' FAZLUR REHMAN KHAN, J---As these two Labour Appeals No,31 of 2004 and 32 of 2004 and Labour Complaint No,12 of 2004 arise out of the same judgment/order dated 20-9-2004 of the learned Presiding Officer, Labour Court, Peshawar, the same are therefore, disposed of by this single judgment.
2. The brief facts, giving rise to these appeals and complaint are that Muhammad Jan (hereinafter referred to as the Respondent) was appointed as Ramp-Supervisor in the appellant's establishment. Initially, the respondent was posted at Karachi. However, by an order-dated 21-12- 1994, he was transferred and posted at Peshawar. In the meantime, he was promoted as Assistant Ramp Officer. It is alleged by the respondent that during his posting at Peshawar, the General Manager of the appellants establishment (respondent No,3 herein) developed certain ill-wills and managed to terminate his services, allegedly on the ground of being surplus, through there was neither any re-organization in their establishment nor any such eventuality and in fact, the removal order of the respondent was the result of unfair labour practice. It is further alleged by the respondent that juniors to him were retained in service of the establishment but he was removed from service as against the principle of last come first go and that also he was provided no chance of hearing. The respondent, therefore, served the appellants with grievance notice on 28-1-2004 but the same was rejected vide letter dated 6-2-2004. The respondent then filed grievance Petition before the learned Presiding Officer, Labour Court, Peshawar, who vide judgment dated 20-9-2004 accepted the same to the extent that the respondent was directed to be reinstated on his original post of Ramp-Supervisor with full back-benefits.
3. The appellants, feeling aggrieved of the impugned judgment, have filed Labour Appea.1 No,31 of 2004 for setting aside the impugned judgment. Similarly, the respondent has also filed Labour Appeal No,32 of 2004 for modifying the impugned judgment to the extent of allowing his reinstatement on the post of Assistant Ramp Officer. He has also filed Labour Complaint No,12/2004 for initiating contempt of Court proceedings against the appellants for not implementing the judgment/order dated 20-9-2004 of the learned Presiding Officer, Labour Court, Peshawar.
4. I have heard Mr. Nisar Ahmad Khan, Advocate, for the appellants-establishment, Mr. Ejaz Anwar, Advocate, for the respondent and have also perused the record.
5. In support of the appeal, the learned counsel for the appellants contended firstly; that it was fully proved by the evidence on record that the respondent was performing. Duties of an administrative nature, having subordinates, working under him and drawing a pay of Rs,9778 per month, as such, he does not fall within the definition of workman, as given in S.2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, the learned Labour Court had no jurisdiction to entertain the grievance Petition of the respondent. However, this argument is without force. No doubt, the respondent was drawing a pay of Rs,9778 but exhibit RW-1/S is a copy of the duties and responsibilities of Ramp Supervisor, perusal of which, shows that the duties of Ramp Supervisor and mainly of manual nature and a few of them are auxiliary or accidental thereto. It is admitted at the bar that the duties and responsibilities of the Assistant Ramp Officer are similar to those of the Ramp Supervisor. In the case reported in 1992 PLC 424, their Lordships of the Hon'ble Supreme Court of Pakistan have held that it is the nature of work done by the employee that would be essential and fundamental consideration for determining the question and not his designation, which is not conclusive. In his statement before the learned Labour Court, Ahmad Khan (RW.1) while appearing as witness of the appellants has stated in cross-examination that the respondent was already upgraded to Grade S-1 by the time the grade was revised. He has further stated that the category of S.1 is consisting of Assistant Cargo Officer, Assistant Ramp Officer, Assistant Administrative Officer and Accountant. He has also stated that whenever the respondent performed duties after his general shifts, he was allowed over-time and that the officers' categories are not allowed over-time allowance. However, they are allowed extra duty allowance.
6. Besides, in the pay slip, Ex.RW1/X-1, the designation of the respondent has been shown as Ramp Coordinator/Supervisor and as already stated that duties of Supervisor are the same as those of Assistant Ramp Officer and in the case of Nafeeul Hussain Siddiqui v. Messrs Shaheen Airport Service (1989 PLC 76), the appellant before the learned Labour Appellate Tribunal Sindh, was a Ramp Coordinator and his services were terminated and the question before the learned Tribunal was as to whether, he was a workman or not and it was held by the learned Tribunal that the duties of the appellant were manual in nature and not accidental to any main work of management and supervisory nature. Accordingly, he was held to be a workman and on appeal, the Hon'ble Supreme Court of Pakistan in the case reported as Messrs Shaheen Airport Service v. Nafees-ul-Hassan Siddiqui and another (2001 PLC 737) upheld the finding of the learned Tribunal. Accordingly, it is not only abundantly proved from the evidence on record but also on legal parlance that the respondents is a workman and the first arguments of the learned counsel for the appellant is hereby rejected.
6-A. The learned counsel for the appellants contended secondly; that the services of the respondent have been terminated simpliciter due to abolition of his post of Assistant Ramp Officer, which had become B redundant to their establishment, as such, the learned Labour Court has wrongly reinstated him. However, this arguments is also without force. In his cross-examination, RW-Ahmad Khan has stated that:-- "It is correct that the respondent-establishment has its Head Officer at Karachi. It is correct that the Karachi Head Office control all the SAPS Stations at Karachi, Lahore, Islamabad and Peshawar and the employees of the appellants at Peshawar are transferable to other stations."
' In the above circumstances, if the services of the respondent was to be terminated due to retrenchment/redundancy, then it was incumbent upon the appellants to have prepared a list showing that the respondent was the last employed person and had to go first. It is well settled law that in the case of retrenchment/redundancy, the last come has to go first. This is provided by S.13 of the (West Pakistan) Industrial and Commercial (Standing Orders) Ordinance, 1968 that:-- "Where any workman is to be retrenched and he belongs to a particular category of workman, the employer shall retrench the workman who is the last person employed in the category. "
(See also (1) 1980 PLC 1253, (2) 1988 PLC 457, (3) 1993 PLC 870 and (4) 1997 PLC 111) but as the appellants have failed to show that the respondent was the last person appointed as Assistant Ramp Officer and in case of retrenchment/redundancy, he was to go first, this argument of the learned counsel for the appellants is also rejected.
7. The learned counsel for the appellants lastly argued that the learned Labour Court has acted beyond its powers and in unprecedented manner directing reinstatement of the respondents to a lower post, against which, he had no right or claim. This is also the arguments of the learned counsel for the respondent that in case of acceptance of his grievance petition, the learned Labour Court had to reinstate the respondent as Assistant Ramp Supervisor. As the appellants have failed to show that on account of the retrenchment/redundancy in their establishment, the respondent was the last person employed and had to go first, the argument of the learned counsel for the respondent would prevail.
8. So far as the complaint for initiation of contempt proceedings against the appellants is concerned, due to the pendency of the appeal of the appellants and also that of the respondent, no contempt has been committed. Accordingly, this application is without merits.
9. As a result, the appeal of the appellants is dismissed. However, the appeal of the respondent is accepted and it is directed that he shall be reinstated in service as Assistant Ramp Officer with all back-benefits. The complaint for contempt also stands rejected.