1992PLC1

[Labour Appellate Tribunal Punjab]

Present: Sardar Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal

PROJECT DIRECTOR, KARKHANA ALAAT-E-ZARI, AGRICULTURAL
DEPARTMENT, GOVERNMENT OF PUNJAB, BAHAWALPUR

versus

ABDUL AZIZ

Appeals Nos. 265 and 267 of 1991, decided on 24th July, 1991.

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 2(xxviii)---"Workman"---Contention of employer was that employee being storekeeper in
establishment, was not covered by definition of "workman"--Held, in absence of any evidence
that wages of employee per month were in excess of Rs.800, he would not stand ousted from
definition of "workman"--Court below rightly found employee to be workman in circumstances.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance
(VI of 1968)---

----S. 2(i)---Workman---Contention on the part of employer was that employee being storekeeper
in establishment, was not a workman---Clerical duty of making entries in relevant register of
articles brought and kept in store and which were issued from store, admittedly was being
performed by employee as there was no evidence that any clerk was given to him to do such
work--Helpers working under employee who admittedly were illiterate persons could perform
manual duty of bringing articles in store and carrying away after issuance thereof, .but clerical
duties could be performed by literate person like employee in the case---Employee, thus was
covered by definition of "workman" as given in Standing Orders Ordinance, 1968.

(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance
(VI of 1968)---

----Ss. 1(4)---Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A & 38--West Pakistan
Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Applicability of---
Employer had raised objection at appellate stage that his `Karkhana' neither was an industrial
establishment nor commercial establishment and as such Standing Orders Ordinance, 1968, was
not applicable to the case---Such objection which required evidence having not been raised
earlier by employer in his written statement, could not be entertained at appellate stage---Legal
point touching jurisdiction of Court not requiting evidence, could be raised at any stage, but a
point involving question of fact, which could be proved by some evidence, could be raised in
pleading and not at appellate stage.

(d) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Grievance petition ---Impleading of party---Order of dismissal against workman
admittedly was passed by Project Director of employer prior to taking over `Karkhana' of
employer by Government---Since at the time the cause of grievance arose to employee,
Government had not come into picture, Government was neither proper nor necessary party---
Contention of employer that grievance petition filed by employee without impleading
Government which after taking over `Karkhana' of employer had become necessary party, was
not maintainable, was repelled in circumstances.



(e) Industrial dispute


----Dismissal from service---Reinstatement---Taking over of establishment by Government---
Effect---When an establishment is taken over by another body, labour of establishment goes with
work and no question of creating new posts would arise and permanent employees of taken over
establishment, could not be terminated without any just cause---Newcomer or body taking over
establishment could not only take assets, but would take liabilities also---Since Government after
taking over Karkhana of employer of which employee was a permanent employee, was running
that Karkhana, employee had a right to be reinstated in service.


(f) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A(6) & (7)---General Clauses Act (X of 1897), S. 6---Grievance petition---
Maintainability of---Workman had brought grievance petition within two months of leis removal
from service without serving a grievance notice--Subsection (6) of section 25-A of Ordinance
according to which grievance petition was brought by workman, subsequently having been
omitted, it was contended on the part of employer the grievance petition of workman could not
succeed---Contention was repelled in view of the fact that pending cases had been -saved by S. 6
of General Clause Act, 1897---Grievance petition brought under subsection (6) of section 25-A,
Industrial Relations Ordinance, 1969, would continue for being finally decided, irrespective of
omission of that subsection.

(g) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance
(VI of 1968)---

----S.O. 15(4)---Notice of enquiry---Natural justice, violation of---Notice of enquiry was served
on workman only one day before enquiry was to be held against workman and in that notice
workman was asked to produce evidence--Since time was very short, workman decided not to
participate in inquiry which remained ex parte against workman---Time being very short to
prepare case and to produce defence, workman was prejudiced by ex parte enquiry and thus was
condemned unheard.

(h) Industrial Relations Ordinance (XXIII of 1969)--

----S 51---Back benefits---Entitlement to---Workman after dismissal from service, admittedly
had taken up service with another Department---Workman had given difference of pay in his
statement produced on record which he was getting from his employer and after his termination
from other Department where he worked during his termination period---Workman after his
reinstatement was entitled to such difference of pay.

Masud Ashraf Sheikh and Muhammad Akram for Appellant.

M. Shamsher Iqbal Chughtai for Respondent.

Date of hearing: 17th July, 1991.


