1993 PLP 868 (PLC(CS))

1987 PLC 390; 1974 PLC 252; 1985 SCMR 1511; PLD 1986 SC 103; 1977 PLC 640; 1986 PLC 307; PLD 1973 SC 415 and PLD 1970 SC 589 held not applicable. Rifat Usmani for Management. Abdul Majeed for Worker. Date of hearing: 7th December, 1987. These are two cross‑appeals, one filed by Messrs Pearl Continental Hotel, Karachi, while the other is filed by the worker Abdul Hamid Khan, against a common impugned order, dated 15‑1‑1986, passed by Sindh Labour Court No. V, Karachi, who had allowed the grievance petition of the worker, namely, Abdul Hamid Khan under section 25‑A, I.R.O., 1969, directing his reinstatement in service with only 40% back benefits. As, both these cross appeals are against one and same impugned order, therefore, I would also decide these two appeals by this single Decision.

2. Brief facts of the case are that one Abdul Hamid Khan claimed to be a permanent workman in Messrs Pearl Continental Hotel, Karachi, working as a Head Waiter and from such as his duties were of manual nature by setting of the tables in various Restaurants of the hotel, taking orders for the customers personally and serving the food and beverage to the rooms of the guest staying at the hotel, thus, falling within the definition of a `Workman'. He claimed that his services were terminated by the management of the hotel with effect from 1‑2‑1985 without assigning any cause or reason and without even holding the domestic enquiry and affording him reasonable opportunity to explain the faults, if any. Abdul Hamid Khan further claimed that he was victimised by the management only on the facts that he refused to shave off his beard as desired by the management. He claimed that though he served his grievance notice upon the management, which did not impress the management, therefore, he submitted his grievance petition before the learned Labour Court.

3. The management of the Hotel had resisted the petition mainly on the ground that as Abdul Hamid Khan was working as Head Waiter and since his duties and responsibilities were purely of managerial and supervisory nature he could not be termed as workman for the purpose of Standing Orders Ordinance and Industrial Relations Ordinance as he was Incharge of Room Service Department having senior Captains, Stewards, Assistant Stewards and that he was not required to do any clerical or manual work. The management of the had resisted the petition on further ground that Abdul Hamid Khan was drawing his monthly salary more than Rs.800, therefore, under these circumstances he was not a workman to be entitled to maintain his grievance petition under section 25‑A, I.R.O., 1969, which to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order, hence these two cross‑appeals.

5. I have heard Mr. Rafat Usmani, the learned Advocate for the Hotel Management and Mr. Abdul Majeed, the learned representative on behalf of Abdul Hamid Khan, the worker, and have also carefully perused the record and proceedings of the case. At the very outset, I‑would observe here that it is an admitted position that the services of Abdul Hamid Khan were terminated without assigning any cause or reason and also without holding any enquiry into the alleged act or omission. It is also an admitted position on behalf of the management of the Hotel that Abdul Hameed Khan being a Head Waiter was also responsible to serve the food and beverages to the guests sitting at the table and to work for nine hours, even, in the night shifts and that he was not allowed to take lunch or snacks in any restaurant besides the Dinning Hall as it was the policy of the Hotel Management that the Head Waiters could not dine in any restaurant. It is again an admitted position that being a Head Waiter, Abdul Hamid Khan had no powers of hire or fire irrespective of the fact that he was getting a monthly salary of Rs.3,100 plus some allowances. Admittedly there is also a document on record, Exh. 4/B which shows that it was one of the duties to take orders in Room Service in the evening and he was answerable to the Manager of that section. In support of his case, Mr. Abdul Majeed, the learned representative for Abdul Hamid Khan has referred me to the settled principle of Law that the mere fact that the workman was supervising the work of some other clerks and was drawing more than Rs.800 per month would not mean that he is not a workman. He, therefore, placed his reliance on a Decision of this Tribunal in Appeal No. KAR‑84/83 and also on a case of Dost Muhammad Cotton Mills v. Abdul Ghani reported in PLD 1975 Kar.

342. In view of this admitted factual and legal position, I would hold that Abdul Hamid Khan was workman, therefore, he was entitled to maintain his grievance petition before the learned Labour Court. Thus, I would maintain the impugned order holding it as well‑reasoned as finding nothing illegal or wrong with it. On the other hand Mr. Rafat Usmani, the learned Advocate for the Hotel management has reiterated his pleadings, which he had submitted before the learned Labour Court in support of his case. Mr. Usmani, the learned Advocate has placed his further reliance on the case, reported in 1987 PLC 380; 1974 PLC 252; 1985 SCMR 1511; PLD 1986 SC 103; 1977 PLC 640 at page 642; 1986 PLC 307; PLD 1973 SC 415 and PLD 1970 SC

589. After a careful examination of these reported cases, I am of the view that they are quite distinguishable to the facts and circumstances of the present case, hence, they are not applicable to the present cross‑appeals.

6. For the reason stated by me above, I see no reason to interfere with the impugned order and I would maintain the same. Worker Abdul Hamid Khan is directed to be reinstated in service with 40% (forty per cent.) back benefits forthwith. I would, therefore, dismiss both these cross‑appeals. A.E./1155/Lb.S Appeals dismissed.