Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HAMMAD FAROOQ TEXTILE MILLS LTD. VS Respondent: MUHAMMAD YAQOOB
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany Title: HAMMAD FAROOQ TEXTILE MILLS LTD. vs MUHAMMAD YAQOOB Case No.: Labour Appeals Nos.7 and 18 of 2003 Date of Judgment:2007-04-09 Reported As: 2007 PLC 472 Result: Order accordingly
JUDGMENT
JUDGMENT ' SARMAD JALAL OSMANY, The facts and law are common to both these appeals and hence they are being disposed of through this judgment. 2. Briefly stated the facts of the matter per the appellant/employee in L.A. No,18 of 2003 are that he was employed on a permanent basis by the Company as a Quality Checker since 1992 and had a clean record of service. As he had to his account annual leave of 30 days with full pay he applied for the same with effect from 22-2-1997 to 23-3-1997 since he wanted to take his ailing wife to his native town for treatment but the same was declined by the Company. He again applied for such leave w,e,f, 5-4-1997 to 3-5-1997 and handed over such application to his immediate superior Mr. Muhammad Farid who after keeping the same with him for some time returned it to the Employee. Thereafter the Employee decided to proceed to his native town for the treatment of his wife, as her condition had become critical. Simultaneously, he sent his leave application by registered post to the Company, which was also rejected without assigning any reason. The Company issued a show-cause notice to the Employee dated 5-5-1997 which was received by him on 9-5-1997 and to which he submitted an explanation. Thereafter, as the same was not acceptable to the Company a letter dated 13-5-1997 was issued to the Employee regarding the domestic enquiry against him which was received by him on 27-5-1997 and which directed him to appear for the purpose of enquiry on 20-5-1997. As the date of enquiry was over the Employee did not attend the same. However, the enquiry against the Employees was completed by the Company on 20-5-1997 ex parte as a result of which he was dismissed from service vide letter, dated 4-10-1997, whereupon he sent a grievance notice to the Company which was not accepted and hence he was constrained to file an application before the learned Labour Court for reinstatement with back-
---
## Page 2
benefit etc. The learned Labour Court vide impugned order 15-3-2002, partially granted the prayer of the Employee viz. Reinstatement with 50% back-benefits and hence this appeal praying for full back- benefits. 3. L.A. No,7 of 2003 has been filed by the Company against the Employee impugning the same order passed by the learned Labour Court wherein the facts per the Company are different. In this appeal the Company has maintained that in the First Leave Application the reason given by the Employee was urgent work which was declined due to exigencies of work. Thereafter, in the second leave application the same reason was given, however, without even waiting for the grant of leave, the Employee ceased to report for duty. As a result he was informed on 21-4-1997 that his leave application had been rejected and he should resume his duty immediately whereupon the Employee vide letter 29-4-1997 replied that he was unwell and would report for duty upon recovery. The Company did not accept this excuse and issue him with a show-cause notice on 5-5-1997 and thereafter on 13-5-1997 the notice of enquiry was issued to him whereby he was directed to appear before the Enquiry Officer along with his witnesses on 20-5-1997. As the Employee failed to participate in the enquiry the same was conducted exparte and as the charges levelled against him were established he was issued a letter of dismissal on 4-10-1997. Thereafter the Employee addressed a grievance notice to the Company and subsequently filed the application before the learned Labour Court. The Company has prayed that the impugned order reinstating the employee with 50% back-benefits be set aside. 4. Mr. Mehmood A. Ghani learned counsel for the Company has firstly submitted that the Employee was not a workman as he has admitted under cross-examination that Abdul Aziz weaver and Afzal Cooli used to assist him in checking of the both and he was not ,zonally working as a weaver since his main duty was to supervise and check the quality of the cloth. Similarly, he has also admitted that he was not a member of any trade union etc. The Company also led cogent evidence through its witnesses and produced Exhs.R/5, R/6 and R/7 to their affidavits in evidence which establishes the supervisory nature of the employee's duty but the' same were ignored by the learned Labour Court. Furthermore, learned counsel has submitted that the burden of proving that an employee was a workman lay upon him. Consequently, per learned counsel, as the employee had failed to do so and on the contrary had admitted that his duties were supervisory in nature it is clear that he was not a workman and hence could