1. AJMAL MIAN, J.-Since the above two petitions involve common questions of law, we intend to dispose of the same by this common judgment.
(a) Constitution Petition No. 139/81.-The facts leading to the filing of the above petition are that the petitioner was a permanent employee of respondent No. 1 Company as a Security Guard Since 1969. It seems that on or about 28-8-1979 the petitioner was charge-sheeted on the allegation that on 21-1-1979, he had incited the workers at the front gate of the mills alleging, that lot of money, material, and labour were being unnecessarily spent on S. P. L. House at Defence Co-operative Housing Society, Karachi. The above charge-sheet was issued under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance). It further seems that on the basis of domestic inquiry conducted by the respondent- Company, the petitioner was dismissed from service by an order dated 12-12-1979. It also seems that the petitioner after serving a grievance notice filed an application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as I. R. O.) in .The 4th Sind Labour Court at Karachi (being Application No. 20/1980). It further seems that after the conclusion of the cross-- examination of the petitioner, respondent No. 1 filed an application for raising the plea that the petitioner was not a workman within the ambit of section 2(i) of the Ordinance, which plea was allowed to be raised. However, the learned 4th Sind Labour Court by its order dated 13-9-1980 allowed the petitioner's application and ordered his re-instatement , with full back benefits within a period of 15 days. Respondent No. 1 being aggrieved by the above order filed a writ petition, namely, Constitution Petition No.. S-94/80. Upon the service of the notice of the above petition, the petitioner inter alia raised the objection that the petition was not maintainable as respon--dent No. 1 had adequate alternate remedy by way of an appeal under the I. R. O. It also seems that respondent No. 1 also filed an appeal against the above order but did not proceed with the same till the dismissal of their petition by this Court through the judgment dated 18-12-1984. The above appeal was allowed by respondent No. 2 by its order dated 1-2-1981 on the ground that the petitioner being a Security Guard was . Not workman within the definition contained in section 2(i) of the Ordinance.
2. The petitioner being aggrieved by the above order has filed the present petition.
(b) Constitution Petition No. D-204/1981.-The relevant facts leading to the filing of the above petition are that the- petitioner at the relevant time was working as a shift Jamadar drawing a monthly wages of Rs. 350, and was employed with respondent No. 2 Company since October, 1969.
3. It seems that on 21-1-1979 the petitioner was served with a charge-sheet dated 18-1-1979 under the provisions of the Ordinance, wherein it was alleged against him that on 17-I-1979 at about 10-50 p.m. During the duty hours, a chowkidar and a chowkidar air-condition operator had stolen two bags of card-fly at petitioners' encouragement. It was also alleged, that it was a misconduct under the -provisions of the Ordinance. The petitioner submitted his reply to the above charge-sheet, but respondent No. 2 ordered the holding of an inquiry. It seems that on the basis of the finding recorded by the Inquiry Officer, the petitioner was ultimately dismissed by an order dated 29-1- 1979. It further seems that the petitioner after serving a grievance notice filed an application under section 25-A of the I. R. O. In the Court of 6th Sind Labour Court at Hyderabad on 6-5-1979. The above application was resisted by respondent No. 2 and inter alia it was pleaded that the petitioner was not a workman within the ambit of section 2(i) of the Ordinance. However, at the stage of arguments, respondent No. 2 in their written arguments did not press the above plea. The learned Sind Labour Court by its order dated 8-12-1979 allowed the petitioner's above application and directed respondent No. 2 to reinstate him with continuity of service and back benefits from the date of dismissal. Respondent No. 2 being aggrieved by the above order filed an appeal before the learned Sind Labour Appellate Tribunal (respondent No. 1) which was allowed by an order dated 20-2-1980 on the ground that the petitioner was not a workman within the ambit of the Ordinance being a shift Jamadar or a Chowkidar. The petitioner .Being aggrieved by the above order has filed the present petition.
2. (a) In support of the above petitions Messrs Obaidur Rahman and Mr. Ali Amjad have made the following submissions :- "(i) That as the respondents companies had taken actions under the provisions of the Ordinance inasmuch as charge-sheets and show---cause notice were issued and the dismissal order were passed under the provisions of the Ordinance, the burden of proof was on the respon--dents companies to prove that the petitioners were not workmen . Within the ambit of the Ordinance.
(ii) That the performance of duties of the petitioners involve manual work and therefore, the learned Sind Labour Appellate Tribunal erred in holding that the petitioners were not covered by the definition of workmen given in section 2(i) of the Ordinance.
(iii) That the learned Sind Labour Appellate Tribunal has erred in not appreciating that the word `labour' appearing in section 2(i) of the Ordinance was substituted by the word "work" by Ordinance No. XXIII of 1973 and, therefore, the scope of the definition was enlarged.
(b) On the other hand Messrs Mamoon Kazi and Zaidi, learned counsel for the private respondents have made the following submissions.
4. "(i)That the burden of proof is on a person, who approaches a Labour Court to prove that he is a workman within the ambit of section 2(i) of the Ordinance.
(ii) That in order to make a person a workman within the ambit of section 2(i) of the. Ordinance, the Court is to see, whether the performance of the duties by the person concerned involve predominantly the use of his hands in order to perform manual work and that insignificant use of the hands in performing of duties will not make a person a workman within the ambit of the Ordinance.
(c) In support of their contentions Mr. Obaidur Rahman and Ali Amjad have referred to the casse of Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sind and 6 others (PLD 1977 SC 237the case of Muller & Phipps (Pakistan) Limited, Karachi v. District Magistrate, Karachi and 4 others (PLD 1974 Kar. 261), the case of the Shahzar Khan v. Sind Labour Court No. 4, Karachi and 2others (1977 SCMR 103and the case of Messrs Johnson and Johnson (Pakistan) Limited v.
5. Zabair Ahmed (1980 PLC 622). (d) On the other hands Messrs Mamoon Kazi and Zaidi have referred to the case of K. D. C. Boards Limited v. Muhammad Sadiq (1976 P L,C 915), the case of Bashir A. Malik v. The Punjab Labour Court (Northern Zone), Lahore and 2 others (PLD 1973 Lah.
