This appeal is directed against the decision of the learned 1st Labour Court, given on 13th April, 1980, by which while dismissing the grievance petition filed by 2 other workmen against their dismissal from service by the appellant company, it allowed the grievance petition of the respon--dent herein and directed that he be re-instated in service. This appeal was heard alongwith the appeals filed by the 2 workmen whose grievance petition had been dismissed by the learned Labour Court . This Tribunal by its order, dated 17th August, 1980, allowed the appeals preferred by the 2 other workmen and directed their reinstate--ment in service on the ground that the enquiry officer, on the basis of whose report, they were dismissed from service was neither fair nor impar--tial and hence it was-not possible to rely on the enquiry proceedings or on the report of the enquiry officer.
The appeal of the company against respon--dent Bakht Rawan was also allowed on the short ground that he was admittedly employed as a senior Chowkidar and hence was not a work man for the purposes of the Standing Orders and thus not entitled to file a grievance petition against the termination of his services under clause (3) of Standing Order 12 read with section 25-A, I. R. O.
Against the said decision, respondent Bakht Rawan filed a Constitutional Petition to the High Court.
In the High Court, it was contended on behalf of the res--pondent that as the appellant company had admitted in paragraphs 2 and 3 of their reply statement filed before the learned Labour Court that action had been taken against the respondent in accordance with the prescribed procedure as. Laid down in the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, hereinafter referred to as the Ordinance, the appellant company had impliedly admitted that the respondent was covered by the definition of "Workman" for the purposes of the said Ordinance. The High Court, in view of the above assertions made in the reply statement of the appellant company and the further fact that it had not raised, in its .Reply statement, the objection that the respondent was a workman for the purposes of the aforesaid Ordinance, by its judgment, dated 28th January, 1982, set aside the order of this Tribunal, dated 17th August, 1980, and has remanded the case to this Tribunal with the observations that the parties shall be free to raise what--ever legal pleas they wish to raise and that in case the Labour Appellate Tribunal decides to allow the appellant company to raise the ground that the respondent is not a workman for the purposes of the aforesaid Ordi--nance, in that event, an opportunity should be provided to the parties to produce additional evidence to prove the nature of duties of the respon--dent in order to determine whether his duties were such as are covered by the definition of "workman" as given in subsection (2) (f) of the Ordinance.
2. In pursuance of the judgment of the High Court, by order, dated 24th February, 1982, recorded on the Order-sheet, f permitted the appel--lant company to raise the issue whether the respondent fall within the definition of "workman" as given in the Ordinance and allowed both parties to lead evidence on this point. The appellant company led the evidence of the then factory manager at their Layari Factory, Dr. S. A. J. Shah, who produced along with other documents the original appoint--ment order in the appellant company of the respondent.. The appellant company also filed the Duty Roster of the Chowkidars with effect from 23rd July, 1977 to 2nd October, 1977. The relevancy of this Roster for the above days lies in the fact that the respondent was dismissed from service, vide order, dated 3rd October, 1977, in respect of an incident which took place on 15th June, 1977, in which the respondent is alleged to have not only participated in an illegal strike and joined in raising indecent slogans and used abusive language against the management, but also incited other worker-to join the strike. The respondent examined only himself and stated what according to him (sic) was the nature of his duties. Another employee of the appellant company, Abdullah, was examined as a Court witness.
3. According to the evidence given by the respondent before this Tribunal, though he was appointed by the appellant company as Chowki--dar, his duties as Chowkidar were - (i)if any workman arrived late, he was to make such a report to the management ; (ii)When workmen wanted to leave the factory at the close of work, he was required to check their Gate Passes and to record their time of arrival and departure ; (i.e)to search the workmen when leaving the factory (iv)when any consignments left the factory, he was required, to phy--sically check the same and see that the items tallied with the gate pass and in case of discrepancy to report the matter to the authorities (v)to clean the car of the factory manager ; (iv)to act as Malhi of the garden in the factory by watering the same; (vii)under the specific directions of the management to switch of cer--tain machines and motors in the factory ; (viii)at times used to load and unload goods arriving at or leaving the factory ;"
4. On the other hand, according to Dr. Shah, the factory manager under whom the respondent was working at the relevant time, the duties of the respondent were- (i)to do Chowkidari duty at the gate of the Laboratory ; (ii)to collect gate passes from persons going out of the Laboratory (occasionally) and in respect of goods leaving the factory."
5. Since widely conflicting evidence has been given by the 2 parties as to the exact nature of the duties which the respondent was required to perform or was performing, it has to be examined which version is the correct one and to what extent.
