1993 PLP 109 (PLC)

MUHAMMAD ASLAM ARAIN, J:--‑‑In this Constitution petition, the petitioner has challenged the orders dated 27‑4‑1988 and 30‑3‑1985 passed by the respondents Nos. 1 and 2 respectively, with the following prayer: "This Hon'ble Court may be pleased to set aside the impugned orders of the respondents Nos. 1 and 2 dated 27‑4‑1988 and 30‑3‑1985 and reinstate the petitioner with all back benefits."

2. Facts of the case as given by the petitioner are, that he was serving as a permanent workman in the establishment of respondent No. 3 and was designated as Jamadar. He was initially appointed as a Chowkidar but later on promoted as Jamadar and he used to perform unskilled manual work along with other Chowkidars. Petitioner's case is that although he was designated as a Jamadar, such designation was meant to show his seniority over other Chowkidars and his duty included searching the persons and goods entering and going out of the Mill Area. On 7‑6‑1983 he was charge‑sheeted on the allegation that a provocative pamphlet was pasted on a notice board outside Railing Department and that as a Jamadar the petitioner was duty bound not to have allowed the pasting of such pamphlet which caused resentment amongst the workers in Mill premises. A second charge‑sheet dated 26‑6‑1983 was also served on petitioner in which it was stated that the petitioner, in order to defame Manager Karim Sahib, had mischievously carried on propaganda in the Mill Area that the provocative pamphlet was put on the notice board at the instance of Karim Sahib. An enquiry officer was appointed to enquire into the misconduct alleged in the charge‑sheets referred to above. The Enquiry Officer by two separate reports dated 9‑7‑1983, held the petitioner guilty of the charges and consequently dismissal order dated 9th July, 1983 was issued by the Chief Executive on behalf of the respondent No. 3 and petitioner was directed to settle his accounts with the Mill Cashier during office hours. The petitioner being aggrieved by his dismissal, filed grievance application under section 25‑A of the I.R.O., 1969 before the respondent No. 2 where the evidence of the petitioner was recorded and so also the evidence of Muhammad Umar, Personnel Manager and Labour Welfare Officer of respondent No.