not move the learned Labour Court for his remedy. In support of his submission he has relied upon Zubair Ahmed v. Sindh Labour Appellate Tribunal PLD 1985 Kar. 760, National Bank of Pakistan v. Punjab Labour Court No,V 1993 SCMR 672, Security Papers Limited v. Sindh Labour Appellate Tribunal PLD 1988 SC 180, Zahid Hussain v. Hoechst Pakistan Limited 1989 PLC 309, Bashir Ahmed v Amin Textile Mills Ltd. 2003 PLC 1; Itehad Chemical v. Punjab Labour Appellate Tribunal 1990 PLC 227, Hotel Intercontinental v. Bashir A. Malik PLD 1986 SC 103 and Central Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal 1985 PC 511. Learned counsel has also submitted that merely because the employee was charged-sheeted and an inquiry was conducted against him under the Labour Laws does not mean that he automatically becomes a employee for which he has cited Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal 1984 PLC 1353 and General Manager, Packages Ltd. v. Punjab Labour Appellate Tribunal 1998 SCMR 1250. 5. Next learned counsel has submitted that oral arguments were submitted before the learned Labour Court by. Both the counsel on 7-11-2000 and the matter was reserved for orders on the same day. However, the learned Labour Court delivered the judgment on 15-3-2002 after a passage of more than 15 months which is contrary to the specific directions of the Honourable Supreme Court viz. That judgment is to be announced within a reasonable time after it had been reserved for this purpose. He has relied upon Muhammad Bakhsh v. The State 1989 SCMR 1473, Syed Iftikhar Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669 and unreported judgment in H.C.A, No,331 of 1999 where a Division Bench of this Court set aside the impugned order inter alia on
---
## Page 3
the ground that judgment had been pronounced after a delay of 9 months. Learned counsel has therefore, prayed accordingly. 6. Next, learned counsel has submitted that the grievance application filed before the learned Labour Court on 19-1-1998 is time-barred as it is beyond the period of 60 days from the service of the first grievance notice dated 6-8-1997 as prescribed under section 25-A(4) proviso of the IRO, 1969. In this respect, learned counsel has submitted that the cause of action to file the grievance application accrued to the employee on 6-8-1997 when he claimed reinstatement and hence he could not enhance limitation by sending his second grievance notice dated 10-12-1997. In support of this submission, he relied upon S.W.H. Jafri v. Muhammad Salim Shaikh 1979 PLC 431 and Messrs Pakistan Machine Tool Factory v. Sindh Labour Appellate Tribunal and others 1992 PLC 650. 7. Finally as regards the legal objections learned counsel has submitted that the employee never took any plea either in his grievance notice or the application before the learned Labour Court that his dismissal was in connection with any industrial dispute and nor did he examine any witness in this regard hence the learned Labour Court could not entertain the employee's application under section 25-A of the IRO. Learned counsel has relied upon Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Messrs Wah Industries Ltd. v. Punjab Labour Appellate Tribunal 1998 PLC I and Messrs Associated Consulting Engineers Ltd., Karachi v. Razi Ahmed Farooqui 1975 PLC 147. 8. On merits, learned counsel has submitted that the disciplinary action initiated against the employee was proper and in accordance with law as admittedly he remained absent from his duty without grant of any leave which is an act of misconduct in terms of Standing Order 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. For this proposition, he has relied upon Aijaz Ahmed Memon v. Muslim Commercial Bank 1985 PLC 994, Tariq Hussain v. Messrs Pakistan Railways 1997 PLC 736, Peetumal v. Messrs Thatta Cement Company Ltd. Makli 1991 PLC 853. 9. Learned counsel has also submitted that the employee has taken contradictory pleas regarding the compulsion which prompted him to proceed on leave without permission i,e, in his leave application form the reason cited by him is urgent work whereas in para.2 of his grievance application before the learned Labour Court the plea taken by him was the illness of his wife. Again when he was directed to report for duty by the Company, the employee took an altogether different plea that he himself was unwell. Consequently, per learned counsel, the employee having approached the learned Court with unclean hands does not deserve any relief. Again the employee has taken different positions as regards receipt of the letter of enquiry i,e,, in his grievance notice he claims that it was received by him on 27-5-1997 but in his cross-examination he says that this was on 28-5-1997. Per learned counsel once this plea was taken that the letter of enquiry dated 13-5-1997 was received by the employee on 27-5-1997 or 28-5-1997, the onus was upon him to establish late delivery viz., within Karachi which