6. 594the case of 1. E. Saleh v. Messrs International Laboratories Limited Karachi and 2 others (PLD 1975 Kar. 279the case of Pakistan Tobacco Company Limited v Pakistan Tobacco Company Employees' Union, Dacca (PLD 1961 SC 403), the case of May & Baker (India) Limited v. Their Workmen (1961 PLC 1127the case of Grind Wheel Pakistan Limited v. Syed Khalid Ahmed (1975 PLC 263the case of Chairman, Brooke Bond (Pakistan) Limited Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Limited, Rawalpindi (PLD 1969 Lah. 717the case of Karachi Transport Corporation v. M. Hafeez Siddiqi and 2 others (1980 PLC 644the case of Poineer insurance Company Limited v. Presiding Officer, Labour Court No. 1r, Karachi and another (1978 PLC 293), . The case of General Secretary, Bannu Woolen Mills Workers Union v. Management Bannu Woolen Mills Ltd., Bannu (1964 PLC 347), the case of Pakistan International Airlines Corporation v.
7. The Chairman, Punjab Labour Appellate Tribunal, Lahore and another (PLD 1979 Lah. 415and the case of Maula Bux v. Sin4 Road Transport Corporation, Hyderabad (1980 PLC 616
3. (a) Before taking up the respective contentions of the learned counsel forthe parties, it may be advantageous to quote hereinbelow the definition of workman given in section 2(i) of the Ordinance and the definition of `worker and workman' provided for in section 2(xxvfii) of the I. R. O.
8. Which read as follows :-- "(i) 2(i) "workman" means any person employed in any industrial or he commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
(ii) 2(xxviii) "Worker" and "workman" means any 'person not falling within the definition of. Employer.
9. Who is employed (including employment as a supervisor or) as an apprentice in an establishment or industry for. Hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any, proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal,discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person ---------.
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
(b) it may be noticed that the definition of worker and workman given in the I. R: O. Is much wider in its scope as compared to the definition provided in section 2(i) of the Ordinance inasmuch as section 2(xxviii) of the I. R.- O. Provides that a worker means any person not falling within the definition of employer including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward directly or through a contractor. However, it excludes from its ambit a person, who is employed- mainly in a managerial or administrative capacity or who being employed in supervisory capacity draws wages exceeding Rs. 800 per mensem or performs either because of the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature. It may again be noticed that an employer is excluded from the purview .Of the above definition of worker and workman. It may be of served that section 2(viii) of the 1. R. O. Defined an employer in relation to an establishment means any person or body or person, whether incorporated or not, who employs workmen in the establishment under a contract of . Employment. The definition includes a heir, successor or assign as the case may be of such person or body as aforesaid, any person responsible for the management, supervision and control of the establishment, in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf and where no authority is so appointed, the head of the Department, in relation to an establishment run by or on behalf of local authority, officer appointed in this behalf or where no officer is so appointed the Chief Executive Officer of that authority and in relation to any other establishment the proprietor of such establishment and every director, manager, secretary, agent 4r officer of person concerned with the management of the affairs thereof.
(c) In order to bring a person within the ambit of workman as defines in section 2(i) of the Ordinance the person should be employed in anindustrial or commercial establishment and has to do any skilled or unskilled, manual or clerical work for hire or reward. It may be pointed out that in the original above section 2(i) the word `labour' was employed which was substituted by the word `work' by Act XXIII of 1973 in order to enlarge the scope of the definition.
4. (a) In order to understand the scope of definition of `workman' given in the Ordinance, it may be pertinent to refer to the definitions of the following words used in the above quoted definition of the `Workman'.
10. "Any, "skilled", "unskilled", "manual" and "work." :the word "any" has been, inter alia, defined in Stroud's Judicial Dictionary 4th Edition, Volume I, page 145, Black's Law Dictionary, 4th Edition, page 120, the Oxford English Dictionary, Vol. I, page 378 column 2 and Chambers Twentieth Century Dictionary; which read a; follows :-
(i) Stroud's Judicial Dictionary, 4th Edn., Vol. I, p. 145 "Any : (1) "Any" is not confined to a plural sense (Eaton v. Lyon 3 Ves. 694). (2) "Ant" is a work which excludes limitation or qualification (per Fry L. J. Duck v. Bates 12 Q B D 79) ; ' "as wide as possible"
11. (per Chitty, J., Beckett v. Sutton 51 L J. Ch. 433) A remarkable instance of this wide generality is furnished In re : Farquhar (4 Notes of Ecc. Cases 651, 652, cited Wms. Exs.), wherein the words "any soldier" etc. (Wills Act, 1937 (c. 26), S. 11), were construed as including miners, so that soldiers and seaman, within that section can make NUN CUPATIVE wills though under age, so a power in a lease, enabling the lesser to resume "possession of any portion of the premises demised," enables him to resume all (Liddy v. Kennedy L R 5 H L 134.
(ii) Black's Law Dictionary, 4th Edition, Vol. 120 "Any Some; one out of many ; an indefinite number State v. Pierson, 204 Iowa ` 837, 216 N W 43, 44.
12. One indiscriminately of whatever kind or quantity. Federal Deposit Ins. Corporation v. Winton, C. C.
13. A. Tenn., 131 F. 2nd 780, 782. One or some (indefinitely). Slegel v. Slegel, 135 N J Eq. 5, 37 A. 2d. 57, 58.
14. "Any" does not necessarily mean only one person, but many, have reference to more than one or to 'many, Doherty v. King, Tex. Civ. Appn. 183 S W 2nd. 1004, 1007. As a synonym for "some", Kayser v.
15. Occidental Life Ins. Co. Of California, 234 Lowa 310, 12 N W 2d. 582, 587.
16. It is often synonymous with "either", State v. Antonio, 3 Brev. SC 562 ; Carr-Lowry Lumber Co. v.
17. Martin, 144 Miss. 106, 109 So. 849, 850. And is given the full force of "every" or. "all"; Glen Alden Coal Co. v. City of Scranton, 282 Pa. 43, 127 A 307, 308 ; Southern, Ry. Co. v. Gaston County, 200 N C 780, 158 S E 481. Its generally may be restricted by the context, Drainage Dist. No. I of Bates County v.
18. Bates County, Mo. Sup., 215, S W 494, 953. Thus, the giving of a right to do some act "at any time" is commonly construed as meaning within a reasonable time. Paulson, v. Weeks, 80, Or. 468, 157, p.
19. 590, 592, Ann. Case 1918 D 741. And the words "any other" following the enumeration of particular classes are to be read as "other such like," and include only others of like kind or character.