6. The first item of work, which according to the respondent, he was required to perform was to report to the management about the late arrival of any workman. No such report has been produced by the res--pondent. Dr. Shah, the then factory manager, has testified that neither it was the responsibility of the Chowkidars to report to the management about late arrival of any workman nor any such report was ever submit--ted by them to the management. He explained that the system in the appellant factory was of self-punching cards and the workmen were required to punch their cards, both at the time of arrival as well as at the time of the departure, though the punching Machine which automatically recorded the time of arrival and departure of the workmen. This machine, according to the evidence of witness Abdullah, was kept inside the factory. In view of this evidence. I am unable to hold that the res--pondent or any other Chowkidar in the appellant . Company was required to record or report to the management the late arrival of any workman.
7. The next item of work which according to the respondent he was required to perform as a watchman was to check the gate passes of the workmen and record the time of arrival and departure. Again, the res--pondent was unable to produce any record or entry made oy him or any other watchman at the time of arrival or departure of any workman. Moreover, Dr. Shah has strongly denied that any such task was assigned to the respondent or any other watchman and explained that this work was being done through the punching machine. In the presence of the self-pun--ching machine it would be clearly unnecessary to require the watchman to perform this work. -No workman was examined by the respondent to establish that he had checked his gate pass and recorded his time of arrival or departure or of any other workman. I am therefore, constrained to hold that there is no tangible evidence to support the contention of the respondent that he was required to perform this type of work.
8. The next item of work which according to the respondent he was required to perform was to search the workman when they were leaving the factory. Again, no workman was examined by the respondent, who was searched by the respondent or any other watchman. On the other hand, it was testified by Dr. Shah that there was no system of searching the workman in the factory of the appellants and the workmen were never searched. Although one workman, Abdullah, was examined, no question was suggested to him on behalf of the respondent indicating that he was ever searched by the watchman at the gate or such practice was resorted to in the factory of the appellant or that the watchman was required to note the time of arrival and departure of the workman and report the late arrivals to the management. I am, therefore, of opinion that there is no tangible evidence in support of the respondent's contention that it was a part of his duties as a watchman to search the workmen leaving the factory.
9. The next item of work, which according to the respondent, he was required to perform as watchman was to physically check the con--signment of goods leaving the factory and to see that the item tallied with the gate pass and in case of any discrepancy to report to the manage--ment of the factory. Again, the respondent has not been able to produce a single report made by him or any other watchman to the management regarding the discrepancy in the consignment of goods leaving the factory and the gate pass. Further more, it has been strongly denied by Dr. Shah that the watchman at the gate was required to physically check the con--signment leaving the factory with the gate pass. A sample of gate pass was produced by Dr. Shah. I find that all the entries therein are in English and moreover the description of goods is given in a rather techni--cal form. It would, therefore, be difficult for a watchman to be able to physically tally the consignment leaving the factory with the gate pass The gate pass, however, bears the signature of the Chowkidar and it is on account of that signature that the Chowkidar is partly held responsible for the goods leaving the factory as frankly admitted by Dr. Shah in his evidence. But the mere fact that the Chowkidar along with the storekeeper are responsible for the goods leaving the factory would, in my opinion, be insufficient for holding that the Chowkidars were required to physically check the goods leaving the factory and verify them with the gate pass which presumably he could not read.
10. The next item of work, which according to the respondent, he was required to perform was to clean the car of the factory manager. Again, there is no evidence in support of this claim beyond the bare word of the respondent. No other workman was examined to testify that this work was being performed by the respondent. Even Abdullah, the only workman examined before this Tribunal, was not asked by the respondent or his learned Advocate that this work was being performed by the res--pondent. On the other hand, Dr. Shah, who was then .The factory mana-- ger, has strongly denied that the respondent was required to clean his car. I am, therefore, of the view that it has not been established that the res--pondent was required to perform this item of work.
11. The next item of work, which according to the respondent, he was required to perform was to act as malhi of the garden in the factory of the appellants and to water the same. Again, there is no evidence beyond the bare word of the respondent that he was required to perform this work. He denied that any malhis were employed by the factory but expressed ignorance regarding the fact whether the company had engaged some workman for watering and looking after the garden or that these workmen are being paid overtime for this Job Dr. Shah has testified that the Chowkidars were ever required to do any work in the garden or to water the garden and that this work was being performed by a workman, by name Abdullah who was paid overtime for the work. This said workman Abdullah, was examined by this Tribunal and he testified that he used to look after and maintain the garden in the factory, in addition to this other work in the factory and for this work he was paid an additional amount, which originally was Rs. 20 per month but it was subsequently raised to Rs. 40 per month and finally to Ifs. 100 per month. He explained that although the factory starts at 8. 00 a.m. He cones to the factory at 7.00 a.m. And works in the garden from 7 to 8 a.m.
