2004 PLP 26 (PLC)

6. Respondent No.3 made the following endorsement in red ink:‑ "I agree with you. Co‑ordinate with Mr. Shahid Insha and prepare ail required documents and place in his file". "Now, in the said admitted position on record this is how this witness responded to the cross examination by the learned counsel who, inter alia, was representing him as well. "It is correct that I was appointed as an Inquiry Officer against the petitioner on 31‑1‑2001. I issued a notice to the petitioner and prior to the receipt of grievance from the petitioner, I had completed all the legal formalities. The object of this noting Exh.P16/1 was to compile the complete file which was being dealt by different departments." A bare reading of said note Exh.P 16/1 admittedly written by this witness on 9‑3‑2001 completely negates and falsifies the said statement made by him in the said cross‑examination as P.W.‑2 and consequently his statement as RW‑

5. Rather, the said nothings on the said grievance notice by respondent No.5 agreed by the respondent No.3 leave no manner of doubt as to what assignment was given to respondent No.5 and the said Shahid Insha who appeared as RW‑

2. It is further evident that the documents were fabricated and placed on record, on 11‑7‑2001 i.e. the date on which the evidence of the respondent was recorded. These were objected for the said reason but no reason is forthcoming and the impugned judgment is silent as to why these documents were not placed alongwith written reply by the respondents.

7. Learned counsel also tried to argue that by signing what is termed as final settlement the appellant was estopped from filing their grievance petition. Now, the copy of this document is Exh. R‑1 at pale 143 of trial Court's file. Now, I have already stated above that it is an admitted position that the appellant was appointed on 18‑3‑1995. However, this document narrates that he was appointed on 16‑8‑1999 and the period of his service has been stated as one year six months and nine days. This document is dated 3‑3‑2001 and the same is the date of the grievance notice. To my mind nothing turns on the said document, which rather appears to be spurious document, in favour of the respondent.

8. I am, therefore, satisfied that the appellant has been terminated without a written order and although the respondents have alleged misconduct against him, he has not been proceeded against in accordance with the mandatory directions contained in the said (Standing Orders) Ordinance, 1968. This brings me to the question as to whether or not the appellant is workman or worker within the meanings of the said laws. Now section 2(viii) of I.R.O. 1969 defines an employer to be any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of an employment. The definition has then been broadened to include the persons mentioned in clauses (a) to (c) of sub‑clause (viii) of the said section

2. To my mind clause (b) is relevant whereby a person responsible for the management supervision and control of the establishment is included in the said term.

9. Now, section 2 (xxviii) defines a "worker" and "workman" as follows:‑‑ "Worker, and "workman" means any person not falling within the definition of employer who is employed (including employment as a superior or as 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 proceedings 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 of as a consequence of that dispute or whose dismissal discharge, retrenchment, lay‑off or removal has led to that 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" Now there is no manner of doubt in my mind upon reading of said definition of employer in juxtaposition with that of a worker that appellant is a worker or workman within the meaning of said law. Now, section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 defines a workman as follows:‑‑ "(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." Now according to para 4 of the grievance petition, the appellant has stated that his duty was to check the availability of the products package wise in the market. The respondents have responded under this para as follows:‑‑ "It's a procedural matter, needs no reply." I find that in his cross‑examination as P.W.‑1 nothing has been suggested to him regarding the performance of his duties. I have already mentioned above that formal letter of his appointment has not been issued and it has not been produced. RWs are silent as to the nature of duty of the appellant. Now coming to the law cited by the learned counsel for the parties. To my mind, the said case of Brooke Bond Ltd. fully supports the contention of the learned counsel for the appellant that his client is a workman. I may note here that their lordships with reference to the earlier judgments of the Hon'ble Supreme Court of Pakistan in case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca, etc. (PLD 1961 SC 403) distinguished the said earlier judgment with reference to the definition as contained in the erstwhile Industrial Disputes Ordinance, 1959 and the I.R.O. 1969. Now coming, to the judgments being relied upon by the learned counsel for the respondents I find that the said case of Ghulam Muhammad v., Government of Punjab (2002 SCMR 30) although, not on the point as to whether the petitioner before their lordship, was not a workman does go to state a solutory proposition of law that a Labour Court can go behind the dismissal order and see for itself whether on facts and in circumstances of the case dismissal order was or was not justified both on merits as well as on facts. Their lordships observed that the intention of the legislature appears to provide a double check, one in the form of domestic inquiry to be held by an employer and the other in the form of a judicial inquiry by a Labour Court. In the instant case, there is no dismissal order and the learned Labour Court has opted to remain completely silent regarding the document Exh. 16 and its implication which are clear on its face and the admission of respondent No.5 as RW -5 that he wrote the note Exh. P‑16/1 thereon. So far as the case or Government of Baluchistan Live Stock Department is concerned, a learned Division Bench of High Court Baluchistan decided the matter with reference to definition of a worker in the Factories Act, 1934. In the said case of Muhammad Hafeez a learned Division Bench of High Court Sindh at Karachi laid own the proposition that where violation of the said (Standing Orders) Ordinance, 1968 is alleged it is to be proved that the applicant is a worker within the meaning of the said law.

10. Having thus examined the records and the said law cited by both the learned counsel I do find that the learned Labour Court erred in holding that the appellant is not a workman. Simply because he is designated as a Sales Officer would not derogate from the fact that he is actually a workman doing manual/clerical work of visiting the markets and checking up the stocks therein.

11. For all that has been discussed above, this labour appeal is G allowed. The impugned judgment of the learned Labour Court, Islamabad is set aside and the grievance petition filed by the appellant is allowed with costs through nut. He shall stand reinstated with all back benefits. However, if the respondents want to proceed against him for any misconduct, they shall do so strictly in accordance with the provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. H.B.T./A‑972/L Appeal Allowed.