he has failed to discharge as no postman was examined for this purpose. Per learned counsel under the General Clauses. Act there is a presumption that a document sent through registered post is deemed to be delivered at the other end in the normal course of events and this could be at the . Maximum within two or three days. Learned counsel has relied upon Dawood Cotton Mills Ltd. v. Guftar Shah PLD 1981 SC 225 and Rashid Ahmad v. Messrs Friends Match Work PLD '1989 SC 503. Consequently, per learned counsel where the employee remains absent despite notice of the enquiry he only has himself to blame for which proposition he has relied upon: Jubilee Spinning and Weaving Mills Ltd. Karachi v. Bladar Khan 1975 PLC 24 and Syed Niaz Ali Nasri v. Mushtaq Textile Mills Ltd. 1980 PLC 610. 10. Next learned counsel has submitted that it is the consistent view of the superior Courts that the findings of the Enquiry Officer could not be ignored or set aside merely on the ground that a view contrary to the one taken by him was possible based upon the available evidence and material. He
---
## Page 4
has relied upon Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal 2000 PLC 274 and Messrs National Cement Industries Limited v. National Industries Relations Commission 1986 PLC 105. 11. Next per learned counsel for employee has admitted under cross-examination that after being dismissed from service he was engaged gainfully i,e, repair of motor vehicles etc. Which was the source of his livelihood and hence there could not be any question of back-benefits being granted to the employee. For this proposition learned counsel has relied upon:-- National Bank of Pakistan, Hyderabad v. The Sindh Labour Appellate Tribunal 1993 PLC 625, Syed Anwar Ali Shah v. The Agricultural Development Bank of Pakistan NLR 1999 Lah. 127, Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal 1991 SCMR 2087, Pakistan Automobile. Corporation Ltd. v. Mansoorul Haq 2004 SCMR 1308, Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation 2002 PLC (C.S.) 1083 and Civil Applications Nos.59 to 70-Q of 2006, decided by the Honourable Supreme Court of Pakistan. 12. Next learned counsel has submitted that the quantum of punishment is the sole discretion of the employer, which is to be exercised keeping in view the facts and circumstances of the case. In the present matter, it has been established that the employee remained absent without leave and also willfully failed to participate in the enquiry which is an act of gross misconduct and hence the punishment of dismissal is justified. For this proposition learned counsel has relied upon: Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981. At the most, if the conclusion was reached that the employee did not receive the letter of enquiry in time to participate in the same, he would only be entitled to a fresh enquiry and not reinstatement along with back-benefits as has been ordered by the learned Labour Court. For this proposition he has relied upon Islamabad Club v. Punjab Labour Court No,2 PLD 1980 SC 307, Muslim Commercial Bank Ltd. v. Mahmood Ahmed Butt 1997 PLC 550, Mahmood Shah v. Dawood Cotton Mills Ltd. And Sindh Labour Appellate Tribunal 1982 PLC 365 and The Punjab Provincial Cooperative Bank v. Muhammad Salim Butt PLD 1996 SC 596. 13. Finally, per learned counsel, during the pendency of this appeal the employee has moved an application that upon' reaching the age of superannuation he stood retired from service on 3-1- 2003. Hence, there cannot be any question of reinstatement and if at all only back-benefits can be granted to the employee. 14. For all the foregoing reasons learned counsel has prayed that the appeal of the Company be allowed and that of the employee dismissed. 15. In reply Mr. Muhammad Shafiq Qureshi has firstly submitted regarding the issue whether or not the employee was a workman that per settled law it is the nature of the duties performed by the employee which is to be considered and not his designation. In para.3 of his affidavit in evidence the employee has stated that he was doing manual job viz. Checking the quality of the cloth produced by other workmen and pointing out defects if any to his supervisor. Per learned counsel under cross-examination the employee has not been shaken. His only admission was that he used to check/supervise the quality of the cloth, which does not mean that he was supervising any worker. In fact no question was asked of the employee whether he was supervising the work of others. Similarly, in the affidavit in evidence filed on behalf of the Company it has been stated in para.7 thereof that the employee was responsible to check the quality of the cloth and weavers working under him and also that he used to report directly to the weaving master. Under cross- examination the Company's witness has admitted that the employee's duties were to point out defects in the cloth to the 'weaving master who thereafter got them rectified. Hence per learned counsel it cannot be said that the emplotheyee was working in any supervisory capacity. Additionally, per the judgment of the learned Labour Court in Appeal No,1 of 1999 (from the orders of the Payment of Wages Authority) the employee has been declared to be a workman. Hence this issue cannot be reopened as it has attained finality being a judgment in personem. Learned
