DECISION Mr. Bakhtiar Ali Afghani, petitioner, was employed as Associate Engineer in the Roti Corporation of Pakistan Limited, Gulberg-III, Lahore. His services were terminated on 9-9-1976. He filed this petition under section 25-A of the Industrial Relations Ordinance, 1969, challenging the order of his termination.
2. The respondent contested the petition on the following grounds :----
(1) That the petitioner was not a workman, therefore this Court has no jurisdiction to entertain his petition.
(2) No grievance notice was served by the petitioner upon the Management.
(3) That the services of the petitioner were terminated in accordance with law by way of simple termination with one month's pay in lieu of notice.
In order to prove a workman, the petitioner has placed documentary evidence on record. He was appointed as a Machine/Fitter in the organisa--tion of the respondents in the pay scale of Rs. 250- 18-340-EB-20-440--EB-20-540 vide appointment letter dated 7-6-1975 (Exh. P-1). He was a temporary employee. He was confirmed with effect from 14-9-1976 vide letter dated 26-2-1976 (Exh. P-3). He was designated as Associate Engineer in the pay scale of Rs. 400-200-600/25-750 vide letter dated 12-2-1976 (Exh. P-2).
4. A Mechanic/Fitter is undoubtedly a workman in accordance with the definition given in section 2
(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
He has to perform skilled manual labour. Originally the petitioner was appointed as a Mechanic/Fitter. After about nine months of his service, he was designated as Associate Engineer and he was also placed in a higher grade. The letter Exh. P-2 does not show that the duties of the petitioner were changed.
5. The other documentary evidence explains the nature of duties of an Associate Engineer in the organization of the respondent. On 14-5-1976, the Mechanical Engineer vide order Exh. P-6 issued the following instructions to the Association Engineers :----
(1) They will clean Derby and its machinery parts after each shift.
(2) After such shift the warm water from the boiler should be drained off and fresh water should be passed through.
(3) Spray nozzles should be removed off after the last shift and after cleaning he put in store. The next day they should be installed before the shift starts.
(4) Fitter of the water passing through spray nozzles should be cleaned after each shift.
(5) Swing trays should be cleaned after 3 days.
(6) Mixer should be attended perpetually.
6. On 19-5-1976, the Electrical Engineer vide letter Exh. P-4 conveyed instructions issued by the General Manager to the Associate/Sub-Engineers. These instructions are;
(1) At the start of the shift the Associate Engineer, Sub-Engineer on duty should operate the machines, themselves.
(2) They should check the plant from Sifter to the Packing Machine a's soon as their shift is started.
(3) One of the Associate Engineer Sub-Engineer must stay at the oven till such time the plant is in operation and see the oven temperature in maintained throughout at different stages.
(4) For the safety of Boiler Heater, water supply to the Boiler should be checked before switching on the humidification circuit.
(5) The point marked Oil in the Packing Machine and Derby should be properly oiled before the start of each shift.
(6) Oiling and greasing schedule should be strictly followed.
(7) Cleaning of the Sensitive parts of the plants should be done thoroughly.
(8) Besides the plant operation and maintenance smooth supply of Sui gas, a water and electricity should be ensured. Water and electrical appliances should be maintained properly.
(9) While one duty they must wear the prescribed uniform.
(10) As soon as any complaint is received from any Department of the Regional Office, Sales Department or Production Department regarding failure of electricity or any other defect in the fans fluorescent tubes, table lamps, call bells, etc. The same must be attended to and the needful done immediately and the report in this regard should be submitted to the incharge with a copy to the Regional Office.
(11) When the shift is over each Associate Engineer, Sub-Engineer on duty must fill in the prescribed printed pro forma RP-77/78 in which the defects, if any, during the shift and the immediate remedial measure taken to remove the same should be precisely recorded. This pro forma should be prepared in triplicate, the original should be forwarded to the Production Department for record, the second copy may be forwarded to the Regional Office and third copy may be kept by the Associate Sub-Engineer concerned for his own record."
7. A Lubrication Schedule is given in Exh. P-9. It has given a detail of 31 categories of machinery.
Different types of lubricants are to be applied to different types of machines. The Schedule shows that one machine was to be lubricated daily where the majority of them were to be lubricated weekly. There were certain machines which were to be lubricated fortnightly, monthly, or quarterly, etc. The letter Exh. P-S dated 30-8-1976 provides that the duty of lubrication in accordance with the schedule was of the Associate Engineers.
8. On 4-9-1976, vide letter Exh. P-5 the Mechanical Engineer issued the following instructions to the Associate Engineers :-
(1) The thermodose filter should be cleaned every month.
(2) Dough Room Air-conditioners should be serviced once a month.
(3) Proofer air-conditioners should be serviced after every three months.
(4) Wire gauze and the reflecting surface of the inspect-o-cuters should be cleaned every month.
(5) The sheeter rollers with tafferel wrapping need no cleaning with scrapers while the other should be cleaned with scrapers from beneath the sheeter tables.
