DECISION This is an appeal against the order of the Labour Court ordering, re--instatement of the respondent with all back benefits.
2. The respondent was in the permanent employment of the appellant. He was originally, appointed as a driver on 1st June, 1965. Subsequently on 1st January, 1968 he was promoted as Head Driver and later he was promoted as Transport Supervisor on 1st July, 1974 on the following terms and conditions :- "Your now salary will be intimated to you after approval by the head office.
You will be entitled to a uniform similar to the one of the catering agents. Please contact Mr. Bhappu who will do the necessary.
In this new function you will be responsible not only for the drivers but also for the servicing of the cars, VW-minibuses, trucks, highloaders and trolleys. Mr. Momin Hussain will assist you.
For the cleaning of the vehicles in and outside, KHITH will delegate a sweeper.
Your driving duties will not be affected."
3. On 27th December, 1976 and 30th December, 1976 he was charge--sheeted for having committed some misconduct in violation of certain orders and instructions issued by the Management. The respondent submitted his explanation to the charge-sheet. This was considered unsatisfactory and, therefore, his service was terminated by way of dismissal on 13th January, 1977 without any inquiry. He served a grievance notice and thereafter approached the Labour Court under section 25-A, Industrial Relations Ordinance.
4. The application was resisted. It was inter alia pleaded that the respondent was not a workman but a Supervisor and he was drawing Rs. 1,093 as his pay per month.
5. Evidence was tendered by both the parties. On the assessment of the evidence and considering the various authorities which were reported before the learned Presiding Officer, it was held that the respondent was a workman and, therefore, his dismissal without inquiry was vitiated.
Consequently, he passed the impugned order. Aggrieved by this, the present appeal had been filed.
6. On perusal of the record and proceedings and bearing the arguments I see no reason to interfere with the view taken by the Labour Court that the respondent was a workman. I have already reproduced the terms and conditions promoting him as Transport Supervisor. In this connection the last duty is very important. It clearly lays down that his driving duties would not be affected. Reading this, there can be no question of any ambiguity regarding the status of the respondent. Although, he was appointed as a Supervisor, yet his duties as Driver continued to remain intact and he was required to perform those duties. So it cannot be said, even for a moment, that as a driver he cannot be treated as a workman.
7. The learned counsel for the appellant referred to the affidavit of the respondent and tried to show that the respondent was not a workman and he was required to drive the vehicles casually at the time of emergency and, therefore, he could not be treated to be a workman but his main duties were of supervisory nature. I have gone through the affidavit and in this connection para. 5 of the affidavit is very important. This reads as under :- "I say that I have been performing the duties of a driver like any other driver in the Swissair, initially in the morning shift, and thereafter in shifts by rotation. I used to pick up and drop other employees in the morning and evening and at the start and close of shifts like other drivers. I used pick up and drop passengers from the Hotels to the Airport and the plane on the ramp nit only passenger cars but also high loaders like any driver. I was issued day to day driving orders like any other driver for performing my duties as a driver signed by the Catering Agents/Officers. I performed the duties of a driver at the start and close of shifts and occasionally during the shift hours like any other driver in the Swissair, and I also used to sit idle like any other driver during the shift hours as the driver's duties are usually at the start and close of each shift, and at times whenever required in between the duty hours, and hardly any of the drivers including myself performed duty of driving vehicles for 8 hours continuously. The period spent in attendance means duty, and all the drivers including myself while waiting for instructions remained idle but remained in attendance which does not mean that this waiting period is not included in driver's duty."
After reading this para. There is no room for doubt that the respondent was a workman and he was working like any other driver. The learned counsel, however, referred me to the portion wherein the respondent had stated that he used to sit idle like other drivers during shift hours and thereby it was intended to show that idleness was repugnant to the status of being a workman. I am unable to accept this contention. It is very unusual that a driver should continue driving the vehicles for all the 24 hours. The mere fact that sometimes there is no duty to perform does not remove the person from the category which he enjoys. The learned counsel also referred me to the affidavit of Mr. Joseph Kuster, Catering Manager who stated that on many occasions he used to drive his own car in case of emergency. By referring to this statement, it was intended to show that this officer could not be treated to be a workman by any stretch of imagination, despite the fact that he used to drive the car. The argument is fallacious on the very face of it. There can be no comparison between the person who drives his own car or even an official in case of emergency and a person who is engaged as a driver and performs that duty.
8. Indeed, the respondent was appointed as Supervisor and was performing those duties but at the same time his duties as driver remained unaffected arid by performing the latter duties, he could still be treated as a workman as defined by the Industrial Relations Ordinance.
9. In the circumstances I have no doubt in my mind that the respondent was a workman and he could not be dismissed from service without an inquiry. The appeal is, therefore, dismissed. It is, however, open to the appellant to hold an inquiry against the respondents on the charge-sheets which had been issued and take such action as may be deemed fit in accord--ance with lave.