2001 PLP 511 (PLC)

Nishat Warsi for Respondent. Date of hearing: 23rd April, 2001. This appeal has been preferred by Haii Muhammad, Ismail Mills Limited, hereinafter referred to as the Appellant Mills, from the Order dated 19‑2‑1999 of the Sindh Labour Court No.VI, Hyderabad whereby the grievance petition filed by respondent Saeed Ahmed, hereinafter referred to as respondent, was allowed. The facts of the case briefly stated are that respondent Saeed Ahmed was employed as Foreman in the Appellant Mills on 13th August, 1984. He was said to be performing his duties with dedication and honesty giving no cause of complaint to his employers. However, on 8th May, 1997 after completing his normal duties the respondent was doing overtime when at about 10.00 p.m. the General Manager of the Mills arrived there. After abusing the respondent left and right the General Manager demanded his resignation. When he wanted to know the reason for his resignation. he was physically pushed out from the Factory gate. Despite that he kept coming to the Factory for his duties but he was not allowed‑ to enter the Factory premises. He was served with two charge sheets, one relating to the loss caused to the mills by his negligence and another of his unauthorised absence. The respondent replied to the charge‑sheets but obviously did not satisfy his employers who ordered enquiry against him and appointed Mr. Kamran Ahmed Siddiqui as Enquiry Officer. The respondent thought the Enquiry Officer to be prejudiced against him and, therefore, called for his change. Accordingly he was replaced by another Enquiry Officer Mr. Aish Muhammad. Though he kept attending the enquiry proceedings whenever he was called upon to do so and answered questions put to him in course of enquiry yet his statement was not recorded nor was he allowed to examine his witnesses. Ultimately Enquiry Report, dated 15th October, 1997 was submitted wherein the respondent was held guilty and on the basis of that report he was dismissed from service.

2. The respondent sent grievance notice; dated 5th November, 1997 to the Appellant Management by Registered Post but it was not replied. Thereafter, he filed grievance. petition on 11‑12‑1997 praying for his reinstatement and payment of full back benefits.

3. In the Reply Statement the Appellant Management took some Legal Objections including the one that the respondent being‑ Foreman was not a workman and therefore, Labour Court had no‑jurisdiction. According to their version of the, case the respondent's duties were of, supervisory, nature. Besides this the Appellant Management have denied the factual allegations of the respondent.

4. In support of his case respondent filed his affidavit‑in‑evidence and in support of the case of Appellant Mills their Labour Officer Shah Alam filed his affidavit‑in‑evidence. I heard the arguments of Mr. Nishat Warsi Advocate of the respondent and Mr. Abdul Ghani Khan, Advocate for the Appellant Mills. I also went through the relevant record available in the case file.

5. The learned Labour Court struck several issues for decision. But the most crucial Issue on which the fate of the case was entirely dependent was the Issue relating to status of the respondent. The parties were at variance on this issue. The respondent's own version was that his status was that of workman whereas Appellant Management took the plea that since respondent was a Foreman and his duties were of supervisory nature, he could not be regarded as workman. However, the burden of resolving this controversy was obviously on the respondent. No doubt he stated in his grievance petition as well as affidavit‑in‑evidence that he was a workman within the meaning of labour laws. Further, he was doing manual labour inasmuch as that he was repairing defects in the machine. He was neither Head of Department nor had he power to grant leave to workers of his Department. He was cross‑examined on his affidavit‑in‑evidence. He admitted in course of his cross‑examination that he was a Foreman, drawing salary of Rs.8,000 per month. Though he has denied that his main duty was of supervisory nature and he used to supervise the work of workers working in his Department, yet with cunning innocence he showed ignorance whether there were separate Muster Rolls for workers and Officers and whether Salary Sheet of Officers was different from that of workers. How can it be believed that the person working as a Foreman for so many years did not know this simple fact about the existence of separate Muster Rolls for the Officers and Workers and different Salary Sheets for such two classes of employees. I am of the view that he had deliberately suppressed this information because if he 'had admitted that there were separate Muster Rolls and different Salary sheets it would have gone against him because he seems to be signing different Muster‑ Rolls from that of workers and getting salary on different Sheet from that on which workers were paid the salary. He admits his signature on Exh.R/6. This is obviously Attendance Register separately maintained for (Staff) Officers class. Among others it carries the signature of the respondent. So far workers are concerned their Attendance is invariably marked by word 'P' and they do not put their signature against their names as evidence of their presence like the Officers. He has admitted in cross -examination that he was not a member of any Union nor had he any connection with any association of workmen. This admission goes to show that he was not a workman. Again it has been noted that he had made inconsistent Statements in course of cross‑examination with regard to his defence witnesses. In the first instance he has stated that he was never asked to produce any witness in defence but subsequently he turned round and made Statement that it was correct that he had been required in writing to bring his defence witness. Such inconsistency only reflects on his character that he was capable of speaking falsehood, and hence not believable. All what the respondent stated about his manual work was that he used to repair the machine. No doubt repairing of machine involved manual labour but for the employee like the respondent (being a Foreman) such a manual labour was only incidental and, therefore, by that reason alone he cannot be put in the category of workman. He has not listed or further elaborated his other duties of manual nature.

6. Coming to the cross‑examination of the Appellant Management's witness Shah Alam it is found that he has falsified the respondent on the point that he was doing overtime; Secondly he has stated in course of his cross‑examination that Time‑Keeper notes the attendance of workmen whereas staff members who are not workmen put their signatures on Muster Roll. Thus, he confirms the position of separate Muster Rolls for workers and the staff members as has been pointed out above.

7. Recently I have decided Appeal No.HYD‑155 of 1999 wherein the issue for decision was whether Foreman was a workman. Two cases were cited before the one of my Predecessor Mr. Justice (Retd.) Z.A. Channa 1981 PLC 969 and another of my other learned Predecessor Mr. Justice (Recd.) Kazi Mushtak Ali 1997 PLC 443 and 1996 PLC

182. In the opinion of Mr. Justice (Retd.) Z.A. Channa Foreman was not entitled to file or maintain grievance petition as he did not fall within the definition of workman whereas Mr. Justice (Retd.) Kazi Mushtak Ali expressed his view that foreman could be a workman because of his doing manual work and further he was not assigned any Supervisory duties. Agreeing with my first learned predecessor Mr. Justice (Retd) Z.A. Channa I held the view that Foreman was not a workman and if he did some manual work it may be incidental to his main supervisory job. Relying on the said case of the views of my learned predecessor Mr. Justice (Retd) Z.A.Channa I reiterate the same view in the present case that respondent Saeed Ahmed by virtue of his appointment as Foreman and for the reasons given above was not a workman. Consequently the grievance petition filed by him was not maintainable. Accordingly I am sorry I cannot support the findings of the learned Labour court and therefore the order of the said court whereby the grievance petition filed by the respondent was allowed with direction of reinstatemnent and payment of full back benefits is here by set aside and the appeal filed by the Appellant Management is allowed. H.B.T.46/K(L.Trib) Appeal allowed.