---
## Page 5
counsel relied upon Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani PLJ 1975 Kar. 25, Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani 1979 SCMR 304, Abdul Rasheed v. Chairman Labour Appellate' Tribunal 1997 PLC 34, Central Cotton Mills v. Abdul Aziz 1983 PLC 1010, Bashir Ahmed v. Amin Textile Mills Ltd. 2003 PLC 1, Abdul Razzaque v. Messrs Ihsan Sons Ltd, 1992 SCMR 505, Pir Bakhsh v.. Chairman Allotment Committee PLD 1987 SC 145 and Shahzar Khan v. Sindh Labour Court No,IV 1977 SCMR 103. 16. Regarding the next objection taken by Mr. Mehmood Abdul Ghani, as to the belated delivery of the judgment, Mr. Muhammad Shafiq Qureshi has submitted that, according to the diary sheet of the learned Labour Court, arguments were firstly heard on 4-11-2000 and 7-11-2000 on which date the matter was reserved for judgment to the announced on 30-11-2000. Thereafter, on that date the matter was again adjourned to 14-12-2000 for the same purpose. On 14-12-2000 the matter was posted to 4-1-2001 for announcement of judgment but oft that day it was ordered that fresh arguments should be addressed by both learned counsel. Finally, these arguments were heard on 23-1-2002 and the judgment delivered on 15-3-2002. In view of these circumstances, learned counsel has submitted that judgment was delivered within two months of the date when arguments were heard, which is a reasonable time and in accordance with the directions of the Honourable Supreme Court. 17. Regarding the grievance application being time-barred, learned counsel has submitted that the first grievance notice was served on 6-8-1997 upon the Company by the employee on the basis that he was not being allowed to join his duty and not against his removal from service which was done later on i,e, vide letter dated 9-10-1997. Per learned counsel the Company itself has admitted as much since in para.9 of its reply to the employee's application before the Labour Court where the stand taken was that no reply was sent to this grievance notice, as it was premature. Accordingly, when the employee was dismissed on 4-10-1997 the second notice was sent on 10-12- d997 and as this also was not responded to by the Company the learned Labour Court was moved on 19-1-1998. Hence per learned counsel since under section 25-A of the IRO notice is to be given within three months of the cause of action it was within time and so also the Labour Court was moved within two and a half months of service of the dismissal notice dated 4-10-1997 which was done by the employee. Consequently, the application before the learned Labour Court was within time. 18. On merits, learned counsel has submitted that admittedly the employee was entitled to 30 days annual leave and hence had applied for the same on 13-2-1997 which was refused by the weaving master who was his immediate superior. Again, in April, 1997 he had applied for such leave but no action was taken upon the same accordingly he went to his native town on 5-4-1997. Thereafter he received a letter on 21-4-1997 from the Company asking him to rejoin his duty to which he replied on 29-4-1997 that he would do so when he became well. However, then a show-cause notice dated 5-5-1997 was received by the employee to which he replied by letter dated 10-5-1997 explaining that he had remained absent due to his medical condition as per attached certificate. Then he received a letter dated 13-5-1997 on 27-5-1997 asking him to appear before the domestic enquiry on 20-5-1997. Hence, as the enquiry was already over the employee did not appear before the Enquiry Officer and finally he reported for duty on 23-6-1997 when he was not allowed to do so by the Company. Thereafter, he received the letter of dismissal against which he sent a grievance notice to the Company, which remained unresponded and hence he had no remedy except to move the learned Labour Court. Per learned counsel therefore, in the first instance the charge- sheet itself is time-barred as the cause of action for issuance of the same arose to the Company on 5-4-1997 from which date the employee remained absent and the charge was issued on 5-5- 1997 beyond the period of one month prescribed under Order 15(4) of the Standing Orders Ordinance. Secondly, learned counsel has submitted that annual leave is the right of the employee
---
