P L D 1988 Supreme Court 180 (PLP)

ZAFFAR HUSSAIN MIRZA, J‑‑This appeal by special leave arises out of the judgment of a Division Bench of the Sind High Court dated 11th March, 1982, whereby the constitutional petition No.D‑139/ 1981 filed by Rehmat Ali, respondent No.2 herein, was accepted and the order of the Sind Labour Appellate Tribunal, holding that the said respondent was not a "workman" within the meaning of the Standing Orders Ordinance, 1968, was quashed.

2. The facts of the case are admitted. Respondent No.2 was a permanent employee of the Security Papers Limited, the appellant herein, as a Security Guard since, 1969. He was charge‑sheeted on 28th August, 1979, on the allegation that he had incited the workers at the front gate of the Mills in order to sponsor an agitation against the management. On this charge‑sheet a domestic enquiry followed which resulted in the dismissal of respondent No.2 from service on 12th December, 1979. Afterwards respondent served a grievance notice against the employer under section 25‑A of the Industrial Relations Ordinance and took the matter to Labour Court. In the course of the proceedings before the Labour Court, the appellant raised the question that respondent No.2 was not a workman within the ambit of section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as "the Ordinance"). By order, dated 13th September, 1980, the 4th Sind Labour Court allowed the application of respondent No.2 and ordered his reinstatement with full back benefits.

3. Being dissatisfied, the appellant challenged the order in an appeal before the Sind Labour Appellate Tribunal, Karachi which accepted the same by its order, dated 1st February. 198r and held that resoondent No.2 being a Security Guard was not a "workman" within the definition contained in section 2(i) of the Ordinance. Thereupon, respondent No.2 challenged the order of the Appellate Tribunal in the constitutional petition referred to above. The High Court on examining the question whether respondent No.2 was a workman took the contrary view and held that the said employee was a workman, with the result that the High Court set aside the order of the Appellate Tribunal, restoring that of the Labour Court.

4. Leave was granted by this Court in order to examine the question whether the interpretation of the definition clause of the term "workman" under Standing Order 12 (3) of the Ordinance has been correctly construed by the High Court in relation to the Security Guard employed in the establishment of the appellant /company.

5. Now it is common ground that the Industrial Relations Ordinance, 1969, by its own force is not applicable to the case of the respondent because by virtue of section 1(iii)(e) the said Ordinance is expressly not applicable to any person employed by the Security Papers Limited. However, the Standing Order Ordinance is admittedly applicable to the establishment of the appellant and therefore all those employees who fall within the definition of "workman" employed by the appellant can avail the. protection against termination of employment extended by Standing Order

12. The only question is whether respondent No.2, having regard to the nature of his duties as a Security Guard falls within the ambit of the term "workman" as defined by section 2(i) of the Ordinance which is in the following terms: ‑ "Section 2(i) '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 may be stated that before the Labour Court the parties had produced evidence, inter alia on the question as to what was the nature of duties to be performed by respondent No.2. The Labour Court in its order referred to the evidence produced before him on this question in the following passage: ‑ "Before discussing the case law it seems proper and reasonable to deal with the evidence on this point given by respondent's own witnesses. For instance the Enquiry Officer Barkat Ali Udani stated that Security Guard performed his duties assigned by the "lecurity Controller. He further added that some times he was placed on watch duty at the gate and some times on round duty. The second witness Commander Bashir Ahmad in his cross‑examination conceded that Security Guard in the Mills was required to search the person of workman entering into or leaving the Mills. He further admitted that his manual labour or work was involved in the performance of duties. The evidence of remaining witnesses is not worth while in the context of the point under consideration." On the basis of the aforesaid evidence the Labour Court recorded its conclusion as under: "As to whether the applicant was doing any manual work in the performance of his duties as Security Guard, I am clear in my mind in holding that in view of the clear admission by respondents witnesses themselves and the nature of duties discharged by him. he would definitely fall within the category of a workman as defined in the Standing Orders Ordinance. The old view based on the definition of workman in the Industrial Disputes Ordinance 1939 does not hold the field because the watchman was expressly excluded from the category of workman. The word manual labour has been defined in the Black's Law Dictionary to mean work done with the hand, labour performed by hand or by the exercise of physical force, with or without the aid of tools and of horses or other beasts of burden, but depending for its effectiveness chiefly upon personal muscular exertion rather than' upon skill, intelligence or adroitness. Under the Standing Orders Ordinance if an ordinary labourer, a clerk, a mason or for that purpose even a peon in an industrial or commercial establishment is considered to be a workman it does not stand to reason as to why a watchman should not be treated at par with them, particularly when he does manual work."