20. Southern Ry. Co. v. Columbia Compress Co.. C C A SC 280 F 344, 348.
(iii) Oxford Eng. Dic. Vol. I, p. 378 "Any :
1. Gen. An indeterminate derivative of one, or rather of its weakened adj. Form, a, an, in which the idea of unity (or, in plural, partitivity) is subordinated to that of indifference as to the particular one or ones ' that may be selected. In sing. A--no matter which ; a-whichever of whatever kind, of whatever quantity. In pl.-Some--no matter which of what kind, or how many."
(iv) Chambers Twentieth Century Dictionary (revised edition)
21. Any : adj. And pron. One indefinitely : some whichever, no matter which adv. At all, to an appreciable extent. n. And pron, any body, any single person: a person of any account.--adv. Any how, in any way whatever: in any case, prons. Anyone (or any one), any body at all anybody whatever ; anything, a thing indefinitely, as opposed to nothing adv. Any whit, to any extent."
22. It may be noticed that the word `any' has a very wide connotation and it will inter alia include every kind of thing of the type which is, prefixed by the word `any'.
(b) The word `unskilled' has been defined in the Oxford. Dictionary Volume XI, page 343 as follows Oxford Dictionary, Vol. XI, p. 343 "(i) Unskilled : Not skilled or expert in something ; ignorant of untrained or unable to.
(ii) Not skilled in some handicraft ; devoid of technical training.
(iii) Not involving or requiring skill ; displaying lack of skill."
(c) On the other hand the term `skill', `skilled' has been defined inter alla in Stroud's Judicial Dictionary 4th Edition Volume V, pages 2560 and 2561, Oxford English Dictionary Volume IX page 139 ; and Chambers Twentieth Century Dictionary Stroud's Judicial Dictionary, 4th Edition, Vol. V "SKILL (1) : When a skilled person "is employed, there is on. His part an implied warranty that he is of skill reasonably competent to the task he undertakes-spondes peritian artis" (Harmer v. Cornelius 5 C B N S 246) ; i.e. not the very highest skill (Rich v. Pierpoint 3 F & F 35), but "that ordinary degree of skill and knowledge which would reasonably be expected "from one acting in the particular employment and circumstances" (Jenkins v. Betham 15 C B 189).
(2) Skill embraces care (Lister v. Romford Ice cfc Cold Storage Co. 1957 A C 555). For "of what advantage to the, employer is his servant's undertaking that he possesses skill unless he undertakes also to use it" (per Viscount Simonds).
(3) See hereon, as to the medical profession, Lamphler v. Phipos 8 C & p. 479 ; Rich v. Pierpoint sup:-a Solicitor, Godefroy v. Dalton 6 Bing 468 ; Donaldson v. Haldane 7 C I & F 762 ; Purvess v.
23. Landell 12 ibid 91 ; Lewis v. Collard 14 C B 208-a parliamentary agent, Bulmer v. Gilman 4 M & G 108- an architect, Le Lievre v. Gould (1893) 1 Q B 491: Pogers v. James 2 Hudson, 113: -a surveyor and valuer, Jenkins v. Betham Sup. Turner V. Goulden L R 9 C P 57 :-a house agent. Heys -v. Tindall 30 L J Q B 362 :-a scene painter Harmer v. Cornelius sup: a water finder, Pritty v. Child 71 L J K B 512, cited RECKLESS. See also RELY.
(4) A person who is sufficiently "skilled" to act as an expert witness is one who has, by dint of training and practice, acquired a good knowledge of the science or art concerning which his opinion is sought, and the way in which he acquired his skill is immaterial R. v. Bummiss 44 C R 262)
24. A bank manager was held to be "specially skilled" in foreign law as to the proof of what notes were legal tender (Ajami v. Controller of Customs (1954) 1 W L R 1405).
25. Oxford English Dictionary, Vol. IX SKILL:
1. Reason as a faculty of the mind ; the power of discrimination. Obs.
(ii) Discrimination or discretion in relation to special circumstances Obs.
(iii) A sense of what is right or fitting. Obs. 1338 R. BRUNNE Chron (1810) 245. He praied to hold him stille, & he suld do his wille, in alle pat skill-a not se. 1377 LANGL. P. PI. B xix. 279 Ne sholde no scorner ne scolde oute of skyl hym (sc. Temperance) brynge ? 1470 ASHBY Active Policy 649 Do theim to be lettered right famously. Whereby thei shall reule bi Reason and skele. a 1536 Songs, Carols, etc. (E E T S) 25 Grant thow me myn asking. As reason Wold & Skyll.
(iv) That which is reasonable, proper, right, or just. Obs.
26. Black's Law Dic., 4th Edn.
27. SKILL. Practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner and with readiness and dexterity. Akridge v. Noble, 114 Ga. 949, 41 S E 78 ; Haworth v. Severs Mfg. Co., 87 Lowa 765, 51 N W 68.
28. Chambers Twentieth Dictionary SKILL. n. Reason (Steak.) : discrimination (obs.) : expertness ; expert knowledge (arch.) : a craft or accomplishment v. t. And v.i. (arch.) to matter : to make (a difference) : to signify.. . It may be noticed that the word 'unskilled' connotes that the person does not have any special or expert knowledge in a particular line, whereas, 'skilled' conveys converse meaning, namely, that the person concerned possesses of reasonably good knowledge and experience in the line in which he is working.
(d) The words 'manual'/manual labour have been defined in Black's Law Dictionary, 4th Edition, page 1117, in Oxford English Dictionary page 141 column 1 and 3 and Words and Phrases legally defined by John B Sounders, Second Edition, Volume 3, page 208 and Chambers Twentieth Century Dictionary, which reads as follows Black's Law Dic., 4th Edn.
29. MANUAL : of, or pertaining to, the hand or hands : done, made, or operated by or used with the hand or hands ; or as manual labour, Mc. Erlain v. Taylor, 207 Ind. 240, 192 N E 260, 262, 94 = AIR 1284.
30. Performed by the hand ; used or employed by the hand ; held in the hand.
31. MANUL LABOUR : Work done with the hand. State v. Ash, 53 Ariz. 197, 87 p. 2d. 270, 272. Labour performed by hand or by the exercise of physical force, with or without the aid of tools and of horses or other beats of burden, but depending for its effectiveness chiefly upon personal muscular exertion rather than upon skill, intelligence or adroitness. Lew Jim v. U. S. C. C. A. (Cal.) 66 F. 954, 14 C. C. A. 281 ; Martin v. Wakefield, 42 Minn. (176) 43 N. W. 966= 6 L. R. A. 362.
