1984 PLP 1541 (PLC)

Ghulam Qadir Cheerna for Petitioners. Malik Hamid Mahmood for Respondent. This judgment shall dispose of three petitions filed by Gul Zaman, Sultan Khan and Amanullah Khan (hereinafter called the petitioners) under section 25-A of the Industrial Relations Ordinance as all the three involve common questions of fact and law and all of them were consolidated vide my order, dated 18th March, 1984 passed in Gul Zaman's case.

2. The petitioners were serving as Chaukidars in the Pioneer Steel Mills where their services were terminated vide order, dated 8th of September, 1983 which runs as follows: "As your services are no longer required by the company, the same are hereby terminated with immediate effect. You may approach our Accounts Department for settlement of your dues, if any."

3. This order has been assailed by the petitioners in their petition on the ground that the order is in fact an order of dismissal under the garb of termination and the petitioners were not issued any show-cause notice, etc.

4. The respondent mills has defended the impugned order in tile written statement on the ground that "the petitioner was involved in gross professional misconduct and his services were terminated simply for the sound reason of the petitioner's gross negligence, irresponsible attitude/ conduct towards his official duty as a watchman" (para. 3-B, C & D). This contention was further repeated in the statement of Malik Subeh Sadiq (R.W. 1) that the petitioners have been removed from service on the ground that they were negligent in the performance of their duties because Murid Hussain, Chaukidar was murdered and they did not take any step to save him. They had thus violated the discipline of the respondent mills. It is, therefore, unmistakeably clear that the impugned order is in fact an order of dismissal passed without observing any of the formalities like charge-sheet, explanation, Enquiry Officer, notice of enquiry, giving oppor tunity of cross-examining the P. Ws. and producing one's own defence. I have called it an order of dismissal instead of termination simpliciter because of the background in which it has been passed and stated in the preceding lines i.e. negligence in the performance of duties, violating the discipline of the respondent-mills, gross professional misconduct and irresponsible attitude. If all these are working in the mind of the Dismissing Authority then the order passed is nothing but an order of dismissal no matter what language has been employed by the Employer. The reason given in the impugned order "no longer required" is just a pleasant way of passing a unpleasant order otherwise, for all intents and purposes, the impugned order is an order of dismissal and needless to repeat, without observing the legal formalities.

5. The seniority list (Exh. P. 3) further reveals the hollowness of this ground. The petitioners are at serial Nos. 5, 8 and 27 of the seniority list; their "services are not required" whereas the services of Chaukidars at Serial Nos. 6, 7, 9 to 26 are "required". Amanullah Khan petitioner was appoint ed on 1st August, 1973 and his services are not required in 1983 whereas the services of Dervish Khan, Nasir-ud-Din, Abdul Aziz, Alam Khan, Allah Razi. Muhammad Aslam, Muhammad Saddiq, Muhammad Aslam son of Haq Nawaz and Muhammad Aslam son of Fateh Khan, recruited in 1974, 1976, 1980, 1982, 1983 are "required". This concept of requirement cannot be attributed to anything except that something else is lurking in the mind of the Employer while passing the impugned order. The next contention of the respondent is that the petitioners being Chaukidars are not "workmen" and not competent to file the petition, Learned counsel for the petitioners relied upon 1968 P L C 360, 1981 P L C 818, 1982 P L C 544, P L D 1976 Kar. 139 and 1964 P L C 475 in support of his contention. So far as P L D 1976 Kar. 139 is concerned it has been overruled in 1977 S C M R

103. As against these rulings learned counsel for the respondent produced 1976 P L C 424, 1976 P L C 915 and contended that Chaukidar/watchman is a workman. After going through these judicial pronouncements of the superior Courts my conclusion is that no employee shall be excluded from the definition of workman on the basis of his Designation alone unless that Designation has been so excluded from the definition of workman by the Legislature itself. To illustrate this point t may refer to section 2(u) of the Industrial Disputes Ordinance, 1968 which excludes members of the Security Staff i.e. the Chaukidars and the watchmen, from the definition of workman besides, Police. Army Service of a prison or of a hospital etc. etc, If the legislature wanted to exclude the Chaukidars/watchmen from the definition of workman nothing stood in its way to incorporate this provision in the Industrial Relations Ordinance or the Standing Orders Ordinance. It is the nature of duties performed by a particular employee which shall determine whether he is a workman or net. If an employee is performing any work of clerical or manual nature, whether skilled or unskilled, he shall be a workman within the meaning of Standing Orders Ordinance. )f an employee does not have the power of hire and fire, he is not employed mainly in a managerial or administrative capacity or whose pay does not exceed Rs. 800 per month he shall be deemed to be workman and competent to maintain a petition under section 25-A of the Industrial Relation Ordi nance if any of his guaranteed rights is violated.

6. Keeping in view these principles. I find that the petitioners are workmen. Gut Zaman has stated that they used to clean the furniture take the files from one place to the other, check the persons and vehicles entering and going out of the factory, serve water and tea oil the asking on other officers/officials. Two overtime slips Exh. P. 1 and Exh. P. 2 prove that Gut Zaman performed the duties of Naib-Qasid also. The respondent has denied these two documents but I attach little importance to this verbal denial in the face of this documentary evidence. Much stress was laid by learned counsel for the Respondent on the Duty Roster Exh. R.

2. This duty roster purports to have been issued on 2nd August, 1980. According to the respondent it does not mention any clerical or manual work to be performed by the Chaukidars. This duty roster cannot help the respondent firstly, because the document is not genuine one and appears to have been prepared to defeat the contention of the petitioners that they were performing manual work. Even a cursory glance over this document will show that it cannot be believed to have been written in 1980. It is just a new paper and definitely not four years old.

7. It appears that the occurrence of Murid Hussain's murder was still alive in the memory of the person preparing the document. All the seven duties mentioned in the Duty Roster (Exh. R. 1) are, one way or the other, connected with murder of Murid Hussain. Duty No.2 is to protect the factory officials and workers in the premises of the factory. Duty No. 3 is to check the unauthorised entrance in the factory. Duty No.4 is to remain alert and keep moving. Duty No. 5 is to keep contact with other Chaukidars of the mills and protect the other factory workers. Duty No. 6 is to prevent every type of disturbance in the factory. All these duties are linked with Murid Hussain's murdered so as to hold the petitioners guilty of non-performance of their duties and throw them out of service. 1f these duties were really circulated amongst the Chaukidars their signatures would have been obtained in token of its receipt. My conclusion, therefore, is that this Duty Roster of Chaukidars was forged and it cannot be treated as genuine document.

8. The impugned order is, therefore, set aside and the petitioners are reinstated without back benefits because Gul Zaman has not stated while appearing as P. W. 2 that the petitioners are not earning anything since the time of their dismissal. It is correct that after conclusion of arguments and before announcement of judgment the petitioners filed an affidavit that they did not earn anything from the time of their dismissal but this affidavit is after thought to get the back benefits, therefore, the affidavit cannot be acted upon. The parties are left to bear their own costs. Petition accepted.