1981 PLP 198 (PLC)

Zahid Hamid for Appellant. Shafiq Ahmed Qureshi for Respondent. Date of hearing: 21st April, 1980. This appeal is directed against a decision of the learned Third Labour Court, given on 9th February, 1980 allowing the grievance petition of the respondent against the alleged unauthorised termination of his services and directing his re‑instatement in service with full back benefits. The impugned decision purports to be based primarily on the decision of their Lordships of the Supreme Court in the case of Shahzar Agha v. Sind Labour Court (1977 SCMR 103) wherein their Lordships have held, that for the purposes of maintaining a grievance petition under section 25‑A, I.R.O., the applicant is required to be a worker as defined in the said Ordinance and that further a security guard falls within the said definition.

2. I have heard Mr. Zahid Hamid. who appears for the appellant industry, and Mr. Shafiq Ahmed Qureshi who represented the respondent. It was contended by Mr. Zahid Hamid that as the respondent was seeking to enforce rights admissible to workmen under the Standing Orders, he can succeed only if he establishes that he is a workman for the purposes of the said Ordinance. The learned counsel further submitted that the respondent was employed in the appellant industry as a badli chowkidar, as appears from the evidence led in the case, and was not required to do any manual or clerical work, either skilled or unskilled, and as such he cannot be considered to be a workman for the purposes of the Standing Orders Ordinance.

3. Mr. Shafiq Ahmed Qureshi, on the other band, submitted that the contention of the respondent all along was that he was employed as a general worker and not as a chowkidar and in support of his claim the respondent had enumerated the nature of duties required to be performed by him in his evidence before the learned Labour Court. The learned counsel also invited my attention to the evidence of the Labour Officer of the appellant industry, Muhammad Sarwar, who has admitted that the respondent had worked in the place of one Misal Khan. The learned counsel submitted that it was an admitted position that Misal Khan had worked on machines. The learned counsel further submitted that even if the main nature of duty of the respondent was that of a chowkidar then also in view of the decision of their Lordships of the Supreme Court in Shahzar Khan's case his grievance petition was maintainable and the learned Labour Court rightly directed his re‑instatement in service with full back benefits.

4. Two issues fall to be considered in the instant case. The first is whether for the purposes of filing and maintaining a grievance petition under section 25‑A, I.R,O., against dismissal from or termination of service, an employee has to be a workman as defined in the Standing Orders or in the I.R.O., and secondly, whether the respondent is a work man for the purposes of the I.R.O. or the Standing Orders or both. Now, as regards the first issue, it may be pointed out that the respondent him self, in his grievance petition, has alleged that his services were terminated in contravention of Standing Order

12. In other words, be was seeking to enforce the rights conferred upon workmen under the Standing Orders. As such, he has to be a workman for the purposes of the Standing Ordinance in order to be able to enforce the said rights. As pointed out by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmed, decided on 10th October, 1979, the right to re‑instatement in case of illegal or mala fide dismissal from or termination of service is conferred by Standing Order 12, whereas the machinery, including the forum, for the enforcement of such right is prescribed in section 25‑A, I.R.O. As such, the respondent has to be a workman for the purposes of the Standing Orders in order to enforce his claim.

5. This brings me to the consideration of the second issue, namely, whether the respondent is a workman for the purposes of the Standing Orders Ordinance. It is the case of the respondent that he was a workman employed to do general duties. However, apart from his bare word, he was unable to adduce any evidence to show that he was employed to do general work and not as a Chowkidar, as asserted by the appellant industry. The contention of the respondent that he was employed as a general worker is belied by the vouchers admittedly bearing his thumb‑impression wherein he has been described as a Chowkidar. Apart from this strong piece of evidence controverting the respondent's claim, another Chowkidar in the appellant industry, by name Abdul Hakeem, as well as the Labour Officer of the Industry, have categorically stated that the respondent was employed as a Chowkidar. They have further denied that the respondent was employed for or required to perform any other duties. The admission of Muhammad Sarwar that the respondent was employed in the place of Misal Khan is explained by the fact that for a short period Misal Khan, who was working as a chowkidar, was required to work on machines and it was presumably during this interval that the respondent was employee in the place of Misal Khan. This does not, however, mean that the respon dent was employed on machines. The respondent himself has made no such claim. As such, I am satisfied that the respondent was employed in the appellant industry solely as a Chowkidar. The duties of a Chowkidar are well‑known and do not involve the performance of physical or clerical work. It has been held by a Division Bench of the Karachi High Court in the case of Muhammad Aqil v. Sind Labour Appellate Tribunal (P L D 1978 Kar. 649) that only a person who is required to do any skilled or unskilled manual or clerical work falls within the definition of workman as given in the Standing Orders.

6. Since the respondent is not a workman for the purposes of the Standing Orders, he obviously cannot enforce or claim any rights conferred by the Standing Orders. As such, his claim has no foundation. I would, accordingly, set aside the decision of the learned Labour Court and allow the appeal. Appeal allowed.