32. Oxford Eng. Dic., Vol. VI MANUAL : a. And sb. Forms : 5-8 manual, (5 manuele), 5-7 manuell, 5-6 manuelle, manwell, manuale, 6-7 manuall, 6 manual. (ad. The earlier form through F. Manual) L. Manualis pertaining to the hand ; the neut. Manuale was used subst. In class L. For a book-cover', in late L. For a handbook.
33. Cf. Sp., pg. Manual, it. Manual adjs. And shs).
(1) Of or pertaining to the hand or hands ; done or performed with the hands. Now esp. Of (physical) labour, an occupation, etc., as opposed to mental, theoretical.
34. Words & Phrases Legally Defines, Vol. 3 MANUAL LABOUR : It seems to me that `Manual labour' can only mean 'labour performed by hand'.
35. Morgan v. London general Omnibus Yo. (1884) 13 Q B D 832 (C. A.) per Bowen, L. J. p. 834.
36. "The appellant was employed as a grocer's assistant in a shop, and his business was to take orders from the customers and to vary them out. In doing this he may have to show goods, and if the customers take away the goods he has to make up the parcels. In doing this he has to use his hands and the question is whether that makes him a manual labourer. There can be no manual labour without user of the hands ; but it does not at all follow that every user of the bands is manual labour, so as to make the person who does it a manual labourer." Bound v. Lawrence (1892) 1 Q B 226, (C. A.) per Lord Esher, M. R. At p. 228.
37. "It is difficult to imagine any work done by man so purely intellectual as to require no kind of work with the hands ; and the converse is equally true, that there can hardly be work with the hands that requires no intellectual effort. If, then, the words 'manual labour' are to have the full significance which could be put on them, they would be extended to every kind %of employment . . . . The determi--nation of what is substantial and what accessory may be a question of difficulty ; but, in my view of this case, the appellant was not engaged in manual labour. In his occupation the knowledge and skill required in selling the goods to customers is more important than the manual work that he does, and the latter is an incident of his employment.
38. Chambers Twentieth Century Dictionary MANUAL : adj., of the hand ; done, worked, or used by the hand ; working with the hand.-n. Drill in the use of weapons, etc. : a hand book or handy compendium of a large subject or treatise an old office book like the modern R. C. Rituale : a key or keyboard played by hand : a primary feather.- adv. Manually.-manual alphabet, the signs for letters made by the deaf and dumb, manual exercise, drill in handling arms."
39. It may be noticed that the word 'manual' or `manual labour' involves use of hands as compared to the use of 'skilled' or intellect. If a person uses his hands as well as skill/intellect in that event the question whether the person belongs to 'manual labour' or to 'skilled labour' or 'skilled -person' has to be determined with reference to the quantum of use of hands and use of skill. If while performing his duties/functions he predominantly uses his hands in that event. He would fall within the category- of manual labour but if he predominantly uses his skill, he would not fall within the category of manual labour but would be covered with the term 'skilled labour'/'skilled' person.
(e) The word 'work' has been, inter alia, defined in Black's Law Dictionary 4th. Edo. Page 1780, Oxford English Dictionary, Volume XII, Stroud's Judicial Dictionary, 4th Edn., Vol, V,' page 3045 and Chambers Twentieth Century Dictionary; Black's Law Dic., 4th Edn.
40. WORK : To exert one's self for a purpose, to put forth effort for the attainment of an object to be engaged in the performance of a task, duty, or the like. The term covers all forms of physical or mental exertions, or both combined, for the attainment of some object other than recreation or amusement. Leathers and Martin v. Conley, La. Appl, 157 So. 607, E09. Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, Ala., 64 S. Ct: 698, 703, 705, 321 U. S. 590, 88 L. Edn. 949, 152 A. L. R. 1014.
41. Oxford Eng. Dic., Vol. XII WORK: (1) Something that is or was done ; what a person does or did ; an act, deed, proceeding, business ; in pl. Actions, doings (often collectively=3. Arch. Or literary in gen. Sense.
42. Stroud's Judicial Dic., 4th Edn., Vol. V WORK: (1) The word 'work' may be used in two senses ; it may mean either the labour which a man bestows upon a thing, or the thing upon which the labour is bestowed" (per Collins M. R. Atkinson v.
43. Lumb (1903) 1 K. B. 861, cited ENGINEERING WORK). See further Bromley Rural Council v. Croydon, Carlisle Rural Council v. Carlisle (1909) 1 K B 471 ; Reigate Rural Council v. Sutton Water Co. 78 L. J. K.
44. B. 315, both cited Completion.
(2) It is probably impossible to define what is "work" by a CHILD, YOUNG PERSON, or WOMAN, within the Factory and Workshop Act, 1901 (1 Edw. 7, c. 22, now Factories Act, 1961 (c. 34) s. 87), because a thing-e.g. Oiling machinery though ordinarily "work", may under some circumstances not be so considered ; the nearest approach to a practical definition is, semble, the doing something which the doer would have to do if working under orders, and it is nonethe--less "work" because done for self-amusement Prior v. Slaitwalte Co. (1898) 1 Q. B. 881. In Graves v. Duncan 36 Se. L. R. 490, a manageress of a millinery establishment who kept her own hours and could come and go as she pleased, was held to be "EMPLOYED" on factory "work", within section 94, Factory and Workshop Act 1878 (4I & 42 Vict., "c. 16); Walker v. Martindale 80 J. P. 270."
45. Chamber's Twentieth Dictionary WORK.-Effort directed to an end : employment : that on which one works : the product of work : anything made or done : materials. For work : needlework t a deed : doings : the result of action : any production of art, as a literary composition, a book : manner of working, workmanship (in pl.) a manufactory, workshop ; the act of producing an effect by means of a force (I~) whose point of application moves through a distance (S) in its own line of action --measured by the product of the force a and the distance (W=Fs; Phys.) : (in pl'.) walls trenches, etc. (fort) : (usu. In PQ an action in its moral aspect, esp. As tending to justification (thol) (in Pl.). Mechanism, eg. Of a watch : the spin given to a ball by a bowler to cause it to break on pitching .
46. The above word has also wide connotation inasmuch as it includes all kinds of works including manual as well as skilled work, other than recreation or amusement.
