1991 PLP 805 (PLC(CS))

S.S. Jehangir for Respondents. Date of hearing: 28th February, 1990. This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No. 1, Karachi, dated 4-10-1989, whereby the grievance petition filed by the appellant was dismissed. 2. The brief facts of the case are that the appellant, who claims to be a `workman' working with the respondents had made a false entry in the attendance register with respect to one sweepers on 23-9-1987 for which he was charge- sheeted. He was found guilty in the domestic enquiry and was dismissed from service by letter, dated 11-11-1987. After serving grievance notice upon the respondents he filed grievance petition before the learned Labour Court which was resisted by the respondents on the ground that the appellant was not a workman but was a Supervisor/Inspector and that the charges were proved against him in the domestic enquiry. 3. I have heard Mr. Khalil-ur-Rehman, representative for the appellant and Mr. S.S. Jehangir for the respondents. 4. The learned Labour Court has held that charges against the appellant are not proved in the domestic enquiry, which according to learned Labour Court was illegal enquiry. No cross-objections have been filed against this finding of the Labour Court. However the learned Labour Court had dismissed the grievance petition only on the ground that the appellant was not a workman but was working in supervisory capacity. 5. Admittedly the appellant was initially employed as Sweeper. He is said to have been subsequently promoted as supervisor and to have been posted as Inspector Conservancy, Clifton Division vide order dated 8-4-1987. In his grievance application he has described himself as a permanent workman working in the capacity of sweeper. In reply to the show-cause notice which is Exh. `B', dated 24-9-1987, he has shown his `surprise' on being addressed as `Inspector Conservancy' and stated that he is an `illiterate' person and was performing his duties as Sweeper. In the reply statement, however, the respondent 4lleged that -the applicant was employed in administrative capacity, having full powers to supervise the sweepers and as such he was not a workman. In his deposition the appellant had stated that he used to work with Belcha and he used to fill in the truck. 6. It is not disputed that the appellant was initially appointed as `Sweeper' and therefore would be a workman. The allegation that he was subsequently promoted is not admitted by the appellant. The burden, therefore, shifted upon the respondents to prove that he was promoted and that his duties, after promotion, did not involve any manual work. The only evidence that has been produced is letter Exh. `AA' alongwith the reply statement, which is photostat copy of the order, dated 8-4-1987, whereby respondent was promoted from supervisor Gulshan-e-Iqbal to Sub-Inspector, Clifton Circle. No order of promotion as `supervisor' has been produced. The respondents themselves are confused with regard to the designation of the appellant. From this order it appears that he was `supervisor' and had been posted as `Sub-Inspector' whereas in the letters vii. Show-cause notice' etc., he has been shown as- `Inspector Conservancy'. No `Chart of Duties' of the appellant has been produced by the respondents. 7. It is settled law that it is not designation but the nature of duties, that the employee performs which determines his status as a `workman'. The appellant claims his right under West Pakistan Industrial & Commercial Employ-mint (Standing Orders) Ordinance, 1968 (hereinafter referred to as `Ordinance') and therefore it has to be determined whether he is a workman as defined under section 2(i) of the Ordinance, which provides that `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. It is not disputed that the respondents are `commercial establishment' and the appellant was working for hire with them on salary of Rs.1,200 per month. From his evidence it appears that he was doing `manual work' by working with `Belcha' and filling the truck. As a senior-most sweeper he might also be supervising the work of other sweepers. 8. Mr. Khail-ur-Rehman, learned representative for the appellant, has relied upon the case of Messrs Ihsan Sons Ltd. v. Abdul Razzak Habib and others 1987 P L C 390 wherein learned Division Bench of Sindh High Court, Karachi has discussed the distinction between a `supervisor' and a person employed in a `supervisory capacity'. Their Lordships have observed that `supervisor is a workman immediately above lowest level of workers in an establishment or industry who has supervisory duties, but has no power to engage -or remove workers or take any other disciplinary action against workers. Whereas person engaged in a supervisory capacity is a person who is head and incharge of his section.' Their Lordships have held that `supervisor' was included in the definition of `workman'. In the instant case also there is no evidence to show that appellant was head or incharge of any section or he had any `administrative' powers. 9. The respondents have produced two documents to show that the appellant was an `Inspector'. These are Exh. AW. 1/1 nd Exh. , which were produced by the respondents through the appellant in the cross-examination of the appellant. Exh. AW-1/1 is a `warning letter' which admittedly bears the signature of the appellant. By the side of his signature word `Inspector' is written. In all the documents produced by the appellant and respondents which bear signature of the appellant, he has not described himself as `Inspector accept in document Exh. AW-1/I. The appellant claims to be illiterate person and which appears more probable even from the nature of writing of his signatures. There is no evidence to show that he was an `educated person' and knew Urdu to read and write except to sign. This document was confronted to him and he admitted his signature. He was not asked whether word `Inspector' was also written in his handwriting. Handwriting is obviously different. This fact is borne out from the fact that photostat copy of this letter was also produced from the appellant alongwith his grievance petition Exh. `C' but it simply bears his signature and no word `Inspector' is written on it. Further more the date under the signature on Exh. `C' is 25-9-1987 whereas the date of the signature on Exh. AW-1/1 is 24-9-1987. There appears to be manipulation in this document Exh. AW-1/1 and the mere mention of `Inspector' against the signature of the appellant would not prove that he was `Inspector'. Exh. AW-1/2 is an application purported to have been made by the appellant for procurement of `Scooter' as he had to supervise the work of very large area. The appellant denied to have made such application or signature on this application and there is no evidence to the contrary. As pointed above even the respondent is not sure as to whether the designation of the appellant was `Inspector' or `Sub-Inspector'. According to order he was posted as Sub-Inspector and on all the letters he is addressed as `Inspector'. 10. The respondent claims that their establishment has been closed because the `contract' had expired. No such evidence had been produced. Furthermore an establishment cannot be closed without prior permission of learned Labour Court and there is no evidence if any such permission has been obtained or any application for permission has been moved under Standing Order 11-A of the Ordinance. 11. In view of the above discussion and evidence, in my view, the appellant is a 'workman' as defined under the Ordinance and has a right to take his grievance before the learned Labour Court. The Labour Court has already held that the enquiry was illegal and the order of dismissal on the basis of such enquiry was illegal. I see no reason to disagree with this finding of the learned Labour Court. I, therefore, allow the appeal, set aside the impugned order and direct the reinstatement of the appellant with fifty per cent back benefits. The order to be implemented within one month. M.Y.H./1892/Lb. S Appeal allowed.