DECISION The respondent, who was employed as a Shift Jamadar of the appellant establishment, was issued a charge-sheet, dated 18th January, 1979, the material part whereof reads as follows :-
2. The respondent challenged the orders of his dismissal from service before the learned Sixth Labour Court through a grievance petition filed under section 25-A, I. R. O. The appellant resisted the respondent's grievance petition mainly on the ground that it was not maintainable as the respondent was not performing any ---,manual or clerical work but was working as a Shift Jamadar (Security Staff) and hence was not a workman for the purposes of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that further the complicity of the respondent in the theft had been duly established in a fair and impartial enquiry held against him The learned Labour Court came to the conclusion that charge of mis--conduct against the respondent had not been established. :t also repelled the contention of the appellants that the respondent was not a workman for the purposes of the Standing Orders mainly by reason of the fact that this issue was not pressed by them in their written arguments On appeal to this Tribunal, it was held that as the respondent was a Shift Jamadar, he did not fall within the definition of workman as contained in the Standing Orders and hence his grievance petition against the termination of his services was not maintainable. Dissatisfied with this order the respondent workman preferred a constitutional petition to the High Court which has set aside the order passed in appeal by this Tribunal and remanded the appeal with the direction for deciding the following two questions:
(i) Whether the petitioner performs any duty which is covered by the definition of the workman given in the Ordinance irres--pective of the quantum of such duty. The parties may also be provided an opportunity to produce additional evidence on the above point if they make such a prayer.
(ii) Whether the termination order is sustainable on merits on the basis of record including of the inquiry proceeding.
3. In compliance with the directions of the High Court, both parties were allowed to lead evidence on the two issues framed by the High Court. The appellants examined the Labour Officer, Muhammad Ali Asghar, who produced a large number of documents, while the res--pondent filed his own affidavit and that of one Muhammad. Siddique, who was previously employed as Godown Keeper in the appellant Com--pany. The substance of the evidence of Muhammad Ali Asghar, the Labour Welfare Officer in the appellant Company, is that there are three Shift Jamadars in the appellant Company, that each shift has its own Shift Jamadar that it was the duty of the Shift Jamadar to supervise the work of the Chowkidars over whom he exercises control and supervision, that the Shift Jamadar used to take trial of the newly-- appointed Chowkidars and on his recommendation of fitness the Ma--nagement used to appoint the new Chowkidars, that resignation of Chowkidars and their applications for leave used to. Be sent through the Shift Jamadar with his recommendations which were ordinarily given effect to, that disciplinary actions against Chowkidars used to be taken upon the report of the Shift Jamadar and that the Shift Jamadar was neither required to do any clerical or manual work nor even he was required to take round of. The factory. The main document produced by this witness is the order, dated 1st April, 1977, by which the respondent was promoted as Shift - Jamadar. As the said order lists the duties of the Shift Jamadar, it is important and hence it is repro--duced below in extensor: "Mr. Abdul Aziz son of Saidullah.
Sub: PROMOTION AS SHIFT JAMADAR Reference to. Your application dated 9th March, 1977 the manage--ment is pleased to promote you as Shift Jamadar with effect from Ist April, 1977.
As Shift Jamadar you will be responsible to assign duties of the Chowkidars of your shift daily, and will supervise their working.
As Shift Jamadar you will be in the managerial grade and will look after the Welfare. Of the management.
As Shift Jamadar you will recommend appointment, leaves, pro--motions, transfers of the Chowkidars working under you.
After completing the probationary period as Shift Jamadar you will be given an increment according to the rules of. The Company.
We hope that you will in the interest of Company devote your full attention in performing your duties as Shift Jamadar. for Central Cotton Mills Ltd.
Sd.) "GENERAL MANAGER"
The authenticity of the said promotion order and its contents can--not be doubted in view of the fact that the appellant has appended his signature to the same in token of having received the original copy of the order. A bare perusal of the said document indicates that the respondent was to be deemed to be in the managerial grade and that he was responsible for assigning duties of Chowkidars of his shift, supervising their duties and recommending their appointment, leave promotion and transfer. Furthermore, according to the promotion order there were to be about seven to ten Chowkidars under the control and supervision of the respondent. That the respondent was in fact performing the duties detailed in his promotion order is clear from the documents C to P appended to the evidence of the Labour Welfare Officer, Muhammad Ali Asghar. These documents show that the appellant, in his capacity as Shift Jamadar, was recommending the appointment of Chowkidars, the acceptance of the resignations of Chowkidars, grant of loans and leave to them and the taking of diciplinary action against them.