5. (a) It may be appropriate to refer to the cases cited by the learned Counsel for the parties (i)
47. Referring to PLD 1977 SC 237, it may be observed that in the above case our Supreme Court, inter alia, while construing section 2(xxviii) of the I. R. O. 1969 held that a Salesman is a workman within the definition given in the I: R. O. It was also pointed out by the Supreme Court that the definition of workman given in the above section of the 1. R. O. Is different from the old definition of. The term `worker' given in the earlier enactment and has in fact altered the entire scheme behind it. It was also observed that the scope of the definition is more comprehensive and includes all persons employed in an establishment or industry other than the employer and that it also excludes any person, who is employed mainly in managerial or administrative capacity or employed in supervisory capacity and draws wages exceeding Rs. 800 per mensem or the duties which are of the nature which are mainly of managerial nature.
(ii) With reference to PLD 1974 Kar. 261, it may be stated that a D. B. Of the Erstwhile High Court of Sind and Baluchistan while considering the words `skilled', `unskilled', 'manual' or clerical in context with para. 3(b) of the Martial Law Order No. 52, observed that the above words have to be read disjunctively. The judgment was written by Muhammad Haleem, J. (as he then was). It may be instructive to reproduce hereinbelow para. 8 of the judgment, which reads as follows :- "(8) The legal contention that emerges is that being a sales representative, respondent No. 5 could not be placed in the category of workman, for its definition visualises that he should either be skilled or unskilled, which in turn must be either manual or clerical. Thus `skilled' must convey the sense of manual or clerical. Similarly, unskilled work should also be such. This is how he wanted us to construe the words 'skilled or unskilled, manual or clerical work' occurring in the definition of the word `workman' in section 2(i) of the West Pakistan Indus--trial & Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, which meaning is also assigned to it by para. 3(b) of the Order, which reads :- "Any person employed in any industrial and commercial establishment to- do any skilled or unskilled, manual or clerical work for hire or reward."
48. In so urging Mr. Salim Akhtar placed reliance on the case of Chairman Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi, where the definition of `workman' as it is worded in the Industrial Disputes Ordinance (LVI of 1959) was under consideration. No doubt, the words 'skilled or unskilled, manual or clerical work" also- occur in the definition of that term and it was construed as such in the above case. It was white elucidating definition of `workman' that it was observed that he was employed in an industry to do skilled or unskilled work, which could ether be manual or clerical. If that is so, then a peon will not be covered by the definition of the term `workman', who neither does manual or clerical work, but that does not seem to be the intention of the Legislature, which while laying emphasis on the nature of work seems to give to it a wide meaning by using the words `skilled or unskilled, manual or clerical which, to my kind, illustrate the nature of the work and have to be read disjunctively. As such, it is not possible to read the word `skilled or unskilled' to mean either manual or clerical, whether comma is or is. Not taken into consideration while construing these, words. Therefore, the nature of the duties performed would not except him from the definition of -the word `workman'. There is another distinction. In that case, the definition had a bearing to the keyword `industry', which is defined in Ordinance LVI of 1959 and it was therefore that the observations of the Supreme Court in Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Employees' Union, Dacca and others were relied on, which are to the effect that a Salesman cannot be regarded as a workman because he is not assimilate either to the group of workers, whose manual labour contributed to that is product or those of the clerical establishment who perform the paper work connected with the peration of the company. It seems, if I may say so, that the observations of their Lordships of the Supreme Court that the work of a Salesman is in a wholly different category from manual or clerical work have weighed with the minds of the learned Judges, who decided that case, while construing the definition of `workman'. Such construction cannot be given to the term `workman' as defined in the Ordinance."
(iii) Reverting to 1977 SCMR 103, it may be observed that the Supreme Court while considering the question, as to whether a Chowkidar whose work was in addition to being Chowkidax was to supervise three other Chowkidars, and whose salary was Rs. 350 per month was a workman or a worker within the ambit of section 2(xxviii) of the I. R. O. 1969, and it was held that he was a workman. While considering the scope of the above section of the 1. R. O. Reference to an unreported case decided by the Supreme Court, namely, Civil Appeal No. K-6 of 1968 (Organization of K. P. T. Workers v. K. P. T. Etc.) decided on 19-1-1970 was also made in which the Supreme Court while considering the definition of workman given in the Industrial Disputes Ordinance, 1959 held that Chowkidars and Havil--dars in the Watch & Ward Department of the K. P. T. Wire workmen under section 2(n) of the Industrial Disputes Ordinance, 1959. It may be advanta--geous to reproduce hereinbelow the relevant portion of the above judgment of the. Supreme Court, which reads as follows :- "Upon the admitted nature of the duties of the appellant he does not fall within the definition of employer. It is the consistent case of both the parties that the appellant besides working as a Chowkidar also supervised three other Chowkidars. His salary as has been noticed already was Rs.
49. 350 per month. In terms of the aforesaid definition of `workman', the appellant is clearly a `workman': Any doubt of "Explanation" under Ordinance IX of 972Yutthis However, before the addition of the Explanation this Court in Civil Appeal No. K-6 of 1968 (Organization of Karachi Port Trust Workers v. Karachi Port Trust, etc.), decided on the 19th of January 1970, had held that `Chowkidars' and `havildars' in the Watch and Ward Depart--ment of the Karachi Port Trust were `workmen' within the definition given in section 2(n) of the Industrial Disputes Ordinance, 1959, which was as follows :- "Workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward, and includes, etc." This Court observed as follows in the said Civil Appeal.
50. "The latest Ordinance on the subject, namely, the Industrial Relations Ordinance of 1969 (XXIII of 1969) has resolved all doubts on the point. "Workman" as per definition contained in section 2(xxviii) of this Ordinance, covers all employees of an industrial establishment, what--ever the nature of their duties, and include employees who have been discharged in connection with an industrial dispute or whose discharge has led to that dispute."
51. The learned Single Judge of the High Court seems to have misconceived the law applicable to the facts of the present case inasmuch as he applied West Pakistan Industrial and Commercial Employment (Stand--ing Orders) Ordinance, 1968, instead of the Industrial Relations Ordi--nance, 1969. It is due to this misconception that the learned Judge proceeded to consider whether the appellant was doing any manual or clerical work. , No such words appear in the definition of "work- -man" as given in section 2, clause (xxviii) of the Ordinance."
(iv) As regards 1980 PLC 622, it may be observed that in the above case inter alia, it was held by the Labour Appellate Tribunal that in order to bring a person within the definition of section 2(i) & S. O. 12(3) of the (Stand--ing Orders) Ordinance his basic duty must be clerical or manual and that the burden of proof is on such person.
(v) Referring to 1976 PLC 915, it may be stated that the Labour Appellate Tribunal Punjab while construing the definition of workman given in the . West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 held that a watchman is covered by the above definition.
