' SAGHEER AHMED QADRI, CHAIRMAN.--- Respondent Sardar Khan S/o Peer Bakhsh filed grievance petition under section 25-A of IRA, 1969 mentioning the facts that he joined the service as Chowkidar in respondent/ establishment about 22 years back and had unblemished record on his credit; that by the dint of nature of duties performed by him, he fell within the category of workman as defined under IRO, 1969; that on 23.07.2000 he was summoned by Manager and levelled the allegations that on the midnight of 22.07.2000 he was found sleeping during the duty hours but he refused to accept those allegations; that later on Mohammad Ramzan Labour Officer was appointed as inquiry officer who recorded the statement of Bashir Ahmed Chowkidar and without affording opportunity to cross examine the prosecution witness, report was prepared, a show- cause notice dated 01.08.2000 was issued and vide verbal orders dated 04.08.2000 he was terminated from the service; he sought redressal of his grievance on the ground that the allegations levelled against him were false, fabricated as no inquiry was conducted nor an opportunity of hearing was afforded to him, hence termination order dated 04.08.2000 be set- aside.
2. This grievance petition was replied by the appellants raising four preliminary objections about its maintainability having been filed without cause of action, barred by time with mala fides as well as the respondent (grievance petitioner) did not fall within the definition of worker. On factual side, the allegations levelled in the grievance petition was refuted and replied that as the respondent was found negligent during performance of his duties, hence after due process he was rightly terminated, prayed that petition be dismissed.
3. Learned trial court recorded the statement of Sardar Khan respondent as PW-1.
4. On behalf of the appellants Shan Mohammad appeared as RW-1, Mohammad Ramzan Labour Officer RW-2 who during their statement had got exhibited documents Ex.R.1 to Ex.R.
11.
5. Learned trial court after hearing both sides vide impugned judgment dated 29.10.2003 allowed the grievance petition with the direction for reinstatement of the respondent in service with 50% back benefits.
6. Feeling aggrieved appellants have preferred this appeal.
7. Learned counsel for the appellants mainly confined his arguments about the maintainability of the grievance petition on the main ground that a preliminary objection was raised that respondent being Chowkidar did not fall within the category of workman, hence the petition was liable to be dismissed on that score; that the respondent was a Chowkidar assigned the duties as watch and ward and no manual/ clerical work was included in his duties and he did not raise any such factual aspects in his grievance notice as well as grievance petition giving the details of his duties but learned trial court did not consider this aspect rather failed to touch this aspect all together; that show-cause notice was issued to the respondent, proper inquiry was conducted and thereafter in due process his services were terminated. Learned counsel referred the documentary documents Ex.R.1 to Ex.R.11 on record. While relying on 1984 PLC 1100 titled as Mohammad Ali v. Mills Manager National Embroidery Mills Ltd., Faisalabad, 2001 PLC 515 titled as Azam Khan v. Director, Grace Apperal (Pvt.) Ltd. PLD 2010 Lahore 649 titled as Irshad Begum v. Mohammad Rafique and 1981 PLC 319 titled as Khadim Hussain etc v. M/s Fauji Suger Mills.
8. On the other hand learned counsel for the respondent vehemently opposed the arguments advanced by the learned counsel for the appellant and argued that respondent right from the beginning in his grievance petition claimed himself as workman and subsequently led the evidence to prove so. It was further contended that the learned trial court rightly on the basis of evidence available found the termination order dated 04.08.2000 as illegal and while setting it aside due to minor negligence on part of the respondent, he was found entitled 50% back benefits.
Learned counsel referred statement of respondent Sardar Khan as PW-1 wherein he gave the details of his duties assigned. While relying on 1992 SCMR 505 titled as Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others, NLR 1991 TD 614 titled as Pakistan Steel Fabrication Co. Ltd. v. Mohammad Yamin 1994 PLC 497 titled as Attock Refinery Limited Rawalpindi v. Lal Khan, PLD 1988 SC 180 titled as Security Paper Limited v. Sindh Labour Appellate Tribunal and another 1992 SCMR 2166 titled as Pakistan Engineering Company, Ltd., v. Fazal Beg, etc. And PLD 1986 SC 103 titled as General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others, prayed that appeal be dismissed.
