The services of the respondent, who was appointed as "Operator Incharge" in the appellant's Establishment with effect from 1st March, 1976, were terminated with effect from 21st October, 1979, vide the appellant's Establishment's letter, dated 24th September, 1979. The respondent challenged the termination of his services before the learned Vth Labour Court by way of a grievance petition.
The appellant's Establishment resisted the respondent's grievance petition on the ground, firstly, that as it had never employed 20 or more workmen, the Standing Orders were not applicable to it or its employees, and secondly that the respondent was not employed to do any manual or clerical work but was employed in a supervisory capacity, and hence was not a workman for the purposes of the Standing Orders. The learned Labour Court repelled both these contentions of the appellant's establishment and has allowed the respondent" grievance petition and directed that the respondent be reinstated in service but has not awarded his back benefits except pay for the period of leave granted to him. Aggrieved by this decision, the appellant's Establishment has come up in appeal to this Tribunal.
2. Mr. Zamirul Hassan, the learned Representative for the appellant's establishment, has assailed the impugned decision of the learned Labour Court, on the grounds -
(1) that there was no evidence before the learned Labour Court to show that at any time 20 or more persons were employed by the appellant's Establishment ; and
(ii) that the evidence on record clearly establishes that the respondent was not employed to do any manual or clerical work and was, therefore, not a workman for the purposes of the Standing Orders.
3. On the first point, namely, whether 20 or more workmen were employed by the appellant's Establishment, the learned Labour Court has relied on, firstly, the evidence on the respondent workman, Inayatullah Khan, and secondly, the entries in the Payment Register of the appellant's establishment for the month of August, 1978, which indicate 20 names. The respondent, no doubt, in his additional affidavit, filed before the learned Labour Court on 3rd January, 1978, gave names of 19 persons, alongwith their designations, who were employed in the appellant's Establishment at the time of his removal froni service, and also gave, in paragraph 9 of his affidavit, names of 8 other persons together with their designations, who, according to him, have been removed from service about 4 months before the termination of his employment, but in his cross-examination, he gave a different picture and state as follows :- "Mr. Munir Haider was engineer. It is not correct that I was his subordinate. He has left service of respondents but I cannot say that he left it on 31st December, 1978. Mr. Nasim Haider was brother of Mr. Muneer Haider and he also left the service of respondents alongwith Mr. Muneer Haider. It is correct that correct name of Mr. Saeed Bhai is .Saeed Abbas (Serial No, 19, page 2 of Exh. 3). I cannot say if Mr. Saeed Abbas left service in June, 1977. I do not know if Bashir Ahmed (Serial No, 15) left service in December, 1978. I do not know that Nazakat (Serial No, 5, para. 9) joined in service in February 1977 and left service in April, 1977. I do not know that Saleem (No, 18, para. 7) left service on December, 1978. I also cannot affirm or deny about the resignation of Joseph (Sr. No, 4) or of Ali Abbas (Serial No, 3). Asif and Ahmed had not left service during my time. I cannot say that Khushnood (No, 3 and Mahmood (No, 5) joined service on 1st December, 1978. I cannot say that Mehdi joined service on 17th February, 1979. It is wrong that Mushtaq (No. 1) Azhar (No, 14), Sabo (No. 1 para. 9) and Ayub bad never worked with the respondents."
4. As regards the number of employees in the appellant's establishment in August, 1978, which is one of the circumstances relied upon by the learned Labour Court for coming to the conclusion that the number of employees in the appellant's establishment was more than 20, it may be pointed out that this evidence was totally irrelevant for the purposes of this issue, as who has to be considered is the number of employees in the establishment during the 12 months immediately preceding the termination of services of the workmen concerned. Since the services of the respondent were terminated on 24th October, 1979, only the period of 12 months immediately preceding the said that namely the period from 24th October, 1978, upto 24th October, 1979, was relevant and not the prior point to that, including the month of August, 1978. It may further be mentioned that the learned Labour Court, failed to consider that all employees of an establishment are not necessarily workmen for the purposes of the Standing Orders and what has to be established is that during the relevant period there were 20 or more "Worrall" employed in the appellant establishment. All examination of the entries in the payment Register for the month of August, 1978, shows that the 20 names given in that month include the Managing Director of the establishment and the Engineer in the establishment. Obviously, these two persons cannot be considered to be workmen for the purposes of the Standing Orders. Therefore, even if the number of workmen in the month of August, 1978, had been relevant, according to the payment Register, the number of such workmen during that month was only 18.