During the lunch break from 12-30 p.m. To 1-15 p.m., and also, if necessary, after the factory closes at 5-00 p.m. The witness produced 8 vouchers showing payment made to him from February, 1977 to September, 1977 at Rs. 40 per month for doing gardening work. This evidence finally establishes that witness ,Abdullah was performing the work of looking after and watering the garden of the factory of the appellant and the respondent had no hand in this work and he has falsely claimed that he was required to water and maintain the garden. His false claim not only demolishes his case in respect of this item of work but reacts on his claim in respect of other items of work, since it shows that he is an untruthful witness. Even Mr. Shahani, the learned counsel of the respondent, was constrained to admit that the claim of the respondent that he was, required to perform this work stands negated.
12. The next item of work, which according to the respondent, he was required to perform was to switch of certain machines and motors in the factory. The respondent was unable to give a description of the motors and machine which he was required to switch of. He also admitted in this cross examination that he has no knowledge of electrical or' laboratory work. It is unlikely under the circumstances that the respondent would have been required to perform this work. Moreover, it is hardly believable that when the factory was closed, any machines and motors still would be working. Dr. Shah has testified that no such work was ever assigned to or performed by the respondent or any other watchman.
13. The last item or work, which according to the respondent. He was required to perform was to load and unload goods arriving at and leaving the factory, Dr. Shah strongly denied that the respondent or any other watchman was required to perform his work. He has explained that the work of loading and unloading of goods used to be done by the storekeeper and the workmen employed under him. He has further explained that the watchman were to remain on duty at the gate of the factory and they were strictly forbidden to leave the same. In the circum--stances, it is not shown how the watchmen would be assisting in the load--ing or unloading in the store section.
No particulars of the days on which such work was done by the watchman or of the consignment which they helped to load or unload was given by the respondent. I am accor--dingly of opinion that it is not established that any such work was ever done by the respondent or any other watchmen.
14. It appears that the main work of the watchman employed in the appellant factory was to perform Chowkidari duties as the main gate of the factory, to open the gates of the factory whenever a vehicle entered or left the factory premises and further it was their duty to collect the gate passes in respect of goods leaving the factory. It was sought to be con--tended by Mr. Shahni that even if a small part of work which respondent was required or employed to perform constituted manual or clerical work, he is deemed to be a workman for the purposes of the Standing Orders. In support of his contention, the learned counsel relied upon the decision of the High Court in the case of 4bdul Azlz v. Sind Labour Appellate Tribunal (Constitutional Petition No. D- 204/1981). In that case, it was observed by a Division Bench of the High Court as follows :- "In our view the mere fact that a person is employed by the desig--nation 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 determine the nature of duties. If a Chowki--dar or a Security Guard performs any of the duties of the nature referred to in the definition, he will be covered by the definition."
15. It was further held by the Division Bench in the Above case-
(a) that if an employer takes action under the provisions of the Ordinance against his employee the burden of proof is shif--ted on him to prove that the employee concerned does not fall within the definition of workman given in the Ordinance though the charge-sheet was issued, inquiry was held and service was terminated under the provisions of the Ordi--nance and
(b) 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 insigni--ficant 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."
16. The question of burden of proof is material only where no evidence is led in the case by either party or where the Court finds the (e.i)--dence so evenly balanced that it can come to no definite conclusion. However, as held by the Supreme Court of Pakistan in the case of Qaser A Khatoon v.
Abdul Khaliq,(PLD 1971 SC 334), the question of onus of proof loses its impor--tance after all the relevant evidence has teen adduced and placed on the record. The Indian Supreme Court has also taken a similar view in the case reported as 1Varayan v. Gopal (AIR 1960 SC 100) and has observed that at the end of a case when both the parties have led evidence and the conflicting (e.i)--dence can be weighed to determine which way the issue can be decided, the abstract question burden of proof becomes academic. In the instant case, as both parties-have led evidence and this evidence has been assessed with same care the question of burden of proof becomes unimportant.
