1994 PLP 497 (PLC)

This is an appeal from the 4cision of the Punjab Labour Court No. 6, Rawalpindi dated 18th of May, 1993, whereby the grievance petition filed by the respondent was accepted and the appellant was directed to reinstate him in service without back benefits.

2. The respondent was employed with the appellant as a Chowkidar in the Security Department. He was dismissed from service with immediate effect on account of misconduct, vide order (Exh. P‑1) passed by the appellant on 14th of December, 1985. The respondent preferred an appeal on 28th of December, 1985. The appellant did not accept it vide his order (Exh. P‑2) passed on 6th of January, 1986. The respondent served the appellant with a grievance notice (Exh. P‑3) on 18th of January, 1986. The appellant vide his letter dated 27th of January, 1986 (Exh. P‑4) intimated the respondent that his grievance notice had no force. On 26th of February, 1986 the respondent filed a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 assailing the validity of his dismissal and praying to his re‑instatement with full back benefits. He alleged that the charge‑sheet the inquiry and the dismissal order offended against the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, that the inquiry against him was conducted illegally as he was not given opportunity to cross‑examine witnesses and to produce his defence and that he had been victimised on account of his trade union activities.

3. The appellant contested the grievance petition controverting the allegations of the respondent and raising a preliminary objection that since the Attock Refinery Limited was covered by the Pakistan Essential Services (Maintenance) Act, 1952, the Labour Court had no jurisdiction in the matter. 4.The learned Labour Court vide its order dated 24th of March, 1986 upheld the preliminary objection of the appellant and returned the grievance petition to the respondent for presentation to the proper forum under the Pakistan Essential Services (Maintenance) Act, 1952. Feeling aggrieved, the respondent preferred an appeal but it was dismissed by my learned preecessor on 29th of April, 1986. However, in a writ petition filed by the respondent, the High Court on the basis of the judgment of the Supreme Court in Civil Appeals Nos. 290 to 293 of 1981 decided on 10th of December, 1988, set aside both the above orders and remanded the grievance petition to the Labour Court for its decision afresh on merits. It was held that the Pakistan Essential Services (Maintenance) Act, 1952 did not affect the adjudicatory powers of the Labour Court.

5. On merits, the respondent examined himself in support of his grievance petition. In rebuttal, Mr. M.A. Zaka who held the inquiry against the respondent, entered the witness‑box as R.W.

1. The learned Labour Court vide its decision dated 11th of December, 1990 dismissed the grievance petition holding that the respondent though a Chowkidar was not a workman'. The respondent filed an appeal from the above decision. My learned predecessor vide his judgment dated 24th of April, 1991 accepted the appeal and setting aside the decision, remanded the grievance petition to the Labour Court for its re-decision after allowing the parties an opportunity to dead evidence on an objection, if raised by the appellant, that the respondent was not covered by the definition of `workman'.

6. After the remand, the appellant by an application raised the objection that the respondent was not a `workman'. This contention was controverted by the respondent. In evidence, the respondent again examined himself as P.W.1. The appellant also again produced Mr. MA. Zaka as R.W.1. The learned Labour Court after appraising this evidence, concluded that the respondent was a `workman' and that the charge of misconduct levelled against him was not proved in the inquiry. On the basis of these conclusions, the impugned decision was passed. Hence this appeal.

7. I have heard learned counsel for the parties and perused the record. The first question which falls for determination is as to whether the respondent was competent to invoke the provisions of section 25‑A of the Industrial Relations Ordinance, 1969. The respondent was an employee of the establishment which is admittedly covered by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to the definition of a `workman' given in section 2(i) of this Ordinance, any person employed to do any skilled or unskilled, manual or clerical work for hire or reward, is a workman. In this connection, the statement of the respondent as P.W.1 is relevant. He deposed as under:‑‑ The above statement remained unchallenged. Learned counsel for the appellant has argued that since the above duty was merely to keep a watch and did not involve any manual labour, the respondent could not be treated as a `workman'. This argument is without force. In this connection, learned counsel for the appellant has cited Abdul Razzaq v. Messrs Ihsan Sons Limited and others (1992 SCMR 505). This authority, however, does not support his argument. At, page 316 of the report, the Supreme Court has quoted with approval the following observations made by a Division Bench of the Sindh High Court in the case re: Rehmat Ali v. The Security Papers Limited and another (PLD 1982 Kar. 913) while holding that a Security Guard was a `workman':‑‑ "However, where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of time as compared to the hours of duties. We cannot be unmindful of the fact that the Labour Laws are beneficial laws provided for the labour class with the object to provide inexpensive and expeditious remedy before a Labour Court and, therefore, the Ordinance being a beneficial enactment is to be construed liberally in favour of the labour class and no restriction can be placed to the scope of the definition of workman, given in section 2(i) of the Ordinance."

