1984 PLC 460 (PLP)

Date of hearing : 22nd January, 1984. The facts briefly stated are that the respondent, Ghulam Hyder and five others were removed from service by their employers the appellants Messrs Zaiba Textile Mills in the year 1976. They sent grievance notices to the appellants and ultimately filed applications under section 25‑I I.R.O. 1969, in Labour Court No. IV, Karachi, their grievance having no been redressed. The appellants raised the pleas amongst others that sine there were less than 20 workers employed‑in the establishment since March 1975, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would not be applicable to the case of the respondents and that their applications were also barred b; limitation. The learned Labour Court allowed the applications of the respondents, directing their re‑instatement and granting back benefits, vide it order, dated 21st February, 1977.

2. The above order was challenged in appeal before this Tribunal and this Tribunal, vide its order, dated 20th July; 1977 remanded the case to the Labour Court, finding that the plea of limitation though taken was no decided by the learned Labour Court and directed to decide the same and then dispose of the case on the basis of such findings. Thereafter, it appears that the case was transferred to the learned Labour Court No. 111, Karachi, and the learned Labour Court, vide its order, dated 29th April, 1978 finding the time limit as laid down by section 25‑A, subsection (1) 1 R.O. 1969, allowed the same directing the re‑instatement of the respondents with back benefit; as already directed by the learned Sind Labour Court No. IV in its order dated 21st February, 1977. This order of the learned Labour Court No. II was challenged in this Tribunal in appeal and this Tribunal, vide its order dated 19th February, 1979 coming to the conclusion that there were more than 20 workmen in the, employment of the appellants and, therefore, the Standing Orders Ordinance was applicable and also finding the other plea including the plea of limitation in favour of the respondents, dismissed the appeal. The appellants moved the Hon'ble High Court in Constitutional Petition and the High Court, vide its order, dated 3rd February, 1983 remanded the case to this Tribunal only on the question whether the duties of the two Chowkidars employed in the appellant establishment were such as would bring them within the meaning of workmen as defined in section 2 (i) of the Standing Orders Ordinance, in order to attract the provisions o the West Pakistan Industrial and Commercial Employment (Standing Orders: Ordinance, 1968, to the case of the respondents. It was further directed that the parties shall be allowed an opportunity to lead evidence and the appeal will be disposed of accordingly:

3. The parties have examined evidence in support of their respective cases. The appellants have examined Shahbaz Hussain, the working partner of the Mills, whereas the respondents have examined one of them namely, Ghulam Hyder, admittedly the two Chowkidars, namely Subhanullah and Abdul being no more in the employment of the Mills.

4. I have persued the evidence recorded and have also heard the learned counsel appearing on behalf of the parties, Mr. Khalid Javed for the appellants and Mr. Syed Izhar Ahmed for the respondents. Mr. Khalid Javed for the appellants has mainly contended that the two Chowkidars Subhanullah and Abdul were not workmen within the meaning of section 2(i) of the Standing Orders Ordinance, 1968, as being Chowkidars, they were not doing any manual work and, therefore, would not be included it the. workmen to be more than 20 to attract the applicability of the Standing Orders Ordinance. On the other hand, Mt. Syed lzhar Ahmed, the learned counsel for the respondents has contended that the main duties of the Chowkidars' admittedly were to open and close, the gate and also to search the persons of the workers going out of the mills when suspected and since that process involved significant use of hands, the Chowkidars were definitely doing manual work within the meaning of definition of workmen as defined in section 2 (i) of the Standing Orders Ordinance, 1968, and if they are in cluded in the workmen employed by the appellant establishment they would exceed definitely` 20 and the Standing Orders Ordinance would be applicable to the case of the respondents.

5. On scruting of the evidence, I find that Shahbaz Hussain, the work ing partner of the appellants mills, the only witness examined on behalf of the appellants has clearly admitted in his evidence that the Chowkidars used to open arid close the gate and also used to search persons of the workers going out of the mills whenever they were suspected. I further find that such duties of the Chowkidars are included in the duties enumerated by the respondent, Ghulam Hyder, in his deposition before this Tribunal. He has clearly deposed that the Chowkidars used to take search of the workers of the mills while getting inside the mills and going outside the mills while they were sitting at the gate. He has further deposed that the gate of the mills also used to be opened and closed by the Chowkidars. He has even gone to the extent to say that the goods which were being brought to the mills were also to be removed by the Chowkidars, from the vans and that they also used to prepare , the tea for the staff of the office of the mills. In view of the clear admissions, as stated above, made by Shahbaz Hussain, admittedly the working partner of the appellant mills, there is no room for doubt in my mind that the Chowkidars at least used to open and close the gate of the mills and while sitting there used to search the person of the workers going out of the mills whenever they suspected them. These duties on their part obviously involved significant use of hands and they were definitely performing manual work within the meaning of the definition of `workmen' under the Standing Orders Ordinance. In that respect, Mr. Syed Izhar Ahmed has also relied on the case of Rehmat Ali v. Security Papers Ltd. and another (P L D 1982 Kar. 913), wherein it was clearly held that a mere fact that a person is employed by the designation of Chowkidar or security guard will not exclude him from the definition of 'workman' given in section 2(i) of the Ordinance. The Court will have to deteremine the nature of his duties. If a Chowkidar or security guard perform any of the duties of the nature, referred to in the definition, he will be covered by the definition. It would, therefore, appear that the two Chowkidars were 'workmen' within the meaning of definition in the Ordinance.

6. The learned Sind Labour Court No. IV, Karachi, in its orders, dated 21st February, 1977 on this issue concluded with the following observations :‑‑ "(6) It is contended on behalf of the respondents that less than 20 workmen were employed since March, 1975, and therefore, the pro visions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not attracted in the instant cases. Reliance is placed upon wages reg1ster, letter of respondents, dated 5th April, 1976 addressed to Deputy Director (Labour) East Division, Karachi, and certificate of Assistant Director Labour and Inspector of Factories, East Division, Karachi, dated 8th November, 1976. All these documents are, however, belied by Muhammad Moosa (D.W. 1) who admitted in cross‑examination the following "There were two shifts in December, 1975. Seven weavers used to work in one shift. There was one wraper. There was one Sarner in 1975. There were only two Chowkidars in December, 1975. There was only one person working in the office. There was only one Oilman. One Jobber/Weaving Master, worked in both the shifts. I cannot give the number of workmen employed in December, 1975. (7) From the above admission it is proved that there were more than 20 persons working in the respondent mills in December, 1975. According to the applicants their services were verbally terminated in June, 1976, and therefore, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable to the respondents."

7. The finding of the learned Labour Court as above was upheld throughout even by the Hon'ble High Court, vide its Remand Order, dated 3rd February, 1983. In view of my finding above‑mentioned to the effect that the two Chowkidars are workmen within the meaning of the definition in section 2(i) of the Standing Orders Ordinance, the workmen employed in the appellants factory would be definitely more than 20 and the result would be that the Standing Orders Ordinance, 1968, would be applicable to the case of the respondents and their applications under section 25‑A, I.R.O. 1969, were legally maintainable.

8. The result is that the appeal is dismissed. A. E. Appeal dismissed.