1982 PLP 889 (PLC(CS))

(a) recipe preparation; (b) cooking; (c) receiving and issuing supplies; (d) requisitioning dry stores and perishable items; (e) checking, testing and quality control of food; (f) making entries in and maintaining various registers and books, (g) costing and co‑ordinating service from kitchen to the dining hall; (h) throwing away and disposal .of the rotten vegetables, foodstuff and similar inconsumable stuff ;and (i) other skilled, manual and clerical work. There is no reliable or tangible evidence to contradict the appellant's evidence on this point. No serious attempt was made to challenge in cross‑examination the nature of duties specified by her except on the point that there were a number of cooks and head cook working in the kitchen whose number she was ‑unable to give. It was also suggested to her that she had acted as a Manager and signed letters in that capacity but she strongly repudiated such a suggestion.

4. The only witness examined on behalf of the respondent‑Company was their Manager Gul Bazar. He has, no doubt, in his evidence before the learned Labour Court stated that the appellant was exclusive Incharge of the kitchen alongwith entire staff posted therein and responsible for the whole affairs of the kitchen and was not to be interfered with by any officer of the respondent but he has not produced any document in support of his assertion. It appears that he, in fact, tried to produce certain documents before the learned Labour Court tending to show that the appellant bad performed duties of managerial nature but as these documents were not produced by him at the earliest opportunity nor was the appellant confronted with the same, he was rightly not permitted by the learned Labour Court to produce the same at a late stage when the documents admittedly came from his possession. There are other circumstances tending to throw heavy doubts on the credibility of this witness. He had first strongly denied that the appellant used to issue and ‑receive kitchen supplies but he was confronted with his evidence in the case under section 34, I. R. O., where he had admitted that the appellant used to issue and receive supplies. It may be explained that the case under section 34, I. R. O., was filed by the respondent company praying that the appellant, who was the General Secretary of the Workers' Union and the C. B. A., in the respondent establishment, be restrained from acting as such. This application was admittedly rejected by the learned Labour Court.

5. There are other circumstances indicating that the appellant was a workman and was considered as such by the management. It has been admitted by the respondent's witness, Gul Bazar, that while he was General Supervisor in the respondent‑Company, he was the President of the Workers' Union and similarly other Supervisors in the respondent-Company held positions of General Secretary and other officers in the Workers' Union. In fact, it was only after he became the Manager of the respondent‑Company that he relinquished office of the President of the Workers' Union. Strongly enough after he became Manager he singled out the appellant for pressurising her to resign her post of General Secretary of the Workers' Union when admittedly other Supervisors, who were Members or office‑bearers of the Union, were not to do so. The fact that it was the practice in the respondent‑Company that Supervisors were entitled to be Members and Officers of the Workers' Union indicates that they were treated as workman.

6. Another circumstance indicating that the appellant was a workman was that she used to receive service charges alongwith other workers. She could be entitled to those charges only if she was part of the staff serving the customers. The admission of Manager Gul Bazar that he and other officers were not receiving any service charges show that there was a clear distinction between Officers and workmen and that the appellant was not considered as an Officer of the respondent‑Company and was bracketted with the workman.

7. Mr. Wasi Ahmed sought to rely on the letter, dated 23rd October, 1978 written by Manager Gut Bazar to the appellant, which refers to certain duties and responsibilities of the appellant, but that letter was written when there was a dispute between her and the management, in which Manager Gut Bazar appears to have been directly concerned regarding the appellant's status as a workman and entitlement to continue as General Secretary of the Workers' Union.

8. The learned Labour Court, in holding that the appellant had failed to establish that she was a workman for the purposes of the Standing Orders, has relied upon the observation of this Tribunal in the case reported as Johnson & Johnson v. Zubair Ahmed (1980P L C 622) that normally a person who seeks to enforce a claim must establish that he is entitled to that claim or right and consequently a person filing an application under section 25‑A, Industrial Relations Ordinance, 1969, must establish that he is "workman" under the Industrial Relations Ordinance, and/or under the other law under which he claims the right. However, as observed in the said Judgment by this Tribunal, if a person establishes that he is an employee of an Industrial or Commercial establishment the burden would be light one. Furthermore, it was pointed out by this Tribunal in the case of Abdul Hameed Shaikh v. Qureshi Brothers Tanners (1980P L C 1099) relying on the decision of their Lordships of the Supreme Court in the case reported as Muhammad Bashir v. Rehmat Bibi (1970 S C M R 478) that the question of onus or burden of proof loses importance when evidence is led by both parties and in such cases the matter is to be decided on the evidence on record. The evidence, to which I have referred strongly supports the contention of the appellant that she is a workman mainly employed to do work of, routine nature, either clerical) or manual. I would, therefore, set, aside the decision of the learned Labour Court and would remand the case to it for deciding the grievance) petition of the appellant on merits. As ibis is an old case which has been unfortunately pending adjudication since a considerable time the learned Labour Court is directed to give priority to this case and dispose of the same as early as possible. Case remanded.