2007 PLP 83 (PLC)

MUHAMMAD MOOSA K. LEGHARI, J.

This appeal arises out of the judgment dated 29-9-2005 passed by Labour Court No. IV, Karachi in Grievance Petition No.42 of 2004 whereby the petition filed by the petitioner for his reinstatement was dismissed being not maintainable.

2. Precisely stating, the facts are that the applicant/appellant claimed to be a permanent employee of the respondents. He was performing duties of manual and clerical nature and was a workman. It was pleaded that without any reasonable cause, services of the applicant were terminated by the respondent No.2 vide their letter dated 17-7-2003. Being dissatisfied with the reply of the respondent's management to the grievance notice served by the applicant/appellant, he filed a grievance petition for reinstatement in service.

3. The respondent No.2 through his written statement challenged the status of the appellant/applicant to be a workman as defined in the Standing Order Ordinance, 1968. It was pleaded that the services of the applicant were, terminated in accordance with the terms and conditions of his employment. It was averred that the applicant being Incharge of the shift was supervising the work of six guards/Chowkidars who were working under him, and therefore, was not competent to invoke the jurisdiction of Labour Court.

4. The applicant appeared as his own witness and was cross-examined by Mohsin Mirza Factory Personnel Manager who was tendered in evidence by the respondents was partly cross-examined. However, subsequently, one Abdul Qadoos put his appearance as witness on behalf of the respondents and his affidavit in evidence was brought on record, yet the said witness could not be cross-examined on behalf of the applicant/appellant despite several chances given to him.

5. Learned Labour Court framed the following points for determination: -- (1) Whether the applicant was not a workman within the meaning of section 2(i) of the Standing Orders Ordinance, 1968 as such this grievance petition is not maintainable? (2) Whether the grievance petition is time-barred? (3) Whether the respondent is not being represented by competent person? (4) Whether the applicant is entitled to the relief of reinstatement and back benefits as claimed? (5) What should the order be?

6. After hearing the arguments and examining the evidence adduced on the record the Labour Court arrived at the conclusion that the applicant had not been able to prove that he was covered by definition of workman as contained in Standing Order 2(i) of the Standing Order Ordinance. Consequently, the Labour Court dismissed the grievance petition holding that the same was not maintainable. Hence this appeal.

7. Since the appellant was not represented by an Advocate, Mr. Ch. Rasheed Ahmed a Senior Advocate of the Labour Laws was called upon for assistance to plead the case on behalf of the appellant. It was contended on behalf of the appellant that the documents attached with legal objections and reply statement submitted on behalf of the respondent exhibited R.1 to R.5 were adequate enough to show that the applicant/appellant was performing duties of manual and clerical nature. As such the applicant was a `workman', and thus competent to maintain the grievance petition. He contended that the findings recorded by the Labour Court were against the evidence on record and therefore, not sustainable in law.

8. Conversely it was contended on behalf of the respondents that the appellant/applicant has miserably failed to bring a tangible evidence on record to show that he was a workman. It was argued that the Labour Court, has rightly held that the applicant was performing duties of supervisory nature and that the judgment of the Labour Court was .valid the same being based on sound reasons.

9. The contentions put forward by the parties have been carefully considered and the material placed on the record has been scrutinised.

10. It is well-settled proposition of law that for invoking the jurisdiction of Labour Court an employee was required to prove by leading positive evidence that he was workman within the definition contained in section 2(i) of the Standing Order Ordinance which defines the qualification to bring a person within ambit of workman which could be elaborated in the following manner:- (i) That he should be a person employed in any Industrial or Commercial Establishment. (ii) That he should be a person employed to do skilled or unskilled work which should be either manual or clerical. (iii) That he should be employed for hire or reward.

11. It is equally settled for deciding the question as to whether an employee would be falling within the definition of a workman or not, the designation of an employee or for that matter the wages being paid to him would have, no material effect, and were of little consequence.

12. In the present case, the applicant was employed as Assistant Hawaldar. The applicant/appellant in para.4 of his grievance petition has elaborately given the details of the duties being performed by him as a workman. In the reply statement it was pleaded that the applicant was not employed to perform any skilled or unskilled manual or clerical work. It was stated that he was performing duties, which were purely supervisory in nature as six guards were working under him.

13. It will be appropriate to reproduce hereunder the details of the duties claimed to have been performed by the applicant/appellant as contained in the grievance petition. "(i) The applicant was made responsible to open/close Factory's gate enabling employees to enter and leaving them to go out of the Factory after completion of their work or at the ends of shift working after every 8 or 12 hours cycle. (ii) The applicant's duty was to search workers and their vehicles if any with the security point of view and with the view to save employer's property. (iii) The applicant's duty was to extinguish fire if broke up any where in the Factory's premises and to keep fire fighting instruments ready for use in emergency. (iv) The applicant's duty was to physically search heavy trucks and vehicles to see whether the quantity/quality of the material incoming or going out of the Factory was in accordance with the contents of gate pass and after such verification to keep in record of such gate passes and at the end of duty to hand over the same to the reliever or to the incharge of Watch and Ward Section. (v) The applicant's duty was to receive water for Industrial use from private Tankers and to check T.D.S. of the water of each tanker by using T.D.S. Meter and also to collect sample of such water to send to laboratory for further analysis: (vi) The applicant's duty was to check whether the water supply from Water and Sewerage Board is continue or discontinue and to watch the water level in the underground and overhead storage Tanks and to start/stop the pumps to maintain required quantity of water level in the said storage Tanks. (vii) The applicant's duty was to send daily attendance report of all the watchmen present on duty or on overtime to the time office and to write down performance report of the shift staff of the Watch and Ward Section and to submit the same to the Incharge of Watch and Ward Section."