(vi) With reference to PLD 1973 Lah. 594, it may be observed that the learned Single Judge while construing section 2(i) of the W. P. Industrial & Commercial Employment (Standing Orders)
52. Ordinance, 1968 held that a shift Engineer working in the Hotel Intercontinental Lahore was covered by the above definition, on the basis of the duties of the Engineer concerned assigned to him by the employer. It may be instructive to refer to a portion of the above judgment which reads as follows :- It is nobody's case that the Hotel Intercontinental is not an industrial or commercial establishment..
53. There is also no dispute about the fact that the work done by the petitioner is "skilled" in nature. It is also not denied that the work done by him is not clerical. The word "manual" has been defined at page 1202 of the. Shorter Oxford English Dictionary, Vol. I, 1956 Edn. As :- "Of, pertaining -to or done with the hands Now. Esp. Of (physical) labour." The word "labour" has been defined to the book at page 1096 :- "(1) Bodily or mental toil, esp. When painful or. Compulsory.
(2) Spec. In mod. Use : Physical exertion directed to the supply of the material wants of the Community.
(3) An instance of bodily or mental toil, Manual Labour, therefore, would mean something done with the hands which would include physical labour also but as labour also includes mental toil, any work done with the hands which requires mental toil also would not be outside the scope of the expression "manual labour". In the present case, besides clerical work that be has to do in the shape of the preparation of detailed reports of the duties performed by him during his shift, the petitioner had to . Do engineering work with his hands which does require physical as well as mental toil.
54. It is, therefore, not correct to say that the petitioner is not a "workman" within the definition given in Ordinance VI.
55. Unfortunately the word "engineer" in our country seems to continuate give the expression to layman of a highly placed officer supervising skilled and unskilled labour and doing nothing with his own hands. Such an expression is a relic of the days of extremely simple machines which could be handled by any skilled 'worker and moreover all occasional supervision by a qualified engineer was enough. The things nosy have changed with the advance of science, automation and sophistication are reverberating notes which necessitate constant attention by a qualified engineer and he is, therefore, no longer the supervisory officer of the forties when it was a white collar, job."
(vii) Referring to PLD 1975 Kar. 279, it may be stated that a learned Single Judge of this Court while construing the provisions of section 2(i) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 held that a sales medical Representative (Salesman) in a pharmaceutical Company was not covered by the definition, it was pointed out that a Salesman's duties cannot befit duties of a workman. It may be pertinent to refer to the relevant. Portion of the judgment which reads as follows :- .
56. "It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing the inferior work which is normally called manual or clerical work. He may be doing. Some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a Salesman are of a specialised nature designed to achieve the end of promoting sales, entering in competitive field with other producers and finding best available markets.' Such. Type of labour cannot be called.- manual or. Clerical:" :
(viii) Referring to PLD 1961 SC 403, it may be mentioned that in the above case the Supreme Court while construing the definition of workman given in section 2(s) of '.He Industrial Disputes Act, 1947 held that a Salesman in Pakistan Tobacco Company was not a workman. It was further held that since the Salesman was not covered by. .The definition of workman he was not entitled to raise a dispute as the principle of direct or substantial interest of workman is not involved in such a case where the Salesman constitute a different category so that there is no normal exchange of:' personnel between clerks and Salesman nor is there connection by any direct line of promotion. It was also held by the Supreme Court that while interpreting the language of a Statute the interpretation which will lead to absurdity is to be avoided and that construction be placed which would be in accord with reason and justice.
(ix) Referring to 1961 PLC 1127, it may be stated that the Supreme Court of India while construing the definition of workman given in section 2(s) of the Industrial Disputes Act,, 1947 held that Canvassing Agent of the appellant-Company was not workman. It was observed that where the main work of an employee is that of canvassing and any clerical or manual work that he has to do is only incidental to his main work which takes not more than a small fraction of time for which he is to work, it cannot be held that the employee's duties are mainly clerical or manual to include him with the definition of workman given in the above provisions of the aforesaid Act.
(x) Reverting to 1975 PLC 263, it maybe observed that the Sind Labour Appellate Tribunal while construing section -2 (i) of the W. P. Industrial and Commercial Employment (Standing Orders)
57. Ordi--nance, 1968 held that a Supervisor is not a workman within the ambit of the above provisions of the Ordinance though the Supervisor while performing his duties does some work with his hands in addition to his main work of supervision and management in the Factory. It was pointed out that since the main work being supervisory and managerial it cannot be construed as manual work. It was also pointed out that the question. Whether a . Supervisor is a workman or not will primarily depend upon the circumstances of each case as to whether a person is performing primarily supervisory and managerial work or not.
(xi) With reference to PLD 1969 Lab. 717, it may be mentioned that a D. B. Of the Lahore High Court while construing the provisions of section 2(n) of the Industrial Disputes Ordinance, "1959 observed that the test to determine whether an employee falls within the definition of workman will depend on the true nature of the duties performed by such an employee and that is direct, immediate and not sundry duties incidentally performed by him. It was also observed that a workman is employed in an industry to do skilled or unskilled work which is manual or clerical and that manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. It was further observed that since term `manual' and clerical work is used in the definition they are used to connote that it is more or less routine work not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. It. Was held that a Salesman was not covered by the above definition.
(xii) Referring to 1980 PLC 616, it may be stated that the Sind Labour Appellate Tribunal while construing the provisions of the W. P. Industrial and Commercial Employment (Standing Orders)
58. Ordinance held that it is for a petitioner to prove that he is workman within the meaning of the Ordinance. It was further held that a . Station Superintendent of Road Transport Corporation supervising work of Conductors, Elevators, Drivers, Yard Masters, Time keepers, Duty Clerks etc. Having no power of hire and fire but performing no .Manual or clerical work skilled or unskilled was not .a workman and, therefore, could not seek redress under section 259-A of the 1. R. O. l (xiii)' With reference to the case reported in 1980 PLC~ 644, it may be stated that the Sind Labour Appellate .Tribunal had reiterated the view taken by it in the above cited case and held that it is for a petitioner to prove that he is a workman with in the ambit- of section 2(i) of the W. P. Industrial & Commercial (Standing Orders) Ordinance, 1968. It was further held that an Assistant Traffic Manager, Station Superintendent and- Yard Master of Karachi Transport Corporation were not workmen as their duties do not involve manual or clerical or substantial physical work but their main work .Was of supervisory nature.
