not being a workman, nowhere in their Written Reply of the Appellant Club there is even a passing reference in this connection. On the contrary it is stated in para 1 of the Written Reply that the contents of para 1 of Grievance Petition that the respondent was employed in the Appellants Club as .a permanent workman are correct and admitted. Again in para. 3 of Reply Statement no comments were made on the contents of the corresponding para. 3 of the grievance petition that the respondent was a bona fide member of Sindh Club Employees Union, which amounts to admission that the was member of the Union. This admission coupled with the admitted fact that the respondent was elected as General Secretary of the Union clearly proved that respondent was a workman. Had he not been workman the question of his enrollment as member of the 'Union would not have arisen nor could he have contested election as office-bearer of the Union. Apart from this the learned Presiding Officer of the Labour Court has made certain observations with regard to the respondent's status as workman which are reproduced hereunder:-- "the respondents themselves admitted the applicant to be a workman hence they resorted to action under Standing Order 15 of the Standing Orders Ordinance, 1968. Had the applicant not been a workman the respondents would not have been under obligation to initiate enquiry proceedings against the applicant. The conduct of enquiry against the applicant by itself proves that in the eyes of the respondents the applicant was a workman."
6. In face of all the above reasoning in support of the respondent's status of being a workman, mere admission in cross-examination that two Assistants and two helpers worked under him does not and cannot exclude him from the definition of workman particularly when there is no further clarification as to the job assigned to the said Assistants/helpers. The learned counsel for the Appellants Club cited 1993 SCM R 672 in support of his arguments that the burden was on the workman to prove his status as workman. In the present case I must say that the necessary burden has been fully discharged by the respondent as is clear from the above discussion. I therefore, support the finding of the learned Labour Court on the above Issue that the respondent was a workman.
7. The second Issue that falls for decision is whether services of the respondent were terminated in unlawful manner. Admittedly the respondent's services were terminated as a punishment for misconduct on his part proved against him in course of the enquiry. The allegations levelled against the respondent were that in defiance of the order of tile Club Management the meeting of the General Body of the Union was held not only within the Club premises but also during working hours. In this connection it has come on record that the request of the Union's General Secretary to hold the General Body's Meeting within Club premises for election of its office-bearers was turned down. The Management's refusal was reiterated even on the day of the meeting i,e, 13-8-1995 both by letter addressed to the General Secretary of the Union and notice pasted on the Notice Board.
The case of the Club Management is that even such timely warning was totally ignored and the meeting was held where speeches were made by winning office-bearers and slogans were raised, thereby disturbing peace and tranquillity of members of the Club and even the work of the Club was seriously affected as many of the workers while abandoning their work had participated in the rally. Thus the charges levelled against the respondent were proved against him and in result his services were terminated.
8. In order to appreciate the Club Management's case as stated above, it has to be ascertained as to who was responsible for convening the meeting in question. Surely it was not the respondent because it was not on his motion that the meeting was held. It was true that he was one of the office-bearers who were elected during that meeting, but his mere election as General Secretary could not make him responsible for holding of the meeting and all the commotion that took place at the time of the meeting. It is an admitted position that it was then General Secretary Abdul Ghaffar who had written for permission of the Club Management for holding of the meeting. It was again the same General Secretary to whom the refusal of permission of the Management was conveyed. If the meeting was held despite the directions of the Management of the club to the contrary, it was the former General Secretary and other office-bearers of the Union who were responsible. But if the holding of the meeting was the result of collective decision of the old as well as new office-bearers and other members, then there was no justification to single out the respondent alone for action. Since he was elected in the said very meeting, it does not appeal to reason that he was party to the decision of holding the meeting on the specified date, time and place. Moreover there is no such evidence on record showing the action was admittedly taken against either the Ex-General Secretary or new President or any of the office-bearers old as well as new or any other members of the Union, there was absolutely no justification to make the respondent alone responsible for the whole show.
9. The learned Labdur Court in its judgment at page 5 has reproduced some important admissions made by Mr. Amjad Rabbani, Secretary of the Club in course of his cross-examination. It appears from his admissions that neither the Ex-General Secretary Abdul Ghaffar nor the newly- elected President Nasim Akhtar was charge-sheeted though they were still in service. It is also clear from the admission that no action was taken even against those who returned to their duty late. It is thus clear that those who had called the unauthorized meeting disobeying the instructions of the Club Management were not taken to task, as no action was taken against them but the respondent who was manifestly not responsible for calling the meeting or for creating commotion in the meeting was unjustifiably made the target of the wrath of the Club Management as his services alone were terminated. There is no tangible evidence to prove that the work of the Club had slowed down or came to stand still in any manner. The meeting took only 45 minutes to last. As such it was difficult to believe that during such short span of period which was said to be tea break the work of the Club received such a set back that it cast the respondent his more than decade old employment.
10. The third Issue is with regard to payment of back-benefits. No doubt the respondent has admitted in course of his cross-examination that he has a degree of M.A. Beside being Homoeopathy's doctor. He also admitted that he had part-time Clinic of Homoeopathy. These admissions, in my opinion, would not disentitle him to back-benefits because he was doing practice as Homoeopath and running part-time Clinic even prior to termination of his services.
Whatever he earned from his said private practice could not be interpreted as his income earned during the time he was working as Chief Store-Keeper in the Club. As such his request for back- benefits is allowed.
' In view of the above discussion, the order of learned Labour Court is maintained and the appeal filed by the Appellants Club is dismissed.