9. I have heard learned counsel for the parties and perused the records.
10. Admittedly respondent Sardar Khan sent grievance notice dated 04.10.2000 Ex.P.1 to appellants/ Management showing the details of his grievance, for its redressal within 15 days. Photo copy of postal. Receipt Ex.P.1/1 is also present on record. If the grievance petition moved by the respondent is seen, its para 2 reads as under: "That by dint of nature of duties performed by the petitioner he does fall within the definition of workmen as enshrined under Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968."
' Learned counsel for the appellant during arguments submitted that a party cannot be allowed to lead evidence in respect of the aspects which were never raised during its pleadings. This argument raised by the learned counsel for the appellant in view of the above mentioned para has no force. It has now been settled that pleadings normally does not include the evidence but it refers the material factual and legal aspects which are to be proved subsequently by the parties during the trial. Order VI, Rule 2 Civil Procedure Code, 1908 can conveniently be referred to suppose this argument.
11. The respondent in his statement while appearing as PW-1 while explaining the paragraph 2 of his grievance petition claiming himself as workman as defined under IRO, 1969 stated: "I was recruited as Chowkidar with the respondent about 22 years back. My duty was to open the gate of the mills and to close the same, to make a search of the person/ persons entering the mills, and for the purpose the management had provided me "Dandda". I would also clean the office. I would also to do the job of Naib Qasid in his absence. If the statement of Shan Mohammad RW-1 is seen he in his examination in chief stated: {{URDU TEXT}} ' If the above mentioned statements are seen it is clear that the respondent was to perform his duties while not only as a watchman but he has to get personally searched the people approaching the mills premises, hence he had to perform such manual work and being an employee of a category of a lowest grade having no supervisory powers, he safely can be taken as a workman in the light of judgments cited by learned counsel for the respondent specifically the judgment cited as PLD 1986 SC 103 wherein their Lordships of Supreme Court of Pakistan have clearly given the criteria to determine if an employee falls within the definition of a workman. The relevant paragraph 11 at page 111 of the judgment is hereby reproduced: "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."
' In another judgment cited as 1992 SCMR 2166 titled as Pakistan Engineer Company, Ltd. v. Fazal Beg etc., the honourable Supreme Court while with reference to section 2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) and section 2(xxviii) of IRO, 1969 specifically held a Security Jamadar as a workman and while dealing with his performance/nature of duties it was observed: "The basic and first principle to be kept in view in construing a beneficial legislation is to interpret its provision to advance its 'purpose rather than thwart or subvert it by specious sophistry. The idea behind the legislation was safe-guard the rights and interests of workmen. Workman was defined to mean a person employed to do any skilled or unskilled, manual or clerical work for hire. The work performed was to involve physical exertion more or less, distinct from intellectual or the one involving decision making at a higher or lower level. It would appear to be travesty of thought to say that a Jamadar drawing about 4 or 5 hundred rupees per month at the relevant time was not a workman under one statute though he was so in another when both intended to achieve the same purpose".
' In the light of above discussion and keeping in view the pleadings, the statement of respondent Sardar Khan PW-1 and that of RW-1 Shan Mohammad the status of respondent clearly falls within the definition of workman as defined under section 2(i) of (Standing Orders) Ordinance 1968 read with section 2(xxviii) of IRO, 1969, hence the grievance petition was maintainable before the learned trial court.
12. Now come the question about the allegation levelled against the respondent in negligently performance of his duties. The learned trial court has thrashed all these aspects while discarding the statement of RW-1 Shan Mohammad based on hearsay and further it was lacking in material aspects to prove the allegation beyond any reasonable shadow of doubt, hence while reinstating the respondent his 50% back benefits Were rightly withheld. Learned counsel for the appellant as already mentioned only confined his arguments in respect of the technical objection i.e, the maintainability of the grievance petition but as the appeal in toto is to be looked into by this Court, therefore these aspects have already been seen and found the observation by the learned trial court quite reasonable and justified, hence, in these circumstances, no merits in this appeal which is hereby dismissed.