(xiv) Reverting to 1978 PLC 293, it may be stated that in this case also the Sind Labour Appellate Tribunal while construing the provision of section 2(28)- of the I. R. O., 1969 held that the burden of proof is on the respondent workman to prove that he was a workman within the definition given in the 1. R. O. It was held that the respondent being a Senior Executive in an Insurance Company drawing salary of Rs. 1,250 per month was not a workman.
(xv) With reference to 1964 PLC 347, it may be mentioned that the Chairman of the West Pakistan Industrial Court while considering the Charter of Demand, held that Chowkidars are not workmen within the meaning of section 2(n) of the Industrial Disputes Ordinance, 1959, for the reason that apart from the fact that the Chowkidar's duties do not include any sustained manual work but they owe undivided loyalty to the employer as members of the security staff and that if they would be allowed to seek the support of the union for better terms and conditions of service, it would certainly lead to clash of interest.
(xvi) With reference to PLD 1979 Lab. 415, it. May be stated that the learned Single Judge of the Lahore High Court while construing section 2(xxvid) of the I. R. O., 1969 held that a Liaison Officer of P.I.A. Was not covered by the definition of workman. It was observed that it is a well-established principle of law that in order to determine the status of an employee, his main duties and not those which are either incidental to the main duties or those which are minor or of insignificant importance are to be taken into consideration.
(b) From the above cited cases the following principles are deducible :-
5. (b)(i) The Supreme Court of Pakistan in the case reported in PLD 1961 SC 403 while construing section 2(s) of the Industrial Disputes Act, 1947 held that a Salesman is not covered by the definition of workman given in the above provision. Whereas the Supreme Court of Pakistan in the case, reported in PLD 1977 SC 237 while constru--ing section 2(xxviii) of the I. R. O. Held that a Salesman is covered by the definition of worker and workman given in the above provision.
(ii) That the words skilled, clerical and manual employed in the Martial Law Order No. 52 are to be read disjunctively. (as per PLD 1974) Kar. 261).
(iii) That an incharge, who in addition being Chowkidar supervised the work of three other Chowkidars is covered by the definition of worker and workman given in section 2(xxviii) of the I. R.
59. O. (1977 SCMR 103).
(iv) That the Chowkidars and Havildars of the Watch and Ward Department of K. P. T. Were covered by the definition of workman given in section 2(n) of the Industrial Disputes Ordinance 1959 (as per Judgment dated 19-1-1970 given by the Supreme Court of Pakistan in Civil Appeal No. K-6/68.
(v) That a shift engineer working in the Hotel Intercontinental Lahore i~ covered by the definition of workman given in section 2(i) of the West l Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (as per PLD 1973 Lab. 594).
(vi) That a sales medical representative in a -Pharmaceutical Company is not covered by the definition of workman given in section 2(i) of the W. P. Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 as he predominantly uses his skill. Or experience; as a Salesman and incidentally uses his hands (as per PLD 1975 Karl 279).
(vii) That a Canvassing Agent is not a workman within the ambit of section 2(s) of the industrial Disputes Act, 1947 as his main work is canvassing and that any clerical or manual work he has to do is incidental and constitutes a small fraction. (As per 1961 PLC 1127).
60. (viii). That a Salesman in a Tea Company is not covered by the definition of workman given in section 2(s) of the Industrial Disputes Act, 1947 as his work does not involve skilled or unskilled, manual or clerical work. (As per PLD 1969 Lah. 717).
(ix) A Liaison Officer in P. I. A. Is not covered by the definition of worker! And workman given in section 2(xxviii) of the I. R. O. (as per PLD:' 1979 Lah. 415).
(x) It has been the consistent view of the learned Sind Labour Appellate Tribunal that a person who approaches the Labourt Court should. Prove that he is worker or workman within the ambit of section 2(i)of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or section 2(xxviii) of the I. R. O.
6. In Constitution Petition No. 751/1980, a D. B. Of this Court to which one of us (Ajmal Mian J.) was a member by a judgment dated 25-1-1982 held that a simpliciter Chowkidar is not covered unless he can show that he was performing any duties which involve the work mentioned in the definition of workman given in section 2(i) of the Ordinance. It was pointed out that the petitioner had made certain averment as to his duties, which he was unable to prove and therefore, the petition was dismissed. In Constitution Petition No. 1437 of 1980 a D. B. Of this Court to which one of us (Ajmal Mian, J.) was a member by judgment dated 28-1-1982 remanded the case to the Sind Labour Appellate Tribunal in order to provide an opportunity to the parties to produce additional evidence to prove the nature of duties of the Petitioner, who was a Chowkidar.
7. (a) We are inclined to hold teat the words "any manual" and "work" employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and, therefore, they will cover a person, who per--forms any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs to a labour class. In our view the question, whether a person predominantly performs a manual work or that manual work is incidental to his main work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2(xxviii) of the I. R. O., the managerial staff or the person who supervises that work of others and draws monthly salary of Rs. 800 are excluded from the ambit of the definition of worker and work-1 man given in the above provision. It may be observed that when a Court is to determine whether a person falls within the category , of a managerial staff or within the category of worker and workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominantly performs manual work or predominantly perform managerial work. Similarly if a person falls in the class of Executives like General Manager or an Executive in a Company, in that event the mere fact that such a person uses his hands, which takes a fraction of the time of his working hours, will not make him a worker or workman within the ambit of either section 2(%) of the Ordinance or 2(xxviii) of the I. R. O. However. Where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of time as compared to the hours of duties. We cannot be unmindful of the fact that the labour laws are beneficial laws provided for the labour Class with the object to provide inexpensive and expeditious remedy before a labour Court and, therefore, the Ordinance being a beneficial enactment is to-be-construed liberally in favour of the labour class and no restriction can be placed to the scope of the definition of workman, given in section 2(i) of the Ordinance. We may again point out that the Supreme Court of Pakistan in its judgment dated 19-1-1970 in Civil Appeal No. K-6 of 1.968 in the case of the Organization of K. P. T.