4. Respondent Abdul Aziz, on the other hand, in his evidence before this Tribunal asserted that the major part of his work was manual and specially referred to the following pieces of manual work, which , according to him, were being performed by him as Shift Jamadar :--10
(a) he alongwith the Chowkidars used to open and close the main gate for allowing transportation of all types of pass through;:.,
(b) in case there were no loaders available or the number of workers was not sufficient it was his job to help to unload bales of cotton ;
(e) to open and close the doors of godowns in the factory where cotton goods for export were, stocked;
(d) to count the bales so loaded and unloaded and. Report the counting to the Head Jamadar, and
(e) to personally do fire-fighting service work whenever need arose for the same.
Now according to the order of promotion y of the respondent, seven to ten Chowkidars were to be under the control and supervision of the respondent in each shift, but even if the version of the respondent be accepted at least five to six Chowkidars were to work under him in each shift. Since there are only two main gates in the factory of the appellant's establishment, it is unlikely that less than two Chowkidars would remain on duty at each gate during their shift hours. In the presence of these two Chowkidars it is unlikely that the Shift Jamadar would also be required to open the gates of the factory. The fact that two Chowkidars used to remain at each gate of the factory has also been admitted by Muhammad Siddique, the witness of the respondent. This witness has further admitted that the loading and unloading of cotton bales was done through a Contractor and that it was his duty to count raw cotton bales and bale bags as per circular, dated 12th March, 1976, which bears his signature in token of having received a copy of the same. The said circular clearly specified that cotton trucks will be unloaded under the supervision of the gate-keeper (who is not the Shift Jamadar or even the Chowkidar), who will count the cotton bales carefully and thereafter .
He will get the lot entered in his receipt ledger and will hand over the bales to Godown Clerk and proper arrival receipt issued to the Truck Driver signed by the Excise Incharge. The circular' provides that in case the cotton arrives in of hours the Gate Jamadar will inform the Time Keeper on duty who will supervise the unloading and will carefully check and count the bales. It is, thus, clear from the circular that the Shift Jamadar was not required to check the loading and unloading of cotton or to count the bales of cotton entering add leaving the factory, Furthermore, he was not required to assist to the loading and unloading of bales as this work has to be done by the labour of the Contractor. No doubt, in his affidavit before the learned Labour Court, Muhammad Siddique has stated that it was the function of the respondent to open the main gate, to count raw cotton bales, to count cotton waste bags and to count yarn bales but in view of his admission in his cross- examina--tion, - the three circulars laying down the procedure regarding the receipt and despach of raw cotton, the Office Order laying down the functions of the Shift Jamadar and the further fact that Shift Jamadar hall seven to ten Chowkidars working under him, it is not possible to believe that the Shift Jamadar himself was required to do or was required to open the main gate of the factory or even doors of the godowns which were to be watched by Chowkidars appointed by the Shift Incharge. As regards the counting of bales, assisting in the loading, the unloading of bales and the counting of yarn bales, it is clear from the circular produced by Muhammad Siddique, who is a dismissed employee of the appellant Company, and his admissions in cross-examination that this work was required to be done by him and not by the Shift Jamadar.
5. It has also been claimed by the respondent that he was required to do fire-fighting work in the factory. However, he has failed to establish his claim in this behalf. Apart from the fact that beyond his bare word there is no other evidence in support of his claim, the respondent himself in his cross-examination has admitted that Muhammad Fazil was the fireman in the factory and that he (the respondent) has neither any certificate of fireman nor -has he taken any training or undergone any course in fire-fighting or as a fireman in any institution. The respondent further has failed to give any instance when he had actually done fire-fighting work in the factory. In the circumstances no reliance can be placed on his bare, word that he was required to do fire-fighting work in the factory.