17. The view taken by the Division Bench that in the cases of a per--son admittedly belonging to the labour class even insignificant use of hands in the performance of his duties or the performance of manual work which takes a fraction of time as compared to the hours of his duties will bring him within the definition of 'workman' as given in section 2 (i) of the Ordinance. Is based on 2 grounds, firstly, that the word 'any' qualifying manual or clerical work' refers to the quantum of work and hence the smallest or slightest amount of work will bring a person belonging . To the labour class within the scope of definition of 'workman' as given in the Ordinance, and secondly, upon the decision given by their Lordships of the Supreme Court in Civil Appeal No. K-6/1968 and in the case reported as Shahzar Khan v. Sind Labour Court No. IV. (1977 S M R 103)
18. In my humble view, and I say with utmost respect, the word 'any' in the definition of 'workman' as given in the Ordinance refers not to the quantum of manual or clerical work but to all kinds of manual or clerical work. In other words, if an employee performs any kind of manual or clerical work for reward or hire, he is deemed to be workman as defined in the Ordinance. In the case of Bound v. Lawrence ((1982) 1 Q B 226 (CA) which has been referred to by their Lordships of the Division Bench in the above judgment, Lord Esher, M. R., while considering the issue whether a grocer's assistant was performing manual labour, observed as follows :- "the appellant was employed as a grocer's assistant in a shop, and his business was take orders from the customers and to carry them out. In doing this he may have to show goods, and if the custo--mers 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 hands is manual labour, so as to make the person whit does it a manual labourer."
19. In the same case, Fry L. J., while holding that the manual work which the grocer's assistant was performing was merely incidental to his main work of selling goods to the customers, observed as follows :- "It is difficult to imagine any work done by man so purely intel--lectual as to require no kind of work with the hands ; and the con--verse 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 deter--mination of what is substantial and what is 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 know--ledge and skill required in selling the goods to customers is more important than the manual work that he does, and the letter is an incident of his employment."
20. In another case from the English Jurisdiction, Stone (F. & F.) Lightin Radio Ltd. v. Haygarth, ((1966)
3 All E R 539(HL)) Lord Person while considering the issue whether a repairer in a factory was performing manual labour, observed as follows :- "A person is not employed in --manual labour' for the purposes of any of the acts, if his occupation as primarily or substantially an activity of a different kind and the manual- work that he does is merely ancillary or accessory to that activity Example of activities which are primarily non-manual, though involving some manual work, are (i) the work of a painter, sculptor or lithogra--phic artist :
(ii) managerial or supervisory work ; (i.e) selling in a shop ; (iv) clerical work ; (v) driving a vehicle or acting as conduc--tor of a public service vehicle. In the sphere of repairing there `, seems to be no decided case, but it can be suggested with, at any a; rate, plausibility, that an artist restoring or even cleaning a picture, ,. An expert in oriental ceramics repairing a Ming vase, or an archaeo-- logist piecing together fragment of an Egyptian papyrus or Linea script, would not be held to be employed to manual labour."
"21. A Division Bench of the erstwhile High Court of West Pakistan at Lahore, in the case reported as Chairman, Brooke Bond (Pak.) Ltd. Karachi v. General Secretary, the Union Karkunane Brooke Bond, Rawal--pindi (PLD 1969 Lah.717), laid down following test for holding whether an employee was a workman for the purposes of section 2 (n) of the Industrial Disputes Ordinance, 1959, wherein the definition of "workman" was similar to the definition given in section 2 (1) of the Ordinance :- "The true nature of the duties performed by the employer is the determining factory in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is inciden--t tally required to prepare a statement, maintain .a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test therefore, is to look to the direct, immediate and the substan--tial part of the work for which he is employed and not to the sundry duties incidental performed by him."
22. In Words and Phrases (Permanent Edition), Vol. 26," manual labour" has been defined thus :- "Manual Labour" refers to labour in which the physical element predominates the mental element.
State v. Ash 87 p. 2d 270, 272, '` '53 Arix.
197. The term `manual labour', in its ordinary and usual meaning and acception, means labour performed by and with the hands or hand, and it implies the ability for such sustained exercise and use of the hands or hand at labour as will enable a person thereby to earn or assist in earning a livelihood. Russell Flour & Feed Co. v. Walker, 298 p. 291, 292, 146 Oki. 164."
23. The same Volume of Word & Phrases refers to the case of Prison Guards and prison matons, which came up before an American Court for the purpose of determination whether they were engaged in manual labour. The view as recorded in the said volume in this behalf is as follows :-- ---Prison guards and prison matron whose duty was to watch inma--tes of prison to keep them from escaping, and whose compensa--tion was fixed on annual basis for many years by the Legislature, were not engaged m "mechanical" or "manual" labour with pro--tection of minimum were Law. Rev. Code 1928 & 1350 as amen--ded by Laws 1933. C.