61. Workers v. K. P. T. while constru--ing the definition of workman given in section 2(n) of the Industrial Disputes Ordinance, 1959, which has been reproduced hereinabove in para. 5;a)(f), held that the Havildars and Chowkidars in the Watch and. Ward Department of the K. P. T. Were covered by the above definition. It may be pertinent to mention that the definition given in section 2(n) of the Industrial Disputes Ordinance, 1959 was couched in more or less in the same words, which are employed in section 2(i) of Ordinance while defining the term workman. Mr. Mamoon Kazi had cited the case referred to hereinabove, reported in 1964 PLC 347, in which the learned Chairman of the West Pakistan Industrial Court while construing section 2(n) of the Industrial Disputes Ordinance, 1959 held that Chowkidars were not covered by the definition given in the above provision. We may point out that the view taken by the learned Chairman is contrary to the view found favour with their Lordships of the Supreme Court in the above unreported judgment dated 19-1-1970. It is true that in the case of Shahzar Khan v. Sind Labour Court, their Lordships of the Supreme Court were dealing with the definition of the workers and workman given in section 2(xxvid) of the I. R. O. And held that a Chowkidar who was not only a Chowkidar, but was also the incharge of 3 others Cbowkidar and was drawing salary of Rs. 350 p.m. Was covered by the definition of worker given in the above provision, but at the same time the Supreme Court quoted its own aforesaid judgment dated 19-7-1970 with approval and, therefore, it can be inferred that even while deciding the above case of Shahzar Khan v. Sind Labour Court, the Supreme Court was of the view that the definition of workman given in section 2(n) of the Industrial Disputes Ordinance, 1959, which is more or less identical with the definition given in section 2(i) of the Ordinance as pointed out hereinabove covers the Chowkidars and the Havildars of the Watch and Ward Department of the Karachi Port Trust.
(b) In our view the mere fact that a person is employed by the designa--tion of Chowkidar or Security Guard will not exclude him from the definition of workman given in section 2(i) of the Ordinance. The Court will have to, U determine the nature of duties. If a Cowkidar or a Security Guard performs any of the duties of the nature referred to in the definition, he will covered by the definition. It may be pointed out that in Constitution Petition No. D-139 of 1981 no plea was raised by the respondent Company in its reply to the application under section 25-A of the 1. R. O. That the petitioner being a member of the Security Staff was not covered by the definition of workman given in the Ordinance. However, after the conclusion of the cross-examination of the petitioner, the respondent Company moved an application for raising the above plea. The learned labour Court allowed the above prayer. However, it decided the same against the respondent company on the basis of the admission of one of the witnesses produced by the respondent company, to the effect that the searching of person entering and leaving the factory involves use of hands and manual work but the learned Sind Appellate Tribunal upon appeal allowed the appeal on the ground that a Security Guard was not covered by the definition.
62. Whereas in Constitution Petition No. D-204 of 1981 a plea was raised is the reply by the respondent company before the Labour Court to the effect that the petitioner was not a workman within the ambit of the Ordinance. However, in the written arguments submitted by the respondent Company, the above plea was not pressed as is indicated in the order of the learned Labour Court. In this case also upon appeal the learned Sind Appellate Tribunal has allowed the appeal on the ground that it has already taken the view in numerous cases that a Chowkidar is not covered by the definition of workman. It may be stated that the petitioner in the above writ petition was a Shift Jamadar i.e. The Incharge of the Chowkidars in addition to his being a Chowkidar.
8. It has been vehemently urged by Mr. Mamoon Kazi that the burden of proof was on the petitioner that they fall within the ambit of workman as defined in section 2(i) of the Ordinance. Reliance has been placed on the above cited three cases of the learned Sind Labour Appellate Tribunal, which support the contention of the learned counsel for the respondent. On the other hand it was vehemently urged by the learned Counsel for one of the petitioners Mr. Obaidur Rehman that as both the petitioners were charge---sheeted under the provisions of the Ordinance and as they were dismissed under the provision of the above Ordinance, they were entitled to presume that they where covered by the definition of the workman given in the Ordi--nance. In our view if an employer takes action against his employee under) the provisions of the Ordinance inasmuch as he serves a show-cause notice---, holds an inquiry, and terminates his services under the provisions of the Ordinance, in that event the employee is justified in presuming that he is covered by the definition of the workman given in the Ordinance. It may be noticed that Chowkidars or Security Guard as a class are not excluded expressly by the definition of workman given in section 2(i) of the Ordinance quoted hereinabove. The question whether a Chowkidar or a Security Guard is covered by the definition of workman given in the Ordinance will depend, on the nature of duties, as pointed out hereinabove. We are inclined to hold that. If an employer takes action under the provisions of the Ordinance against his employee the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of the workman given in the Ordinance though the charge-sheet was issued, inquiry was held, service was terminated under the provision of the Ordi--nance. In the instant cases as the respondent employers had taken actions against the petitioner under the provisions of the Ordinance as pointed out hereinabove, the burden of proof was on the respondents employers to show that in fact the petitioners were not covered by the definition of work--man in spite of the fact that the charge-sheets were issued and inquiries were held and the services were terminated under the Ordinance. In our view the learned Single Labour Appellate Tribunal has erred in not taking into consideration the admission on the part of the employer in question preced--ing to the filing of the applications under section 25-A of the 1. R. O.
9. In Constitution Petition No. D-139 of 1981, it is an admitted position that- the petitioner as a Security Guard used to use hands while searching persons who entered into and left the factory.
63. On this point there is an admission of respondent No. 1's employee who appeared as a witness, namely, the Inquiry Officer Barkat Ali Budhani. In this view of the matter, we are inclined to hold that the above petitioner is covered by the definition given in the Ordinance, whereas in Constitution Petition No. D-204 of 1981, we may again point out that according to the order of the learned Labour Cpurt the plea that the petitioner was riot covered by the definition of workman was not pressed by respondent No. 2 in the written arguments and, therefore, there is no discussion on the question of the nature of duties of the petitioner in the order of the learned Labour Court nor there is any reference to the evidence in the order of the learned Sind Labour Appellate Tribunal on the question of duties of the petitioner. In our view if the petitioner perform any of the duties referred to in the definition irrespective of the quantum, he will be covered by definition.
10. We, accordingly allow both the petitions, set aside the impugned orders. In Petition No. D-139 of 1981 the case is remanded to the learned Sind Labour Appellate Tribunal for the purpose of deciding as to whether the order of termination is sustainable on merits, whereas the case covered by Petition No. 204 is remanded to the learned Sind Labour Appellate Tribunal for deciding following two questions :-
(1) Whether the petitioner performs any duty which is covered by the definition of the workman given in the Ordinance irrespective of the quantum of such duty. The parties may also be provided an oppor--tunity to produce additional evidence on the above point if they make such a prayer.
(2) Whether the termination order is sustainable on merits on the basis of record including of the inquiry proceeding. The above two petitions stand allowed in the above terms with no order as to costs.