1970 PLP 351 (PLC)

3. On behalf of the respondent it was contended that dip appellant being employed in the Watch and Ward Department of S. Ir. T. E. Limited, he was not a workman and, therefore, the application was not maintainable. At any rate, it was contended on behalf of the respondent that the services of the appellant were terminated in terms of his service and, therefore, it was not a violation of section 37 of the repealed Ordinance.

4. The learned Chairman of the Industrial Court held that the appellant was not a workman and that the services of the appellant had been terminated on the ground that he had attained the age of 58 years. It was a case of simple termination of 'service and no violation of section 37 of the repealed Ordinance was involved.

5. Mr. A. Majeed, the learned Representative for the appellant has raised a number of points before me, which I propose to dispose of separately.

6. It was contended, in the first place, that the services of the appellant were never terminated. There is not much force in this contention. The letter dated 22nd August 1969, addressed to the appellant is very clear. It denotes that on the failure of the appellant to produce documentary evidence his services were terminated with immediate effect.

7. In the second place, it was submitted that the appellant was not given an opportunity to lead evidence. There is nothing on the record to show that the appellant ever wanted to produce any further evidence than what he had already produced in the shape of the letter addressed by the respondent to him. It was submitted by Mr. Ghulam Hasan, the learned Representative for the respondent that the appellant never requested the Court to produce any evidence. In these circum stances, it cannot be said that the appellant was not given an opportunity to lead evidence.

8. It was submitted that the appellant was a workman within the meaning of the definition given in section 2 (u) of the repealed Ordinance. The relevant portion of the definition, which requires interpretation, reads as under: but does not include any such person-- (iii) who is a Chowkidar (guards‑man) or is employed in service, declared by Government to be watch and ward or security service; (iv) (v)

9. In this connection, Mr. Majeed, in the first place, contended that there is no evidence to show that the appellant was a Chowkidar. There is, not much force in this contention. The burden of proof lay, on the face of the everment made by the respondent, on the appellant that the appellant was not a Chowkidar. The appellant did not lead any evidence to show as to what was his duty. Admittedly, the appellant was employed in the Watch and Ward Department as a Sepoy. The respondent, in the written statement, stated as under:‑ "It is submitted that the applicant having been employed as a Watch and Ward Sepoy (Guards‑man/Chowkidar), he is excluded from the scope of the definition of the term workman."

10. In the reply to the written statement, the appellant' never alleged that he was not performing the duties of a Watch man. In these circumstances, the finding arrived at by the learned Court cannot be challenged.

11. Mr. Majeed also contended that S. I. T, E. Limited has not been declared by the Government to be a Watch and Ward or Security Service and, therefore, the appellant was a workman. There is no force in this contention. The word "or" already reproduced in. section 2 (u), is disjunctive. It cannot be A read as "and". If a person is performing the duties of Chowkidar, he is not covered by the definition of workman. The Legislature also gave power to the Government to declare certain service as Watch and Ward or Security, so as to exclude its employees from the definition of workman.

12. It was contended by Mr. Majeed that the Court having held the appellant to be not a workman, should not have decided the case on merit. There is no force in this contention. The learned Court was within its jurisdiction to decide the case on merit as well. It was submitted by Mr. Majeed that the respondent has altered the terms and conditions of the service of the appellant during the pendency of the industrial dispute to the disadvantage of the appellant. It was suggested, in this 1connection, that the retirement of the appellant on his attaining the age of 58 years was a new condition of service, which did not exist when the appellant was appointed) ion 1967. There is no force in this contention. It was never the case of the appellant Karim in his application under section 38 of the repealed Ordinance that Sind he could not be retired on attaining the age of 58 years. All that Industrial he disputed was that he had not attained the age of 58 years, Trading when he was retired. This is clear from para.11 of the Estates Ltd. application, which runs as under:- "That the applicant submits and asserts that he is not of 58 years as alleged and that the applicant has been dealt with arbitrarily and whimsically".

13. It was submitted that the appellant had not attained the age of 58 years, and that the certificate of the Maulvi should have been accepted by the Department. This Court cannot sit as a Court of Appeal on the finding arrived at by the Department as to the age of the appellant. The respondent was within its rights not to accept the certificate given by the Maulvi in preference to the examination conducted by its own Doctor.

14. Lastly, it was submitted that the removal of the appellant from service did amount to the violation of the provision of section 37 of the repealed Ordinance, inasmuch as it amounted to alteration of the terms of service of the appellant. There is no force in this submission. The respondent having come to the conclusion that the appellant had attained' the age of 58 years, he could be removed from service in terms of his employment. The appellant did not lead any evidence `to prove that his' removal from service was mala fide on the part of the respondent. In this connection, reference may be made to Zeal Pak Cement Factory Limited v. The Chairman, West Pakistan Industrial Court, Lahore(1965 P L C216). It was held in that case by the Supreme Court of Pakistan that the action of the Factory in respect of the employees retrenched as surplus to requirements being bona fide, it did not attract the control of the Industrial Court under section 30 of the Industrial Disputes Ordinance, 1959. Section 30 of the Ordinance of 1959, is equivalent to section 37 of the repealed Ordinance. In the present case, there is no evidence to show that the respondent C acted mala fide in terminating the services of the appellant. The respondent removed the appellant from service as he had attained the age of 58 years. The appeal, for the reasons given above, is dismisses.