12. A "guard" is a man or body of men stationed to protect or control a person of position : a sentinel, State v. Ash, 87 p. 2d 270, 52 Arix. 197."
24. It is true that the word labour" appearing in the definition of workman as given in the Ordinance has been replaced by the word 'worker but this mo0ifip#tj9n, in my humble opinion, would not alter the position` that if any kind or manual or clerical work for which an employee is hire which bring him within the definition of workman for the purposes of the Ordinance and not the quantum of manual or clerical work, however, insignificant or incidental it may be to his main work.
23. The question whether a particular employee belongs to the labour class in turn will depend upon the nature of work which be employed to do or is required to perform. In his duties mainly involve the doing of manual work he will be deemed to belong to the labour class, although the work may not be of arduous nature. In the case of watch. Man and security guards, who are required to be persons of trust and confidence, they would not, in my humble opinion, be deemed to belong to the labour class unless they are required to perform duties involving substantial amount of manual work.
26. I will now refer to the 2 judgments of the Supreme Court on which reliance has been placed by their Lordships of the Divisions Bench of the High Court. In Civil Appeal No. K/68, the facts were that the Organization of Karachi Port Trust Workers, which was a registered trade union, raised certain demands on behalf of its members, who were emp--loyed as Chowkidars and Hawaldars in the Watch & Ward Depart--ment of the K. P. T. The demands related to the terms and conditions of their service and to the re-instatement of some of them whose services had been terminated by the K. P. T. The contentions raised on behalf of the workmen before the Supreme Court by their learned counsel appear in the penultimate paragraph of judgment of their Lordships which reads as under :--- "It is contended by the learned counsel for the appellant that the Industrial Tribunal had completely misdirected itself by adopting a definition of the term "workman" as used in the Ordinance which was wholly against its letter and spirit and that the learned Judges of the Division Bench is not correcting this patent illegality have declined to exercise their constitutional jurisdiction. It is pointed out that the Chowkidars and Huvaldars do manual work and were therefore, included in the definition of "workman" as contained in section 2 (n) of the 1959 Ordinance and that the legislative inten--tion is manifested by the fact that they were expressly excluded from that definition by subsequent legislation, viz. Section 2 (4) of the West Pakistan Industrial Disputes Ordinance enacted in the year 1968. The latest Ordinance on the subject, namely, the Indus--trial Relations Ordinance of 1969 (XXVIII of 1969) has resolved all doubts on the point. "Workman" as per definition contained in section 2 (xxviii) of this Ordinance, cover all employees of an industrial establishment, whatever 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."
27. In view of the above contention, the learned counsel for the K. P. T. Stated at the door that the K.
P. T. Would have no objection to the adjudication of the disputes which have been raised before it by the workers' union as existing disputes. It appears it was on the basis of this statement that the appeal was allowed and the case was remanded to the Industrial Court, with the direction to decide the dispute raised before it according to the merits accepting the status of Chowkidars and Haval--dars as "workman' in the establishment of the Karachi Port Trust.
28. In the subsequent case of Zhahzar Khan, their Lordships of the Supreme Court referred to their judgment in Civil Appeal No. K-6/1968, but decided the case on the footing that the High Court had misconceded the law applicable to the facts of the case in as much as it had applied the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, instead of the Industrial Relations Ordinance, 1969. This Tribunal in the case of Johnson & Johnson (Pakistan) Ltd. v. Zubair Ahmed and another(1980 PLC 622), has discussed this aspect of the case and the effect of the amendment in clause (3) of Standing Order 12.
29. A Division Bench of the Karachi High Court, in Writ Petition No. D-757/1980, had upheld the order of this Tribunal that a Chowkidar simplicitor is not covered by the definition of "workman" as given in the Ordinance. This judgment has been referred to by their Lordships o Division Bench, in the Constitutional Petition preferred by the respondent. I have already examined in some detail the nature of duties which the respondent was employed to do. His. Principal and main duties were for guard the property and the premises of the appellant company and to ensure that no unauthorized person enter the factory and no goods are taken out from the factory without permission. Any manual duties which the respondent was performing or was required to perform were not only minimal but were incidental to the essential duties of the respondent as Watchman to safeguard the property of the appellant company.
30. For the reasons discussed by me above, I am inclined to the view that the respondent was not employed to do nor he was performing any manual or clerical work and hence he is not a workman for the pur--poses of the Ordinance. Consequently his grievance petition against his dismissal from service is not maintainable. I would, therefore allow the appeal of the company and set aside the decision of the learned Labour Court.