14. The respondents have not categorically denied the performance of such duties by the appellant/applicant. On the contrary the documents attached as Annexures "R-1" to "R-5" along with written statement legal/objections filed on behalf of the respondents clearly show that the applicant was checking the pumps and motors and making reports to the Incharge about performance of the shift staff. These documents support the plea of the applicant that he was performing manual and clerical duties, as enumerated by him in his petition and affirmed in his affidavit-in-evidence. It is not denied that the applicant was appointed as watchman in the year 1997 and that at the relevant time he was working as Assistant Hawaldar.

15. Respondents management has brought nothing on the record to show that the applicant was performing duties of supervisory or administrative nature. As observed earlier, the documents annexed with the written statement by the respondents themselves support, the case of the applicant. The Labour Court thus, erred in recording findings that as per Annexures "R-l" to "R-5" work being done by the applicant/ appellant was supervisory in nature. The Labour Court also committed error in observing that because his salary was increased while he was working as watchman; and that because he himself claimed to be working on an important post; and that since the- Assistant Hawaldar could he promoted to the post of Hawaldar he was performing duties of administrative nature. It may be understood with clarity that the above reasons, would be difficult to be sustained to justify the exclusion of an employee from the definition of "workman" contained in the West Pakistan Standing Order Ordinance. Learned Labour Court also misdirected itself in recording the findings that since the applicant/appellant was submitting the reports to the higher officers, therefore, he was performing administrative work. The reasons assigned for holding the applicant as non-workman are fallacious, perfunctory and invalid. The Labour Court seems to have fallen in error by not appreciating that no tangible evidence was brought on record by the respondents to rebut or disprove the assertion made by the applicant/appellant to bring him within ambit of workman.

16. In view of the above discussion, the findings of the Labour Court that the applicant/appellant was not covered by definition of workman are against the evidence and therefore, liable to be reversed. It is declared that the applicant was covered by definition of "workman" as per the provisions of I.R.O. 2002 and West Pakistan Standing Order Ordinance, 1968. He was competent to invoke the jurisdiction of Labour Court and that grievance petition filed by the applicant was maintainable.

17. So far as termination of service of the applicant is concerned it may be stated that the letter of termination does not contain explicit reasons for termination of his service as stipulated under Standing Order 12 of West Pakistan (Standing Orders) Ordinance, 1968, thus, it was unsustainable, as merely by intimating the workman, that his services were no more required, could in no way, be understood and deemed to be explicit reason to justify the termination of a workman.

18. For the above reasons appeal is accepted and the order passed by Labour Court in Application No.42 of 2004 is set aside. Resultantly, the application of the applicant is allowed.

19. Applicant in para.8 of the grievance petition has clearly stated that he was facing hard days of poverty due to illegal unemployment. Nothing has been placed on record against the above plea raised by the applicant to take a view that during the intervening period, the applicant was gainfully employed. In the circumstances, the applicant is entitled to back benefits.

20. So far as the question of reinstatement of the applicant in service is concerned, such orders could not be passed in the circumstances of the case, as those would neither be just nor fair and equitable, if not, outrightly illegal, for the reason that the respondents have stated in the affidavit-in-evidence that after termination of service of the applicant all the staff working in the security department of the respondent had been terminated. The above assertion of the respondents management has gone unchallenged as respondents witnesses who were partly cross-examined were not given any suggestion to the contrary; while affidavit-in- evidence filed by respondents' witness Abdul Qudoos went uncontroverted as the applicant/appellant failed to cross-examine him. Apart from above, by making ridiculous assertions rather persistently levelling uncalled for, and outrageous allegations against the respondent-management, not only in the pleadings but during the entire proceedings are obvious enough on the part of the applicant to display ill-advised arrogance, uncalled for confrontation, haughtiness and vanity to render him unacceptable to the respondents, thus, the order for his reinstatement would amount to kicking the respondents from the behind to push them to drink deep of the 'cup of humiliation, disgrace and embarrassment, eventually enhancing the degree of disharmony and conflict, which could hardly be the object of enacting the labour laws.

21. The Legislature, in their own wisdom, seems to have taken care of such situation. It will be noted that conspicuously distinguishing feature between the I.R.O. 1969 and the I.R.O. 2002 is that under the provisions of the repealed I.R.O. 1969 if the Labour Court, arrived at a conclusion that the removal of a workman was wrongful, it could pass orders for his reinstatement in service, while the I.R.O. 2002 also provides for a second option, whereby the Labour Court instead of passing orders for reinstatement of a worker could adequately compensate him for wrongful termination, by way of awarding him wages to the extent of 30 months. The Legislature seems to have enacted this provision to enable the Labour Court to pass such orders keeping in view the circumstances of the case. Certainly in the case in hand, it is warranted by the circumstances, wherein the applicant should be awarded compensation, instead of ordering his reinstatement. The respondents are accordingly directed to pay 24 months wages to the appellant at the rate of Rs.2,830 p.m. as stated by the applicant himself in his cross-examination, as compensation for wrongful termination. Appeal is allowed in the above terms. H.B.T./G-20/K Appeal allowed.