## Page 6
and in case of refusal then the reasons are to be given in writing within the prescribed period vide Standing Order No,8(2). Admittedly, the Company gave no reason to refuse such leave to the employee. Next learned counsel has submitted that the alleged offence does not fall within Standing Order 15(3)(e) of the Ordinance which defines misconduct as there is no allegation that the employee remained absent without leave on any other occasion. In support of this submission, learned counsel has relied upon Obaidullah v. Messrs Ulbrights (Pakistan) Ltd. 1985 PLC 665. 19. Next, learned counsel has submitted that per Standing Order 15(4) of the Ordinance an enquiry is to be held prior to the dismissal however, as per the record it has been established that the letter regarding holding of such enquiry which was fixed on 20-5-1997 was itself posted on 24-5-1997 per the envelope produced by the employee as Exh.A/9. As opposed to this piece of evidence nothing was produced by the Company to establish as to when the said letter was posted although its witness undertook to produce the Registered A.D. Slip etc. In support of this submission, he relied upon Hafeez Shah v. U.B.L. 2001 SCMR 931 and Crescent Jute Products Ltd. v. Muhammad Yaqub PLD 1978 SC 207. 20. As regards the issue of back-benefits, learned counsel has submitted that per the worker he remained unemployed throughout which stand could not be shattered by the Company through cross-examination. In fact it also did not lead any cogent evidence to prove that the employee was gainfully employed the burden of which per settled law was upon the Company where once the worker came out with the plea that he was unemployed. In support of this submission, learned counsel has relied upon National Bank of Pakistan v. Sindh Labour Appellate Tribunal Karachi 1992 PLC 94 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1992 PLC 415. 21. As regards the pendency of an industrial dispute, learned counsel has submitted that Standing Order 12(3) of the Ordinance itself clothes the learned Labour Court with jurisdiction to adjudicate a grievance application filed by the workman. In this regard, learned counsel has relied upon Messrs Miliat Tractors Ltd. v. Punjab Labour Court No,3 1996 PLC 300, Qayyum Nawaz v. N.-W.F.P. Small industries Development Board, Peshawar 2000 PLC 215, Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub PLD 1978 SC 207 and Messrs Fauji Sugar Mills Khoski District Badin v. Ali Nawaz 1997 PLC 451. 22. I have heard both the learned counsel and my conclusions are as follows: 23. Regarding the first legal objection taken by Mr. Mehmood Abdul Ghani as to the status of the employee, it would be seen that per Standing Order 2(i) of the Ordinance a workman has been defined to mean any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. In this connection, the law is very well- settled viz. The test for determining the question whether an employee is a workman or not would be the nature of the work being performed by him. If it is manual or clerical (whether, skill or unskilled) then the employee would come within the definition of the term "workman" per Standing Order 2(i). Additionally, it would also have to be examined whether manual or clerical work is incidental to the main work or a substantial part of it is being performed by the employee. Hence, where a person employed in a supervisory capacity does some manual or clerical work incidentally, he would not come within the definition of a worker and vice versa. In this respect reference can be made to General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik PLD 1986 SC 103, Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar 1993 SCMR 511 and Granulars (Pvt.) Limited v. Muhammad Afzal 2002 PLC 1. Upon examination of the affidavit in evidence filed by the employee it would be seen that in para.3 of the same he has asserted that the duties being performed by him were manual in nature viz. He used to open the cloth in the running machine and check its quality in accordance with specifications. If any defects were found in the same he would bring it to the attention of the Fitter/Incharge whereafter such defects were removed. He has further stated that he was not supervising any other worker but he himself was
---
## Page 7
working under the supervision and control of Weaving Incharge namely Muhammad Farid. Further in para.4 of his affidavit the employee has submitted that he was employed in the workmen category and always treated as such by the Company which would be reflected from his pay, leave, bonus and Eid clothes etc. As admissible to other workmen of the Company. Under cross- examination he has admitted that he was initially appointed a quality checker of the clothe manufactured by the Company, per his appointment letter Exh.3/A. So also Abdul Aziz Weaver and Afzal Coolie used to assist him during the checking of the cloth. In the affidavit in evidence filed by one Muhammad Fayyaz on behalf of the Company it is stated that the employee was in fact as supervisor and hence was responsible for supervising the quality of the cloth produced by the Company…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.