6. On the other hand the learned Appellate Tribunal took the contrary view for the reasons that appear in the following passage of its order:‑ "It has been admitted by the respondent that he was working as a Security Guard. According to the evidence on record the main duties of a Security Guard are to search the workmen entering into or leaving the mills premises. It is difficult to view such work as involving manual work of the nature contemplated by the definition of 'workman' as contained in the Standing Orders, though undoubtedly search is conducted with hands. Apart from searching of a workman, the duty of a Security Guard would be to keep the unauthorised persons out of the premises. In fact that appears to be the main function of the Security Guard. The consistent view of this Tribunal has been that a watchman, Chowkidar or a Security Guard does not fall within the definition of a 'workman' as given in the Standing Orders as he is not ordinarily employed to perform manual or clerical work."

7. The main reason that prevailed with the learned Judges of the Division Bench to hold that respondent No.2 was a workman appears in the following passage of the impugned judgment:‑ "In Constitutional Petition No.D‑139 of 1981, it is an admitted position that the petitioner as a Security Guard used to use his hands while searching persons who entered into and left the factory. On this point there is an admission of respondent No. l's employee who appeared as a witness, namely, the Inquiry Officer Barkat Ali Budhani. In this view of the matter, we are inclined to hold that the above petitioner is covered by the definition given in the Ordinance."

8. On behalf of the appellant the view taken by the Sind Labour Appellate Tribunal has been supported and it has been urged that the nature of duties performed by respondent No.2 as a Security Guard mainly involved the work of guarding the buildings and installations of the appellant's Mills which consists of merely keeping a watch and this does not involve any manual labour with hands. We asked the learned counsel for the appellant if he could produce before us any document on the record of the appellant which discloses the charter of duties assigned to respondent No.2 but the learned counsel was unable to do so and merely stated that duties of the Security Guard are well known. It is, however, difficult to give a fixed connotation to the duties performed by a person employed as a Security Guard by an establishment. Obviously different employers may assign particular types of security duties to their Security Guards. No general rule can, therefore, be laid down in this behalf. 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. In General Manager, Hotel Intercontinental and another v. Bashir A Malik etc. (P L D 1986 S C 103), the identical question of law came up for consideration of this Court. Referring to the definition of "employer" in the Ordinance in juxtaposition with the definition of 'workman' it was observed:‑ "A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of 'workman'. The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of 'employer' then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of 'workman', namely, 'skilled or unskilled, manual or clerical labour' need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term 'workman' without having to resort to the exceptions." In the following passage the test for determining the question whether an employee was or was not a workman was laid down:‑ "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."

9. Having regard to the principles postulated in the aforesaid judgment of this Court, we feel that in the present case there was evidence on record which indicated that respondent No.2 was required to do manual labour as an essential part of his duty. Admittedly the routine of his duties involved the search of workers who entered the premises of the Mills or left therefrom. As this is a question, of fact and the finding recorded by the Labour Court remains in the field undisturbed, there was no justification for the Appellate Tribunal to hold that the Security Guard as a rule cannot be regarded as a workman. In view of the test laid down by this Court such a question has to be decided in each particular case in the light of evidence brought on record. Learned counsel for the appellant referred us to Rab Nawaz v . Sind Labour Appellate Tribunal and others (P L D 1987 Karachi 175), in which, having regard to the nature of duties done by him, an employee who was employee as a Chowkidar in the Rice Export Corporation of Pakistan Limited was held to be a workman within the meaning of the Ordinance on the same principles. ‑In this case the learned .fudges of the Sind High Court referred to an unreported judgment of this Court in the case of Organizqtjon of Karachi Port Trust Workers v. Karachi Port Trust etc. (Civil Appeal No. K‑6 of 1968), wherein on the basis of the definition of the word "workman" given in section 2(n) of the Industrial Disputes Ordinance 1959, it was held that the Chowkidars were workmen, and pointed out that the said definition was in pari materia with the definition of "workman" in the Ordinance.

10. It was half heartedly argued that if Security Guard was held to be workman there will arise problems for the appellant company in so far as they would be entitled to be members of the Workers' Union and such a situation will not be conducive to the national interest because the appellant is involved in the sensitive production of security papers. This argument appears to us to be misconceived, for the reason, as pointed out by the learned counsel for the respondent that the Industrial Relations Ordinance not being applicable to the appellant's establishment, there is no question of forming workers' unions.

11. For the foregoing reasons we find no merit in this appeal which is accordingly dismissed with no order as to costs. M.B.A./S‑107/S Appeal dismissed.