1976 PLP 424 (PLC)

2. The facts of the case are that the respondent joined the appellant mills as a watchman on 15‑9‑

69. On 11‑9‑72 Rehmat Ali, Checker took him to the residential quarters for checking. On 1‑9‑72 the respondent was served with charge‑sheet Exh. P. I containing the allegation that he had remained absent without leave for two hours and forty‑five minutes on 11‑9‑

32. On 14‑9‑72 vide order Exh. P. 11 the respondent was dismissed from service. Thereafter the respondent sent a grievance notice for redress of his grievance to the Management of the appellant mills. Since no reply was received the respondent filed the present petition, which was accepted as already mentioned above.

3. The learned counsel for the appellant raised a preliminary objection that the respondent being a watchman was not a workman within the meaning of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 and as such the petition was not maintainable. The learned Court below rejected this objection on the following grounds:‑ "The documentary evidence on the record shows the Management had been treating the petitioner as a workman as defined in the Ordinance 1968. He was charge‑sheeted under Standing Order 15(2) (h) and was dismissed from service under Standing Order 15(2) (iv) of the said Ordinance. If he was not a workman as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, there was absolutely no justification for taking action against him under the provisions of the Ordinance. This petition has been filed under section 25‑A of Industrial Relations Ordinance. The words `worker' used in subsection (1) and `workman' in subsection (6) of this section means a 'worker' as defined in section 2(xxviii) of the Indus trial Relations Ordinance, 1969. Since the petitioner does not fall within the definition of Employer , therefore, be is a workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance. The petition can, therefore, proceed."

4. The respondent in the present case under section 25‑A had brought his grievance in respect of a right guaranteed or secured to him by or under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and therefore he has to establish that he is a workman under that Ordinance, otherwise4ie can not got any relief under that Ordinance. The mere fact that the Management of the appellant mills had charge‑sheeted and dismissed the respondent from service under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 will not stop him from raising the plea that he is not a workman within the meaning of that Ordinance, because there can he no estoppel on point of law. It is well-established principle of law that representation on a question of law does not create an estoppel. The question as to whether an order is illegal or invalid is a question of law and there can be no estoppel on such a question. Further no estoppel can be pleaded against the directions and prohibitions enacted ht statute law Thus where the Legislature declares a contract, a transfer, or any other transaction, to be void, it cannot be validated by resorting to the doctrine of estopped. In view of the above the Management cannot be estopped from raising the plea that the respondent is not a workman within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

5. Now the question for determination is as to whether the respondent was a workman. According to his own evidence he was a watch man.

6. The learned counsel for the appellant contended that under section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward. Since the appellant was a watchman, did not do any manual labour in the discharge of his duties. The learned counsel relied on the definition of labour given in Stroud's Judicial Dictionary, according to which labour is defined as manual labour and not manual work. The true meaning of the labour is that which tests man's muscles and sinews. Thus according to him a watchman is not a workman, because in the discharge of his duties he does not employ his muscles and sinews. In support of his contention the learned counsel relied on the judgments of Industrial Courts in cases :‑ "Sine Cement Workers Union, Rohr! v. The Manager, Rohr! Cement Works Ltd. Rohri 1964 P L C 102; Pak Dyes and Chemicals Employees Union v. Pak Dyes and Chemicals, Ltd. Daudkhel", 1965 P L C 92; Muhammad Ishaq and another v. Zaibtun Textile Mills Ltd. Karachi" 1964 P L C 332, Roshan Din Cheema v. Chairman, Railway Board, Lahore 1967 P L C 444 and Pfizer Employees' Union v. Messrs Pfizer Laboratories Ltd. Karachi 1964 P L C 671, wherein it was held that a member of security staff or a watchman was neat a workman".

7. I have gone through all these cases and find that they all relate to section 2 of Industrial Disputes Ordinance (LVI of 1959) and not to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

8. In view of the latest Industrial Relations Ordinance, 1969 all doubts on this point have been dissolved. "Workman" as per definition contained in section 2(xxviii) of this Ordinance covers all employees of Industrial Establishment, whatever the nature of their duties, and include employees who have been discharged in connection within industrial dispute or whose discharge has led to that dispute. Therefore a member of security staff or a watchman will be covered by the above definition of a workman. In other words he would be held to be workman. I am fortified in this view by the unreported judgment of the Supreme Court in the case Civil Appeal No. K‑6 of 1968.

9. The question still remains to be seen is as to whether a watchman is a workman as defined in section 2(i) of the Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is no doubt true that originally a workman under the above meant any industrial or commercial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward, but this definition has been amended and now it reads as follows :‑ "'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."

10. Thus it will be seen that in place of word 'labour' word 'work has been introduced in the last line. Therefore the definition of labour i Stroud's Judicial Dictionary will not help the appellant and a watchman will be deemed to be performing unskilled work and thus will be covered by the definition of a workman given in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969. In the result the preliminary objection raised by the appellant has no force.

11. On merits it has been admitted by the appellant that no enquiry was held against the respondent and therefore his order of dismissal was rightly set aside by the Court below.

11. I, accordingly find no force in this appeal, which is hereby dismissed.