(6) Maintenance and lubrication schedules should be followed strictly.
9. On 8-6-1977, the Assistant Manager vide letter Exh. P-10 ordered the Associate Engineers to complete the following job :-
(1) Rectifying the defect developed in the fluorescent tubes in the RDAM (Comm.'s) room.
(2) Fixing of two framed portraits of the Quaid-i-Azam in the rooms of RGM (Factories) and RDCA.
(3) Fixing a board in the room of A.M. (M.A.).
(4) Fixing a board in the room of the M.D.
(5) Fixing a brass-stay in the M.D's. Room.
(6) Giving water connection to watercooler in the kitchen.
10. Exhibit P-12 contained seven fault reports relating to gas consump--tion, energy consumption and mechanical faults. They show that whenever there was a fault during the operation of any machine, it was removed by some Associate Engineers. Exh. P-1 shows that an Associate Engineer was responsible for the maintenance work. They were also allowed to receive overtime wages in accordance with the letter Exh. P-13.
11. In view of the above documentary evidence it transpires that the duties of an Associate Engineer are to operate the machines, to maintain the proper supply sui gas, electricity and water, to remove any default occurring during the operation, to clean and oil the machinery in accordance with the prescribed schedule and to do any other relating to the functions of the machine. All the above duties are to be performed by hands and without any manner of doubt they can be termed as skilled manual work. They are the duties of a Fitter or a Mechanic. In fact, the petitioner was appointed as Fitter/Mechanic. At a later stage, he was designated an Associate Engineer without changing the nature of his duties. Of course, he was also placed in a higher grade. Change of designation or payment of higher wage did not make any difference. In case the petitioner was a workman at the time of his appointment, he shall remain a workman even after the above changes.
12. The petitioner appeared as his own witness. He has given in detail the duties performed by him.
More or less they are the same as given in the documentary evidence. He denied that he had any subordinate with him. He had no, powers to employ any workman or to terminate him. He denied that he could recommend the leave or the promotion of any workman.
13. Admittedly the staff in a shift of the Roti Plant consists of a Shift Incharge, Associate Engineer, Sub-Engineer, Assistant Workers and helpers. On behalf of the respondent it was contended that the Assistant Bakers and Helpers were subordinate to an Associate Engineer. The idea appears ridiculous. The job of an Assistant Baker or his Helper has nothing to do with any Engineering work, and as such they could not be sub--ordinate an Associate Engineer. Mr. Nazar Muhammad (D. W.
2) an Assistant Baker was examined. He stated "that there are four categories of machines and on each machine one Assistant Baker is appointed". His duty is to start the machine and to clean it and to see that it remains functioning properly. He has nothing to do when there is any defect or default anywhere. The defaults are removed by the Associate/Sub-Engineers. No question of subordination arises, Mr. Muhammad Azam, Manager Technical of the Roti Corporation was examined as a witness. He said that the duties of an Associate Engineer were to supervise the operation of the plant to do repair and maintenance work. He also produced a document Exh. D-1.
According to him, it is the job discretion of an Associate Engineer. It shows that an Associate Engineer is the Incharge of operation of the plant and he has to supervise various types of work. It further says that he had to supervise the work of one Sub-Engineer, four Assistant Bakers and four Helpers and to recommend promotions and increments of his subordinate, i.e. Sub-Engineers, Assistant Bakers and Helpers and also report against them recommending disciplinary action if any to the Factory Manager. This document does not bear any number and date. Whereas all the other letters mentioned above bear flumes and dates. My opinion is that this document has been drafted very recently and the only purpose is to defend this case. No reliance can be placed on Exh.
D-1.
14. The evidence produced by the petitioner proved beyond any manner of doubt that he is a workman. In this connection reliance can be placed on a reported case Bashir A. Malik v. The Punjab Labour Court (Northern Zone), Lahore and 2 others (PLD 1973 Lah. 594). . In this case an employee designated as Engineer was held to be a workman. Accordingly the petitioner is held to, be a workman.
15. The next question relates to grievance notice. No grievance notice is necessary in a case of termination as is held in Crescent Sugar Mills v. Haji Muhammad (PLD 1976 Lah. 1176). This objection has no force.
16. On the last question the contention of the respondent was that an employer is competent to pass an order of termination on giving one month's notice or wages in lieu thereof in accordance with the provisions of Standing Order No. XII (1). The respondent has clearly ignored the provisions of clause 3 of this Standing Order. No order of termination can be passed unless it is in writing and it must explicitly state the reason for termination. No reason was stated in the case of the petitioner. H was a permanent workman. He was not liable to be terminated. Unless it is shown by the employer that he was terminated by way of retrenchment. In any other case an enquiry must be instituted because it would be a case of punishment. The order of termination is illegal.
17. For the above reasons the petition is accepted and the respondent is directed to re-instate the petitioner with back benefits.