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

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-e Zari 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-e Zari, 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.