6. There is, however, tangible: evidence to establish that the respon--dent was required to do certain work of manual nature. Office Order No. 41, dated 11th March, 1975, produced by the appellant Company through witness Muhammad Siddique, provides that "in case of rainy A season, the Security Staff is responsible to cover the cotton bales lying in yard with tarpaulines and in case of shortage of tarpaulines they will take of the tarpaulines from the' Waste Section and will cove the bales" This is undoubtedly work of manual nature. Since the respondent belongs to the Security Staff, as admitted by the appellant in their written statement, it would appear that the respondent was required to undertake at least one type of work involving manual labour. I would, accordingly, answer the first issue framed by High Court in the affirmative.
7. It remains to be considered whether the charge of misconduct levelled against the respondent was duly established. The allegation against the respondent, as contained in the charge-sheet, dated 18th January, 1979, is that during his shift, Muhammad Sajawal and Muhammad Rafiq committed theft of two bales of card fly. This allegation, as recorded in the charge-sheet, does not constitute theft or any other misconduct for the purposes of clause (3) of Standing Order 15.
However, the finding of the Enquiry Officer is that the respondent was equally responsible for the theft of the two bales of card fly and it was on the basis of this finding that the respondent was dismissed from service. An examination of the evidence led before the Enquiry Officer indicates that this finding of the Enquiry Office is not based on correct appreciation of the evidence. The main witness in the enquiry was the Security Incharge, Abdul Lateef. He has stated that he had apprehended red handed, on the night of 17th January, B 1979, Muhammad Sajawal, Chowkidar and Muhammad Rafiq, Operator while they were committing theft of two bales of card fly. All that he has stated against the respondent is that during his (respondent's) shift the two bales of card fly had been thrown over the outer wall of the west godown. Apart from the fact that the witness does not state how he came to learn that the bales of card fly were thrown over the wall during the shift of the respondent, the mere fact that they were thrown over the wall during his shift does not by itself indicate that the respondent was responsible for the theft or had any hand in the commission of the theft of the two bales. The remaining three witnesses, whose statements were recorded in the domestic enquiry. Namely, Shift Jamadar Darya Khan, Chowkidar Muhammad Hayat and Chowkidar Sikandar Khan, have improved upon the evidence of the Security Incharge and given a somewhat different version. According to them the two persons who were apprehended by Lateef while com--mitting theft of the two bales namely, Muhammad Sajawal and Muhammad Rafiq, had told them that it was the respondent who had thrown the two bales over the wall of the west godown during his shift for the purposes of committing theft. Now, in the first place, if the two suspects had made such a statement at the time that they were apprehended by Abdul Lateef this statement would have been made in the presence and within the hearing of Abdul Lateef but Abdul Lateef himself does not say that any such statement was made to him by the two culprits. Furthermore, neither Muhammad Sajawal nor Muhammad Rafiq were examined before the Enquiry Officer. As such, at best there was a mere suspicion against the respondent that he may have been involved in the commission of the theft by Muhammad Sajawal and Muhammad Rafiq but there is no tangible evidence establish--ing his complicity in the theft. It was sought to be urged by Mr. Mahmood Ghani, the learned counsel for the appellant-Company, that there was evidence to indicate that the respondent was waiting on the road for his two accomplices but the evidence led in the case in fact indicates that after his shift was over, the respondent went home and on the way took a lift on the cycle of Habibur Rehman's, an employee of Indus Jute Mills Limited. I am, therefore, of opinion that the charge of complicity in the theft of the two bales of card fly has not been established against the respondent.
8. The upshot of the above discussion is that I would agree with the view taken by the learned Labour Court , in the light of the observations of the High Court and the issues framed by it, that the respondent is entitled to re-instatement in service. The learned Labour Court has allowed the respondent full back benefits from the date of dismissal. However, in view of the fact that the legal position with regard to the status of the respondent was not quite clear, as there were authorities for the view that a Chowkidar or Head Chowkidar is not a workman for the purposes of the Standing Orders, and the fact that the proceedings in the Courts have dragged on for almost four years I would allow the respondent seventy-five per cent of the back benefits. With the above modification the appeal stands dismissed.