DECISION ' The services of the appellant, who was admittedly employed as Kitchen Supervisor in the restaurant known as Skyroom owned and managed by the respondent-Company, were terminated, vide letter, dated 3rd December, 1978 and the reason given in the said letter for termination of services of the appellant was that "constant observation has given rise to a conclusion that you are not sincere either in your duties or in the interest of our Management and are rather taking interests obviously at the behest of some external elements, in race, politics and religion." The appellant challenged the termination of her services through a grievance petition made under section 25-A,
1. R.
0., before the learned Fourth Labour Court. The respondent-company resisted her grievance petition mainly on the ground that as she was not a workman for the purposes of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1965 her grievance petition was not maintainable.. This contention found favour with the learned Labour Court which has dismissed the appellant's grievance' petition solely on that ground. Aggrieved by this decision the appellant has come up in appeal to this Tribunal.
2. I have heard Mr. Ashraf Hussain Rizvi, who appeared for the appellant and Mr. Wasi Ahmed, the learned representative for the respondent-Company. The sole issue which was convassed before me in this appeal was whether the appellant was a workman for the purposes of the Standing Orders and was entitled to maintain a grievance petition before the learned Labour Court. The letter of appointment of the appellant has not been produced but the admitted position is that the appellant was working as Kitchen Supervisor and was lastly drawing a selary of Rs, 1,486 p.m. It is further an admitted position that the regulations and terms and conditions of services of the Midway House Limited, Airport Branch, were applicable to the appellant, clause 6 of the said Regulations provides that uniforms will be worn by the employees on duty and these uniforms will be supplied by the Company. There is no evidence to suggest that this specific provision in the regulations was not applicable to the appellant. The most important provision in the said regulation, however, is contained in paragraph 14 which specifically provides that other conditions of employment not specified in the regulations will be governed by the Standing Orders Ordinance, 1960. These regulations, therefore, indicate that the Standing Orders were being applied by the Management to their employees including the appellant. The fact, that, according to her letter of appointment and the terms and conditions of service applicable to her, sbe was to be dealt with in accordance with the provisions of the Standing Orders, is impliedly conceded by the management even in the letter terminating the services of the appellant. The relevant portion of the letter reads as follows :- "This was also done in your case alongwith other. Consequently, your letter of appointment, referred to above, and duly containing your declaration of acceptance, is in fact a Contractual Agreement with respect to the terms and conditions of service, having a binding force, and the same also satisfies the requirement of the present provisions of Standing Order 2-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
3. Coming now to the specific duties which were being performed by the appellant, she has stated in her evidence before the (earned Labour Court that she used to perform skilled manual and clerical work and used to work with her own hands ; that for the purposes of her selection for the post of Kitchen Supervisor the Management had taken her cooking test ; and that her main duties were-
(a) recipe preparation ;
(b) cooking ;
(c) receiving and issuing supplies ;
(d) requisitioning dry stores and perishable items ;
(e) checking, testing and quality control of food ; ( f) making entries in and maintaining various registers and books,
(g) costing and co-ordinating service from kitchen to the dining hall ;
(h) throwing away and disposal of the rotten vegetables, food stuff and similar unconsumable stuff ; and (0 other skilled, manual and clerical work.
' There is no reliable or tangible evidence to contradict the appellant's evidence on this point. No serious attempt was made to challenge in cross-examination the nature of duties specified by her except on the point that there were a number of cooks and head cook working in the kitchen whose number she was -unable to give. It was also suggested to her that she had acted as a Manager and skgned letters in that capacity but she strongly repudiated such a suggestion.
4. The only witness examined on behalf of the respondent-Company was their Manager Gui Bazar.
He has, no doubt, in his evidence before the learned Labour Court stated that the appellant was exclusive Incharge of the kitchen alongwith entire staff posted therein and responsible for the whole affairs of the kitchen and was not to be interfered with by any officer of the respondent but h.
Has not produced any document in support of his assertion. It appears that he, in fact, tried to produce certain documents before the learned Labour Court tending to show that the appellant had performed duties of managerial nature but as these documents were not produced by him at the earliest opportunity nor was the appellant confronted with the same, he was rightly not permitted by the learned Labour Court to produce the same at a late stage when the documents admittedly came from his possession. There are other circumstances tending to throw heavy doubts on the credibility of this witness. He had first strongly denied that the appellant used to issue and receive kitchen supplies but he was confronted with his evidence in the case under section 34, I. R.
0., where he had admitted that the appellant used to issue and receive supplies. It may be explained that the case under section 34. I. R.
0., was filed by the respondent company praying that the appellant, who was the General Secretary of the Workers' Union and the C. B. A., in the respondent establishment, be restrained from acting as such. This application was admittedly rejected by the learned Labour Court.
5. There are other circumstances indicating that the appellant was a workman and was considered as such by the management. It has been admitted by the respondent's witness, Gul Bazar, that while he was General Supervisor in the respondent-Company, he was the President of the Workers' Union and similarly other Supervisors in the respondent-Company held positions of General Secretary and other officers in the Workers' Union. In fact, it was only after he became the Manager of the respondent-Company that he relinquished office of the President of the Workers Union. Strongly enough after he became Manager he singled out the appellant for pressurising her to resign her post of General Secretary of the Workers' Union when admittedly other Supervisors, who were Members or office-bearers of the Union, were not asked to do so. The fact that it was the practice in the respondent-Company that Supervisors were entitled to be Members and Officers of the Workers' Union, indicates that they were treated as workman.
6. Another circumstance indicating that the appellant was a workman was that she used to receive service charges alongwith other workers. She could be entitled to those charges only if she was part of the staff serving the customers. The admission of Manager Gui Bazar that he and other officers were not receiving any service charges show that there was a clear distinction between Officers and workmen and that the appellant was not considered as an Officer of the respondent- Company and was bracketted with the workman.
7. Mr. Wasi Ahmed sought to rely on the letter, dated 23rd October, 1978 written by Manager Gul Bazar to the appellant, who refers to certain duties and responsibilities of the appellant, but that letter was written when there was a dispute between her and the management. In which Manager Gul Bazar appears to have been directly concerned regarding the appellant's status as a workman and entitlement to continue as General Secretary of the Workers' Union.
8. The learned Labour Court, in holding that the appellant bad failed to establish that she was a workman for the purposes of the Standing Orders, has relied upon the observation of this Tribunal in the case reported as Johnson & Johnson v. Zubair Ahmed (1) that normally a person who seeks to enforce a claim must establish that he is entitled to that claim or right and consequently a person filing an application under section 25-A, Industrial Relations Ordinance, 1969, must establish that be is "workman" under the Industrial Relations Ordinance, and/or under the other law under which he claims the right. However, as abserved in the said Judgment by this Tribunal, if a person establishes that he is an employee of an Industrial or Commercial establishment the burden would be light one. Furthermore, it was pointed out by this Tribunal in the case of Abdul liameed Shaikh v.
Qureshi Brothers Tanners (2) relying on the decision of their Lordships of the Supreme Court in the case reported as Muhammad Bashir v. Rehmat Bibi (3) that the question of onus or burden of proof loses importance when evidence is led by both parties and in such cases the matter is to be decided on the evidence on record. The evidence, to which I have referred strongly, supports the contention of the appellant that she is a workman mainly employed to do work of routine nature, either clerical or manual. I would, therefore, set aside the decision of the learned" Labour Court and would remand the case to it for deciding the grievance petition of the appellant on merits. As this is an old case which has been unfortunately pending adjudication since a considerable time the learned Labour Court is directed to give priority to this case and dispose of the same as early as possible.