JUDGMENT


The appeals captioned above arise from the decision dated 8-4-1991 recorded by the learned
Presiding Officer, Punjab Labour Court No. 6, Bahawalpur, whereby accepting the grievance
petition of Abdul Aziz (hereinafter called as the respondent) he was directed to be reinstated in
service without back benefits. The Project Director, Karkhana Alaat-e-Zari, Bahawalpur
(hereinafter described as the appellant) has challenged the direction of reinstatement, whereas the
respondent has claimed back benefits in his appeal. Since both the appeals arise from the same
decision they are being disposed of together through this single judgment.

2. The respondent was a storekeeper. The allegations made against the respondent as contained
in the charge-sheet, copy of which is Exh. P.9, were that he used to instigate the workers to go on
illegal strike, that he used to develop ill-will between the workers so that they might fall out with
each other, that often he was late, that he did not discharge his duties according to the
instructions, that his work with regard to accounts was not satisfactory, that he was not
submitting fortnightly sales statement for six months, which displayed that he was not taking
interest in the work, that his behaviour with the workers and the staff was improper, and that he
had damaged electric meter installed in the quarter. Ex parte inquiry was held, which culminated
in the dismissal of the respondent from service.

3. Learned counsel for the appellant has argued that the respondent as storekeeper was not
covered by the definition of workman, that Karkhana Alaat-e-Zari was neither an industrial
establishment nor a commercial establishment, and that Karkhana Alaat-e-Zari was taken over
by the Punjab Government, therefore, the said Government was a necessary party but it was not
impleaded as such.

4. So far as the point whether the respondent was covered by the definition of workman is
concerned, no doubt the respondent admitted that there were assistant storekeepers and helpers
under him and RW-2 deposed to that effect. but according to the definition of workman given in
section 2(xxviii) of the Industrial Relations Ordinance, 1969, even a supervisor is covered by the
definition, unless it is proved that his wages per month were in excess of Rs.800. The relevant
portion of the definition reads as, "Worker and workman means any person not falling within the
definition of employer who is employed (including employment as supervisor or an apprentice)
in an establishment or industry " It is apparent that even a supervisor, if he is not covered by the
definition of employer, is a workman. Clause (b) is an exception to the definition which says,
"But it does not include any person-- (b) who being employed in a supervisory capacity draws
wages exceeding Rs.800 per mensem". Since there is no evidence about the wages of the
respondent, he does not stand ousted under exception (b) from the definition of workman. The
learned lower Court, therefore, rightly held that the respondent was a workman. In the written
statement it has not been made clear whether the respondent is not a workman according to the
definition given in the Industrial Relations Ordinance, 1969 or in the Standing Orders Ordinance,
1968. Since at the time the respondent was dismissed from service, Karkhana Alaat-e-Zari had
not yet been taken over by the Punjab Government, Standing Orders Ordinance, 1968 was
applicable to it. Making entries in the relevant register of the articles coming in the store and the
ones which are issued from the store, can be the duty of a storekeeper, in the absence of any
evidence that some other person had been doing this clerical work. There is no evidence that any
clerk was given to the respondent. So the clerical duties were being performed by him. No
,doubt, there were helpers under him but there is no evidence that they were illiterate persons and
had been doing clerical work. Since the articles are brought and kept in the store and are issued
away from there, therefore, some person is needed to carry the articles at the time they are
brought to the store and at the time they are issued. The helpers, therefore, may be performing
manual duty but so far as clerical duties are concerned, the same can be performed by a literate
person. Thus the respondent is covered by the definition of workman given in the Standing
Orders Ordinance, 1968 also.

5. Suffice it to say with regard to the argument of the learned counsel for the appellant to the
affect that Karkhana Alaat-e-Zari is neither an industrial establishment nor a commercial
establishment, that no such objection was taken in the written statement. Learned counsel says
that since this question touches the jurisdiction of the Court, it can be raised at the appellate stage
as well. A legal point which does not require evidence touching the jurisdiction of the Court may
be raised at any stage, but a point involving a question of fact, which can be proved by some
evidence, can be raised only in the pleading, and not at the appellate stage. The point whether
Karkhana Alaat-e-Zari is or is C not an industrial or commercial establishment requires evidence
and thus cannot be entertained at the appellate stage catching the respondent unaware.

