1991 PLP 382 (PLC)

Wahid Bux, Representative for Appellant. Raees M. Mushtaq for Respondent. Date of hearing: 22nd November, 1989. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No.VI at Hyderabad, dated 5-8-1986, whereby the grievance petition filed by the appellant was dismissed.

2. I have heard Mr. Wahid Bux, the learned Representative for the appellant and Mr. Races M. Mushtaq, learned Advocate for the respondents and also gone through the record and proceedings of the case.

3. Admittedly the appellant was employed as a Chowkidar by the respondents. He was charge-sheeted for an alleged misconduct and after domestic enquiry, he was dismissed from service, vide order, dated 9-2-1985. Being aggrieved by this order, the appellant served his grievance notice upon the respondents and thereafter filed his grievance petition.

4. Before the learned Labour Court, the only point pressed by the respondents was that the appellant was not a workman and, therefore, he could not invoke the provision of section 25-A, I.R.O. 1969, and it was also conceded them that if he is held to be a workman, then, the respondents would be out of Court. Mr. Raees M. Mushtaq stands by the stand taken by the respondents in the trial Court and submits that the only point to be decided by this Tribunal is whether the appellant was a workman and if he is a workman then, his grievance petition be allowed, as the charge-sheet was given beyond the period of limitation as prescribed by Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

5. It is now a settled law that it is not the designation or salary of the employee that determines the status of the workman, but, is the nature of his duties. Reliance may be placed on the case of Security Papers Limited v. S.LA.T. reported in P L D 1988 SC 180, which relates to the case of a Security Guard viz. Chowkidar, where their Lordships had observed, as under:-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. It is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."

6. Mr. Wahid Bux, the learned representative contends that in para. 11 of the affidavit-in-evidence, the appellant has given the details of his duties and had stated that he used to perform the duty of loading and unloading tyres, bring tea and food for staff, clean tables and chairs, prepare tea daily for the staff as well as for the officers and also perform duty as a peon. He further submits that this statement has not been challenged in the cross-examination. In the cross-?examination, it was suggested to him that he was doing only the work of a Chowkidar, but he has denied. However, it was further put to him in his cross-?examination that he had not stated in the grievance notice as well as the grievance petition that he was performing other duties as alleged in his affidavit. Admittedly in the grievance notice as well as as in his pleadings, the appellant had not specifically stated that he was performing the duties as stated in para. 11 of his affidavit. He has, however, described himself as a workman in the grievance notice as well as in his grievance petition.

7. Mr. Raees M. Mushtaq, the learned Advocate for the respondents submits that because he has not given the details of duties in his grievance notice and the grievance petition, therefore, he was debarred from leading such evidence in the Court. he has placed reliance on 1975 P L C 25; 1984 P L C 849; P L D 1975 Kar. 639; and 1980 P L D

175. These cases, however, appear to be distinguishable as in the instant case, the appellant has taken the plea that he is a workman in both the grievance notice as well as in his grievance petition. It is not necessary that he should give the details of his duties or reproduce all the evidence that he intended to give in Court in his grievance notice or in his grievance petition. .

8. It is further submitted by Mr. Raees M. Mushtaq that the District Manager, Mr. Arz Muhammad Abro has given the evidence that the appellant was not performing any other duty than that of Chowkidar. It is further stated that the evidence of Mr. Arz Muhammad Abro to this effect has not been challenged in the cross-examination. Mr. Arz Muhammad has only stated that the appellant was doing no other job except that of Chowkidar, but, he has not specifically denied that the appellant was not doing the job of loading or unloading of tyres or other duties as stated by him in para. 11 of the affidavit. Be that it may, it appears that in the charge-sheet Exh. R.4, the appellant had been charge-sheeted with a charge of having committed a misconduct punishable under the Standing Orders and other Laws. It clearly shows that the respondents considered that the Standing Orders Ordinance was applicable in the case of the appellant when they had charge-sheeted him. In other words, they had treated him as a workman. Mr. Wahid Bux has relied upon the case of Rehmat Ali v. Security Papers Ltd. and another reported in P L D 1982 Kar. 913; where the learned Division Bench of Sindh High Court has held that where employer took action under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, against the employee then, the burden of proof shifted upon them to prove employee did not fall within the definition of workman, given in the Ordinance. This case also pertains to a case of Chowkidar. In the instant case, the burden was upon the respondents to prove that the appellant was not a workman. If the evidence of the appellant and that of Mr. Arz Muhammad Abro is kept in juxtaposition, it will be seen, that the appellant had given the details of work being performed by him, which does not appear to be improbable, whereas Mr. Arz Muhammad had given a general statement that no work other than of Chowkidar was being done by the appellant. He has not even given the details of duties that a Chowkidar is expected to perform.

9. Keeping in view the above law and evidence, I am of the opinion that the respondents have treated the appellant as a workman by serving a charge-sheet against him for a misconduct under Standing Orders Ordinance and that they have failed to discharge the burden to prove that he is not a workman. The evidence of appellant clearly shows that he did manual work. As such, he was a workman as defined under section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. I, therefore, allow the appeal and order the re-instatement of the appellant. Evidence on record does not show that the appellant was either gainfully employed elsewhere, or not so employed. Therefore he is allowed 50% of the back benefits, The order is to be implemented within one month. M.Y.H./1607/Lb.S. ???????????????????????????????????????????????????????????????????????????? Appeal allowed.