SETHI STRAW BOARD MILLS LTD. vs PUNJAB LABOUR COURT No, 3, LYALLPUR

' The employer has, by this petition under Article 199 of the Constitution, challenged the decision of the Junior Labour Court dated 19-1-1974, affirmed on appeal by the Labour Court on 30-4-1974, directing the re-instatement of respondent No, 3, its employee, with back benefits.

2. The facts of the case are the Mr. Munawar Ahmad Javed respondent was employed as a Chargeman by the petitioner on 25.3-1968 and was promoted as a Shift Chemist on 1-3-1970. He was entrusted on 1-8.1972 with powers to grant and reject leave applications of the workers under him, was also authorised to charge-sheet, call for explanation and discharge workers and was made wholly and solely incharge of his section in his shift. It was made clear in the same order that he did not fall within the definition of workman as contained in section 2, clause (iii) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. His services were, however, terminated as no longer required from 28-9-1973 and he was paid his dues. He thereafter instituted an application under section 25-A within the month of the termination order and his termination of service was held to be not in accordance with law applicable to a worker. The appeal of the petitioner also failed. Hence this constutitonal petition.

3. The petitioner has mainly taken up three grounds for challenging the order passed by the Labour Court. Firstly, it has been urged that a grievance notice to the employer was necessary under section 25-A of the Industrial Relations Ordinance and the respondent having never served such a notice the petition itself was not competent before the Junior Labour Court. Secondly, it was contended that the respondent did not fall within the definition of a workman for the purposes of Industrial Relations Ordinance or the Standing Order Ordinance because he was the hiring and the firing authority and entrusted with the entire supervisory control over his establishment. Thirdly, it has been submitted that he is estopped from making any such claim as throughout the relevant period he enjoyed from the employer the terms and conditions and the benefits accruing to an officer and while leaving the employment on termination of service gave a satisfaction note with regard to his claims and obligations. He was, therefore, stopped by his conduct from making such a claim.

4. The first ground with regard to absence of notice of grievance under section 25-A in a case of termination, has been dealt with by me in W. P. No, 1413/75 (Cresent Sugar Mills Ltd. v. Haji Muhammad etc.), decided on 17-5-1976. For the reasons given therein I would hold that in case of termination of service governed by subsection (6) of section 25-A in which category the case of the respondent fell, such a notice of grievance was not necessary.

5. The main ground taken up by the employer for resisting the claim of the respondent was that in view of the supervisory and managerial responsibilities entrusted to the respondent, he fell within the definition of employer and was not required to perform the duties which could make him a workman. For the purpose of establishing this ground reliance has been placed in particular on two documents, the promotion of the respondent ordered on 3-4-1970 which indicated his responsibilities as Shift Chemist. It was "be fully responsible independently for the entire work in the Pulp House its Management, supervision and control of the establishment in his shift." Another document is the delegation order (Annex. C), dated 1-8-1972, whereby le was entrusted with the additional duty of maintaining discipline in his shift and hiring and firing the labour employed. In the light of the submission made by the petitioner the stricter definition of 'employer" and a "workman" contained in the Standing Order Ordinance, has to be first examined. Empolyer has been defined in clause (c) of section 2 of the Standing Order Ordinance to read as follows:- "(c) 'employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies and incl tides- (0 in a factory any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934) as manager of the factory;

(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government, the authority appointed by such Government in this behalf, or where no such authority is so appointed, the Head of the Department;

(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment."

' The only clause in the definition which could be utilised by the petitioner is clause (iii). The question is whether the respondent was made responsible to the owner for the supervision and control of such establishment. Examining the concept of Industrial or Commercial Establishment, it is clear that the establishment as a whole is in view and not any friction or part of it. It is manifest from the documents relied upon by the petitioner that the respondent was made responsible not for the whole establishment, not even for a section of the establishment but only of the shift of which he was incharge at a given time. This would, therefore, not make him incharge of the establishment as such. What is more, the responsibility of the respondent was admittedly not directly to the owner but through a chain of officers and these were Mills Manager, Deputy Mills Manager and Chief Chemist. The responsibility was not immediate and direct but remote and the respondent would not, on this definition, fall in the category of employers.

6. The workman has been defined in clause (i) of section 2 to mean as follows:- "Workman means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work fcr hire or reward."

' A concurrent finding of fact has been recorded on the basis of evidence on record by the two Labour Courts that the respondent fell within the definition of workman. In order to repudiate this finding of fact the documents already referred to are relied upon. The respondent was admittedly recruited as a Chargeman and his duties, as listed in (Annexure. A) were "attend to and work on all the plants and machinery in the Pulp House and operate on the machines under the guidance and instructions of your head of the department, Chief Chemist/Mill Manager." and also to "attend to all the plants and machinery installed in the Mills whenever and wherever required under the guiding instructions and good orders of your superiors." As a Chargeman, it is clear that he had manual duties to perform. While making him Shift Chemist, the responsibilities were to be incharge of the entire work in the Pulp House, its Management, supervision and control of the establishment in his shift. His Head of the Department remained the Chief Chemist and his subordination to the Mill Manager was there. The further evidence about the nature of the duties performed by kim finds place in the order of the Junior Labour Court in this following words:- "His duty was to check the cooking of toorr and to get its batch out and to refine it. Besides, he also checked its acidity and alkality. He used to do this task with the help of the chemicals with his own hands He also used to test the quality and the strength of try-sodium phosphate and sodium allominiate. While testing it he used to see the moisture, insoluble matters, total acidity and sodium. Sulphate."

' It is clear from this resume of the material before the Labour Courts that it could reasonably be urged and held that the respondent was doing manual work as a Shift Chemist and that whatever supervisory and managerial control had been delegated to him, it was not an essential part of his duty as Shift Chemist but that it was an additional duty conferred on him subsequently by delegation order and this was an addition to his duties as Shift Chemist. Therefore, if the respondent fell within the definition of a workman as a Shift Chemist, the conferment on him of certain supervisory and managerial powers would not divest him of the character of being a workman. I find that such a finding of fact recorded by the Labour Courts is not in view of the material on record, open to interference in the Constitutional, jurisdiction of this Court.

7. Another argument advanced by the petitioner is that the respondent had, by his own conduct, stopped himself from filing the claim. In this respect, it is contended that the respondent had throughout enjoyed the benefits of an officer in matters of leave, privileges, allowances and other facilities and had allowed himself to be treated as such and he could not take recourse to the law applicable to the worker. Secondly, it is contended that having himself finally settled his accounts with the employer and being satisfied he had no cause or grievance at all to take to the Labour Court.

8. So far as the first ground is concerned, there cannot be any estoppel against statute. The employer is not prevented from conferring on a workman nor is the workman prevented from receiving more than what a workman is entitled to under the law. By treating the respondent as an officer when he was not one, no rights accrued in favour of the petitioner nor was there any statutory estoppel against the respondent from enforcing his legal status and rights as such. By agreement the provisions of the statute could not be overridden.

9. It is disputed whether satisfaction recorded by the respondent was total, complete or only partial and incomplete. This being a question of fact will not be gone into and even if a workman receives what is due to him, he can still lay a claim for what was due to him but has not been paid. In other words, part acceptance of the entitlement does not imply surrender or abandonment of that part which has not been received.

10. I find that in the circumstances of the case the order of the Labour Courts is not open to interference and the petition is dismissed. No order is. However, made with regard to costs.