5. It was held by this Tribunal in the case of Associated Industries Corporation v. Muhammad Sarwar and others , that where a definite plea has been raised in the written statement of the employer disputing the application of the Standing Orders and stating that the number of employees in the establishment is less than 20, the burden of proof of establishing that more than 20, workmen are employed or were, during the relevant period, employed in the establishment lies on the worker. This view has been consistently followed by this Tribunal in the instant case, not only the respondent has failed to discharge this burden of proof, in spite of the fact that the appellant establishment categorically denied that the number of workmen employed by it at any time was1 20 or more or that the Standing Orders were applicable to it, but further, the appellant's establishment led positive proof to show that their contention in this behalf was correct, and the plea of the respondent was not correct. The appellant's establishment has led 2 pieces of evidence in this behalf. The first piece of evidence consists of the lists of employees in the appellant's establishment during the period from September- 1978 to June, 1979, we were paid through the Bank. It appears that during this period the practice in the appellant's establishment was that the employees were paid through the Bank. The respondent himself, in his cross-examination, has admitted that existence of such practice. The lists for this period, which has been certified by the Habib Bank, indicate that at no time the number of workmen in the appellant's establishment was 20 or more. The second piece of evidence adduced by the appellant's establishment is the Payment Register for the period from July, 1979, upto December, 1979. This register not only indicates the names of the persons working in the appellant's establishment, but also gives their designations, the emoluments payable to them, and also has their signatures on Revenue stamps against the amounts or payments received by them. The name of the respondent, as also his signatures on revenue stamps, appear in the Payment Register during the period of his employment. As such, the genuineness of the payment register cannot be disputed. No doubt, the respondent has claimed that in addition to the persons whose names are iisdicated in the payment register there were other employees who were paid on vouchers, but there is no evidence in support of this assertion on the part of the respondent. Neither any such worker was examined by him nor there is any other material on record from which such inference could be drawn. I am, therefore, of the view that not only the respondent has failed to establish that at the relevant time 20 or more workmen were employed in the appellant's establishment, but on the contrary there is positive evidence to indicate that during the relevant period less than 20 workmen were employed in the appellant's Establishment.
6. On the second issue, namely, whether the respondent is a workman for the purposes of the Standing Orders and consequently entitled to maintain a grievance petition against the termination of his services, again the learned Labour Court appears to have misappreciated the evidence in the case. As was pointed out by this Tribunal in the case of Johnson and Johnson Ltd. v.
Zubair Abmad and other , the burden, of proof whether a person is a workman for the purposes of the Standing Orders is on such person. In the instant case, the respondent has failed to discharge this burden. An employee will be a workman for the purposes of the Standing Orders only if he is employed to do manual or clerical work, whether skilled or unskilled, for hire or reward. There is no evidence on record to show that the respondent was employed to do manual work, whether skilled or unskilled. No doubt, the respondent, in paragraph 5 of his additional affidavit, has claimed that he was a most experienced skilled and technical worker as an Assistant Boiler Attendant and the Air-Conditioning Trade and used to work on the jobs by his own hands, but apart from the fact that he has not specified the specific work for which he was employed to do work with his hands, the evidence on record does not support his plea that he was required or employed to do any work with his hands. In the first place, no such plea was raised by the respondent in his grievance petition. Furthermore, though the respondent has claimed that he was assistant to the Boiler Attendant, yet he was forced to admit in his cross-examination that he used to sanction the leave of Yaqoob Amanullah, the Boiler Attendant. It is thus impossible to believe that though the respondent was assistant to Boiler Attendant, yet he was the leave sanctioning authority of the Boiler Attendant and, therefore, his superior. Furthermore, the Payment Register shows that through out the relevant period the respondent was drawing higher pay than the Boiler Attendant, Yaqoob Amanullah. It appears that a certificate was given to the respondent that he had worked as assistant to the Boiler Attendant merely in order to enable him to obtain the necessary certificate from the Government of Boiler Attendant. There is no evidence to show that in fact the respondent2 had worked or in fact was employed as assistant Boiler Attendant. On the other band, the appointment order of the respondent shows that he was appointed as Operator Incharge and that the rest of the workmen in the appellant establishment, including the Boiler Attendant, were working under him. This is established by the numerous leave applications of the workmen sanctioned by the respondent and also the overtime sheets of the workmen which were approved by the respondent. If all other workmen in the appellant's establishment were working under the respondent, it is hardly likely that respondent was employed to do any manual work. Even if occasionally he had to do any work with his hands, that was incidental to his main duties as Operator Incharge and was not an essential or main part of the work for which he was employed. I am, therefore, of the view that the respondent was not a workman for the purposes of the Standing Orders and accordingly was not entitled to maintain a grievance petition under clause (3) of Standing Order 12 read with section 25-A, Industrial Relations Ordinance.
7. On other view of the matter, therefore, the grievance petition of the respondent was not maintainable. I would accordingly set aside the impugned decision of the learned Labour Court and allow the appeal. 1978 P C 270 1980 PLC 622