8. The above judgment of the Sindh High Court was upheld by the Supreme Court in Security Papers Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 SC 180 wherein it was observed as under:‑‑ "In any case the very idea of a Security Guard involves the notion that the person entrusted with this work is employed principally to protect the staff, installations and buildings of an establishment, so that if an intruder or an unauthorised person enters upon the premises or does an illegal act, the Security Guard is required to intercept such a person and prevent him from doing mischief even by use of force if the occasion so demands. This being the principal duties in view for the appointment of such a person, the fact that no occasion has arisen or such occasions do occur rarely will be no ground to change the nature of his work. It has been said that they also serve who stand and wait."

9. Pakistan Engineering Co. Limited v. Fazal Beg and others (1992 SCMR 2166) also fortifies the above view. Therefore, there is no doubt that the respondent was a `workman' as defined in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

10. Learned counsel for the appellant has next contended that since the Industrial Relations Ordinance, 1969 does not apply to any person employed as a member of the watch and ward, security or fire service staff of an oil refinery according to section 1(3)(g), the respondent was not competent to invoke its provisions in section 25‑A. No doubt, the Industrial Relations Ordinance, 1969 is not applicable to the watch and ward staff of an oil refinery for purposes of formation of trade unions and regulation of relations between employers and workmen, nevertheless Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 incorporates the provisions of section 25‑A of the Industrial Relations Ordinance, 1969 by reference for the purpose of enabling a workman to get redress against illegal termination of his services, or removal, retrenchment, discharge or dismissal. This has been held so in Security Papers Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 SC 180, Sahibzada KA.K. Afridi v. Pakistan International Airlines Corporation and another (1992 SCMR 1379) and Syed Matloob Hassan v. Brooke Bond Pakistan Limited (1992 SCMR 227).

11. Learned counsel for the respondent has contended that since the charge‑sheet (Exh. R‑1), the dismissal order (Exh. P‑1) and the order (Exh.R‑3) appointing an Inquiry Officer were not signed by the Factory Manager, the disciplinary proceedings taken against the respondent were illegal. This point was not specifically raised in the grievance petition. What was asserted was that the charge‑sheet, the dismissal order and the order of appointment of an Inquiry Officer were not issued by the employer under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. This was a vague assertion. There is no evidence on record that the establishment of which the respondent was an employee, was ever declared as a `factory'. The charge‑sheet, the dismissal older and the order of appointment of the Inquiry Officer were signed by the Manager, Personnel and Administration. No evidence was led by the respondent to show that this Manager did not fall within the category of an `employer' and was incompetent to sign the above documents. I, therefore, overrule this objection.

12. As regards the merits, the allegation against the respondent was that on 18th of August, 1985 at about 11.45 a.m. he not only abused but also slapped his colleague namely, Muhammad Hanif in the canteen within the premises of the Refinery. In the inquiry, the complainant Muhammad Hanif deposed to the incident. Mirdad, Chowkidar and Muhammad Ashiq, Helper who were present at the canteen at that time corroborated the complainant. They were cross‑examined but nothing was elicited which could recoil on their veracity. Muhammad Arif, Jamadar and Malik Sarfraz Khan, Security Supervisor who were examined as Court witnesses, also provided corroborative circumstantial evidence. The respondent in defence testified to his innocence. However, he failed to produce any witness in his support in spite of the fact that he had offered to do so in the first instance. In view of the evidence, the Inquiry Officer was perfectly right in holding that the charge of misconduct against the respondent was established beyond any shadow of doubt. The finding to the contrary recorded by the learned Labour Court is, therefore, unsustainable.

13. For the foregoing reasons, I hold that the dismissal of the respondent on the ground of misconduct was justified.

14. In the result, I accept this appeal, set aside the impugned decision and dismiss the grievance petition of the respondent. H.B.T./769/Lb.P Appeal accepted.