3. Adequate opportunity was given to the parties to cross- examine the said two witnesses. By order dated 30‑3‑1985, the petitioner No. 2 dismissed the application of the petitioner. An appeal preferred by the petitioner before the respondent No. 1 was also dismissed by order dated 27‑4‑1988. Hence this petition. Learned Advocate for the petitioner has contended that although petitioner was designated as Jamadar, he was a "workman" as defined in subsection (xxviii) of section 2 of Industrial Relations Ordinance, 1969 because the nature of petitioner's job was not only supervisory, but he also worked as a Chowkidar and performed unskilled manual job of searching the persons and goods entering and going out of Mill Area. By virtue of the definition of "workman" as given in subsection (i) of section 2 of West Pakistan (Standing Orders) Ordinance, 1968, the petitioner was a workman, and his application under section 25‑A of I.R.O., 1969 was maintainable. It is next contended that the respondents Nos. 1 and 2 have erroneously held petitioner as not being a "workman" and this Court in its Constitutional jurisdiction can strike down the impugned orders, further directing petitioner's reinstatement with all back benefits. In support of his contentions the learned Advocate has referred to the following decisions: (i) Bakht Rawan v. Sindh Labour Appellate Tribunal and another (1985 PLC 942). (ii) Allied Bank of Pakistan v. Muhammad Humayun Khan and others (1988 SCMR 1664). (iii) Abdul Razzaq v. Messrs Ihsan Sons Ltd. and 20 others (1992 SCMR 505). (iv) Rab Nawaz v. Sindh Labour Appellate Tribunal and 2 others (PLD 1987 Kar. 175). (v) Rehmat Ali v. Security Papers Ltd. and others (PLD 1982 Kar. 913). (vi) Security Paper Ltd., v. Sindh Labour Appellate Tribunal and another (PLD 1988 SC 180). Learned Advocate for the respondent No. 3 has contended that at the relevant time when petitioner was dismissed, he was working as a Jamadar, Incharge of Security guards and was not a Chowkidar and therefore, not a "workman" as defined in the two Statutes referred to above. He has also referred to the evidence recorded by respondent No. 2 where petitioner had admitted that he supervised the work of Chowkidars and reported against such workers as were found avoiding to work during their duty hours etc. He has referred to Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others (PLD 1992 SC 118). We have gone through the impugned orders and have perused the case‑law. It is an admitted fact that‑ he petitioner was appointed as Chowkidar but on 1‑2‑1981 he was promoted as `Jamadar' and being head of Watch and Ward Department, used to recommend leave applications of other Chowkidars, posting Chowkidars at different places in the Mill area and signing as Security Incharge. The nature of his duties being supervisory, he was not a `workman' as defined in the 2 Statutes referred to above. The definition of "workman" as given in section 2 (xxviii) of I.R.O., 1969' is as under:‑ "(xxviii) "worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an Industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to the dispute but does not include any person, (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature. The definition of "workman" as given in Standing Orders Ordinance, 1968 is as under:‑ "(i) "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." The respondent No. 2 before whom the petitioner, filed, grievance petition under section 25‑A of I.R.O. had framed the following points for determination: (i) Whether the applicant is a `workman' within the definition of section 2(1) of standing Orders Ordinance, 1968; (2) Whether the domestic enquiry against the applicant was held in accordance with law and the charges were duly proved and he was rightly dismissed from service. On assessment of evidence, the petitioner was held to be not a "workman" and further it was held that enquiry held against petitioner was not partial and his dismissal was in accordance with law. The said decision is maintained by respondent No. 1 who has also referred to similar contentions of petitioner, as are raised before us. We would now advert to the case‑law referred by petitioner's learned Advocate. In (i) above (1985 PLC 942) a D.B. of this Court while relying on an, earlier judgment reported in PLD 1982 Kar. 913 held as under:‑ "It has also been proved that he was also required to check the goods at the gate which were to be taken out of the factory to ascertain the requisite authority and quality. In our view, petitioner's duties involved the above manual work and, therefore, his case falls within the purview of the above judgment of the Division Bench of this Court:" The Chowkidar whose duty being opening and closing of main gate or factory and checking the goods at gate to ascertain requisite authority and quality, involving manual work was held to be a workman as given in section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In (ii) above (1988 SCMR 1664) the Hon'ble Supreme Court declined to interfere with the findings of the Labour Courts and High Court, who held a Bank Manager drawing salary less than Rs.800 p.m. having no power to appoint, dismiss, charge‑sheet or grant leave to any employee nor authorised to spend money as a "workman" and his grievance application under section 25‑A Of Ordinance, 1969 was held maintainable. In (iii) above (1992 SCMR 505) the Hon'ble Supreme Court while dealing with the question as to whether an employee was workman in field of Labour legislation observed as follows:‑ "It is the nature of work done by the employee that would be 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 prove him within the ambit of definition. The main features, the pith and substance for his employment must be manual or clerical before the definition is attracted." In (iv) above (PLD 1987 Kar. 175) a D.B. of this Court while dealing with the case of petitioner Rab Nawaz, who was employed as Chowkidar but the duties performed by him included opening of gates, physical search of trucks, counting of bags, checking of quality of rice and conducting search of persons was held to clearly bring him within the ambit .of definition of "workman". In (v) above (PLD 1982 Kar. 913) a D:B. of this Court held that mere fact of a person being employed by designation of Chowkidar or security guard, cannot exclude him from definition of `workman' given in section 2(i) of Ordinance, where a Chowkidar or a security guard performed duties of nature referred to in definition. It was held that he would be covered by the definition of workman as given in section 2(i) of Ordinance of 1969. In (vi) above (PLD 1988 SC 180) it was held as under:‑ "The test of determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial opinion seems to be that 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." We would also like to refer to the case of Rana Mukhtiar Ahmed (PLD 1992 SC 118) referred by the learned counsel for the respondent No.

1. In this case the essential work that appellant was doing was to supervise the work of contractor and see that he was carrying out the work in accordance with the drawings etc. given to him. The work performed by appellant did not involve any skill nor did he do any work of a clerical or manual nature. The appellant was held not a workman and the finding of the High Court to that effect was affirmed. It has come to evidence that the initial appointment of petitioner was as a Chowkidar but with effect from 1‑2‑1981 he was promoted as Jamadar and his duties were mainly to supervise the work of other Chowkidars and assign them duties during the Mill hours. Mere assertion of the petitioner that he also checked in and out the workmen or the vehicles without there being any evidence, would clearly show that he did not carry on any manual or clerical work. His case, therefore, did not fall within the definition of `workman' as given in the Ordinance of 1969 and his grievance application before the respondent No. 2 was not maintainable. As to the charge of misconduct against petitioner the reasons given by the respondents Nos. 1 and 2 on facts cannot be interfered by this Court in its Constitution jurisdiction. In the result, we find no substance in this petition which is accordingly dismissed, leaving the parties to bear their own costs. H.B.T./L‑69/K Petition dismissed.