6. As mentioned above, it has been argued by the learned counsel for the appellant that as at the
time the written statement was filed Karkhana Alaat-eZari was not being controlled by the
Project Director but was taken over by the Punjab Government, therefore, it was necessary for
the respondent to implead the Punjab Government and in the absence of the said party, the
petition was not maintainable. On the face of it the argument has no force. This is not the D case
of the appellant that at the time dismissal order was passed against the respondent Karkhana
Alaat-e-Zari ryas being run by the Government, rather it is apparent from the order of dismissal
that it was passed by the Project Director. Since at the time the cause of grievance arose to the
respondent the Punjab Government had not come into the picture, it was neither a proper nor a
necessary party.

7. It has also been argued that after Karkhana Alaat-e-Zari was taken over by the Government,
new posts were created and the employees were newly appointed, therefore, the respondent
could not be ordered to be reinstated in service. When an establishment is taken over by another
body, the labour goes with the work and no question of creation of new posts arises. New comer
can not only take the assets but take the liabilities also. Permanent employees cannot be
terminated without any just cause. Of course if the work for which they were employed comes to
an end and the employer decides not to continue the same, the services of such employees may
be terminated but E this is not the case of the appellant that Karkhana Alaat-e-Zari was closed,
but rather as noticed above, the case of the appellant is that it was taken over by the Government.
Since the Government is running Karkhana Alaat-e-Zari, of which the respondent was a
permanent employee, he has a right to be reinstated in service. This is true that the learned lower
Court has not recorded finding on the point, but since the learned counsel for the appellant has
been heard at length and he has not been able to satisfy, the mere fact that the learned lower
Court did not record finding is not sufficient to set aside the impugned decision of the learned
lower Court.

8. The other point argued by the learned counsel is that in Exh. R-8 which is a proforma for
appointment, the respondent urged while applying for service to G.T.S. Multan that he had
resigned the post with Karkhana Alaat-eZari, he had no right of reinstatement. This is true that a
person who admits that he has resigned cannot ask for reinstatement but since the case of the
appellant is not that the respondent had in reality resigned and since this is an admitted fact that
on the ground of certain allegations the respondent was dismissed from service, he was entitled
to challenge the order. It appears that he did not mention in proforma Exh.P.8 that he was a
dismissed employee thinking that if he had done so, he would not be taken in service by the
G.T.S.

9. The other argument of the learned counsel for getting the grievance petition of the respondent
dismissed is that subsection (6) was omitted from section 25-A of the Industrial Relations
Ordinance, 1969 and at that time section 7 was not existing and was inserted afterwards,
therefore, the grievance petition of the respondent could not proceed. The argument has no force.
This is true that subsection (6), according to which, if within two months of the termination of
service the grievance petition was brought, it was. not necessary to serve a grievance notice and
the grievance petition could be brought directly, but after the deletion of subsection (6) the case
could not be dismissed, because according to section 6 of the General Clauses Act, the pending
cases are saved. Clause (b) of section 6 of the General Clauses Act applies, which reads as
under:-

'The repeal shall not

(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered there under"

Clause (c) of section 6 is also attracted which reads as, "(c) any right, privilege, obligation or
liability acquired, accrued or incurred under any enactment so repealed". According to clause
(b), the repeal of subsection (6) of section 25-A cannot adversely affect the petitions brought
under the said provision and they would continue and be decided on merits. According to clause
(c), the respondent got a right under the repealed subsection (6) to bring grievance petition within
two months of the removal from service without serving a grievance notice. He had brought the
grievance petition under subsection (6) and thus it could continue for being finally decided,
irrespective of the fact that subsection (6) had been repealed.

10. It has been argued that the respondent was duly served with a notice of inquiry which was
held on 20-2-1975, therefore, on account of his absence ex parte inquiry was rightly held. This is
true that he had been informed that the inquiry would be held on 20-2-1975 and he was asked to
produce evidence but the time was very short during which he could not prepare the case to
defend himself against the prosecution and to produce his defence. The notice was served on 19-
2-1975 and the inquiry was to be held just on the following day. It appears that since
unreasonably the time was very short, he decided not to f participate in the inquiry. He was
prejudiced by ex parte inquiry and thus was condemned unheard.

11. So far as back benefits are concerned, it has been argued that according to the respondent's
own showing he was employed with PRTC and, therefore, he was rightly disallowed back
benefits. This is true that after the respondent was dismissed from service, he had taken up
service with PRTC but he has given the difference of his pay in his statement prepared by him
which is Exh. P-18. He was entitled to the difference of pay.

12. As a result of the observations made above, the appeal of the appellant fails and is dismissed.
The respondent is entitled to the difference of the emoluments which he was getting from the
appellant and after 'his termination from the G.T.S. and to his extent his appeal is accepted and
the impugned decision is modified.

H.B.T./740/Lb.P Order accordingly.