1994 PLP 663 (PLC(CS))

3. On 31‑12‑1990 they were transferred from Ampules Finishing Department to Vial Finishing Department. It appears that word had gone round, and when they were given the letter containing transfer orders they had declined to accept the same. It is alleged that on this refusal the respondents had got the order put on the Factory's Notice Board and had sent registered letters at their home addresses. None of the two, however, reported on duty. Instead there were long‑drawn meetings between the CBA and the Management on the New Year's day and by the evening the situation had so deteriorated that there was a "Gherao" of the Office of the Management Staff and even the female members of the staff had not been allowed to move out. The Labour Department, in the result, had to be contacted and Jehangir Azar, the Joint Director of Labour had turned up at about 6‑30 P.M. when normalcy was restored.

4. On account of this recalcitrant behaviour of the petitioners for days together show‑cause notices were issued on 3‑1‑1991 which were replied to. Thereafter, letters of enquiry were issued. Sirajuddin was appointed as Enquiry Officer but as he had to appear as a witness in a labour dispute against the CBA, Mussarrat Ali was appointed in his place. In the enquiry proceedings Nizamuddin, Najamul Zia and Qamaruddin were examined and the statements of the petitioners also were recorded. They did not produce any defence witnesses:

5. The Enquiry Officer, in separate proceedings, found them guilty of the charge of misconduct. The petitioners came to be dismissed on 7‑2‑1991. They had served grievance notices and later filed the grievance petitions.

6. The respondents in their Reply Statement inter alia maintained that the petitions were not maintainable as the petitioners were holding the posts of Foreman, which was supervisory in nature. Otherwise too the charges of misconduct stood clearly made out against them.

7. The petitioners were their own witnesses. S.HA. Jazbi, the Notified Manager of the Factory, Mussarrat Ali, the Enquiry Officer and Jahangir Azar the Joint Director, Labour were examined on behalf of the respondents.

8. The Labour Court found that both the petitioners were not workmen and misconduct on their part stood established. It, therefore, dismissed the petitions resulting in these appeals.

9. Given that Nawab Khan was working as a Senior Foreman and Haseebullah as a Foreman, the question which arises, therefore, what status they enjoyed in the respondent‑Company? If they are found not to be workmen they will be automatically out of Court.

10. It was held in the case of Karachi Shipyard and Engineering Works Ltd. v. Abdul Ghaffar and others 1993 SCMR 511, that a person working as Assistant Foreman was engaged on duties, which would be supervisory in nature. In Workers of Bata Shoe Company v. Bata Shoe Company Limited 1971 PLC 1 it was held by the Supreme Court that the job of a Foreman is to supervise the work of his staff and to control his work. The mere fact that he had to do some thing with his own hand by way of checking or testing the work done by other worker will not make his work manual within the meaning of abovementioned definition.

11. It is a trite proposition of law that the status of a worker is determined by the nature of his duties and not by his designation. Looking from that angle, we find that Haseebullah stops short by saying in his affidavit that the nature of his duties was entirely skilled and manual and he had neither supervisory function nor any supervisory, duty. Having said this precious little be branches of to the fact that he was a Member of CBA Union and that was to the knowledge of the respondent, as his monthly membership fee of the Union was being deducted from his salary under the check off system. Similarly Nawab Khan mentions his duties in para. 14 of his affidavit as follows:‑‑ "That I say that the nature of my duty was entirely skilled and manual and I had neither any supervisory function nor any supervisory duty." There is nothing beyond this even orally' not to say anything by way of documentary evidence on their behalf.

12. The mere fact that they continued on as member of the Union by itself would not be enough to hold them as workmen. It was so held in the case of F.M.L. (Pak.) Ltd. v. Syed Anwar Ali and others 1985 PLC 978 which is a decision from this Tribunal. Support was sought therein from a judgment of Division Bench of Sindh High Court, Karachi Bench reported in 1984 PLC 1353 in which it was observed: "If the petitioner was not a workman and not entitled to relief on account of dismissal the mere fact that he had been treated as a workman by respondent No. 3 could not convert his status of non ?workman into a workman."

13. The burden to establish their plea was on the appellants as held in Abdul Razzaq v. M/s. Ihsan Sons Ltd. 1992 SCMR 505 and Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal and others 1993 SCMR 1370 and it cannot even remotely be said that the same has been shifted or discharged. I am, therefore, clearly of the opinion that they were not workmen and this is enough to dispose of the appeals.

14. It is abundantly borne on the record that in the wake of the order of transfer a ferment had been created, and on the showing of Nawab Khan himself, on the 1st January he was in touch with Union and there were meetings. Even Haseebullah in his reply to the show cause mentions that the dispute because of the transfer was on between the Union and the Management. He further goes on to say that the right of employer to order transfer was not unfettered.

15. There is no reason, in the circumstances of the case, to doubt that the letters which were given to the appellants had been refused by them. There is also evidence that the same had been sent by registered post and there were notices put on the Notice Board. The happenings within the factory area on the following day mentioned in detail by the witness in the Enquiry and also before the Labour Court, find support from Jahangir Azar, who was the Joint Director, Labour Department. He has also stated that the ladies were not permitted to go and were encircled by Union workers. He specifically mentions the presence of the two appellants.

16. The domestic inquiry was held in a serenett atmosphere. All pages of the proceedings were initialed by the appellants and their co‑worker. There is no complaint of any gagging during the cross‑examination, or any display of partisanship on the part of the Enquiry Officer.

17. There is also nothing to show that any mala fide was, involved. It was just a matter of transfer from one Wing of the factory to the other. There was no question of any fall from grace on that account. The agitation that followed was hardly called for. Demonstrably it was a case of disorderly behaviour without any rhyme or reason.

18. Under the circumstances the dismissal of the appellants was totally justified and no interference is called for. As a result, the appeals are dismissed. H.B.T./2320/Lb.S ?????????????????????????????????????????????????????????????????? Appeals dismissed.