' The facts briefly stated are that the respondent, Ghulam Hyder and five others were removed from service by their employers the appellants Messrs Zaiba Textile Mills in the year 1976. They sent grievance notices to the appellants and ultimately filed applications under section 25-A I.R.O. 1969, in Labour Court No, IV, Karachi, their grievance having not been redressed. The appellants raised the pleas amongst others that since there were less than 20 workers employed in the establishment since March, 1975, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would not be applicable to the case of the respondents and that their applications were also barred by limitation. The learned Labour Court allowed the applications of the respondents, directing their re-instatement and granting back benefits, vide its order, dated 21st February, 1977.
2. The above order was challenged in appeal before this Tribunal and this Tribunal, vide its order, dated 20th July 19.77 remanded the case to the Labour Court, finding that the plea of limitation though taken was not decided by the learned Labour Court and directed to decide the same and theft dispose of the case on the basis of such findings. Thereafter, it appears that the case was transferred to the learned Labour Court No, III, Karachi, and the learned Labour Court, vide its order, dated 29th April, 1978 finding the time limit as laid down by section 25-A, subsection (I) I R.O. 1969, allowed the same directing the re-instatement of the respondents with back benefits as already directed by the learned Sind Labour Court No, IV in its order, dated 2Ist February, 1977. This order of the learned Labour Court No, III was challenged in this Tribunal in appeal and this Tribunal, vide its order, dated 19th February, 1979 coming to the conclusion that there were more than 20 workmen in the employment of the appellants and, therefore, the Standing Orders Ordinance was applicable and also finding the other pleas including the plea of limitation in favour of the respondents, dismissed the appeal. The appellants moved the Hon'ble High Court in Constitutional Petition and the High Court, vide its order, dated 3rd February, 1983, remanded the case to this Tribunal only on the question whether the duties of the two Chowkidars employed in the appellant establishment were such, as would bring them within the meaning of workmen as defined in section 2 (1) of the Standing Orders Ordinance, in order to attract the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, to the case of the respondents. It was further directed that the parties shall be allowed an opportunity to lead evidence and the appeal will be disposed of accordingly.
3. The parties have examined evidence in support of their respective cases. The appellants have examined Shahbaz Hussain, the working partner of the Mills, whereas the respondents have examined one of them, namely, Ghulam Hyder, admittedly the two Chowkidars, namely, Subhanullah and Abdul being no more in the employment of the Mills.
4. I have persued the evidence recorded and have also heard the learned counsel appearing on behalf of the parties, Mr. Khalid Javed for the appellants and Mr. Syed Izhar Ahmed for the respondents. Mr. Khalid Javed for the appellants has mainly contended that the two Chowkidars, Subhanullah and Abdul were not workmen within the meaning of section 2(i) of the Standing Orders Ordinance, 1968, as being Chowkidars, they were not doing any manual work and, therefore, would not be included in the, workmen to be more than 20 to attract the applicability of the Standing Orders Ordinance. On the other hand, Mr. Syed Izhar Ahmed, the learned counsel for the respondents has contended that the main duties of the Chowkidars admittedly were to open and close the gate and also to search the {{BLUR PAGE}} persons of the workers going out of the mills when suspected and since that process involved significant use of Iiii1dS'',14h8liChoW1cidars were definitely doing manual work within the mean* of &Million 'Of workmen as defined in section 2 to of the S.Hiding OrdeislOidinatice,4968,4nd if they are included itiVie'Worktileit'FICitiloyed byhtlYeifppellant as` ithlishment they would exceed dtfi'nitel '11:Va'nierthe StandinglONers Ot' iriniic would be applicable to the case of f iftispOndents.
' S. On scrtiting of the evidence, I 'find -that Shahbaz Hussain, the working partner bflhe appellants mills, the onlyAWitriess examined on behalf of the appellants has clearly admitted in his evidence,,that the Chowkidars used to open and close the gate and alsqfppid,to; search' pgrws of the workers going out of the mills whenever they rwOrebr.,uopestptin ,,71 further find that such duties of the Chowkidars the duties enumerated by the respondent, Ghularn Hyder, in his deposition before this Tribunal. He has clearly deposed, that ditt.gliowlcjAmillsgd to take search of the workers of the mills %dual getting-Anside,thelpaills land going outside the mills while they 4 were ottingitttite ggel A ll-pags,fiwtheitdeposed that the gate of the mills alaoiated t(*)be opened gridt4o.s#014,0e Chowkidars. He has even gone to theintent to'Sayttludslit049.9.Ilkiwhkh Mer(9.1g)..Ging brought to the mills were alsoto be removeldibefothenOwikklaE5tArw the ,vans and that they alio atedito(prepazia,thesteitfprAtieostgiff4Akerof4ecQqf thEopills. In view of theiclear :ndirniAsioMil I a:Si d5ttagdlsOlpfYe$;,PAMI/c31)Xi4441baz Hussain, admittedirthesworkinizipaittilcgltigiikfllitAPegaWiPt114(there is no room for doubt in my minditlxat4h014511Awkiders,at least used Ia.-open and close flit3 gate'of the millaawlAvhlimitittivtgatb040,414 tc.), ,search the person or, AU workers going.
Otttiofitliierimilltioyheneyafthey mpected them. These dutics. An their part obvioulpialvolY9disiSfriliiMitrliipp,,,of hands and they were definitely performing matutallworlcmithin Otevomeaning of the definition of: !Workixten' underrthtt.,Standingi Orders Qichlwrice. In that respect, Mk 'SylaJzhar Ahmedh4s also retlif4)qqe$14e oars a 41.4 Aghemo .4 v. Secymix, Roaps,Lta.
And. atti9 t er 1.09i Oil ,w 4 NW .Oat a mere ;,:f4c.t, that avirseanitsAmpletpulibytt440.00ignattippicpk4hpkidar or security guardAViiktibttext)udech*iffm Ittith404i*Bfgf flrfoirAtRp', given in section 2(i):ofrthe actlinance,,A, The Congt,wjiklaavertp-deteretnipp,the nature of his duties. If a)CitOwlactar:or,security,gug4plerform any of the duties of the nature, referred to in the definition, he will be coveted by the definition. It ' A4 would, therefore, apdeA4410 pcar vt the two Chowkidars were 'workmen: within the mean ing.At 3rtt
6. The.flitUng&Sind IskbourigourAMP.Irribto Karachi, in its orders, dated 21st Fleb$R4bYtnIAPolqtk5tkiSLi4i.lfraFRPS14(19d14160 thei11419wing .77 !,5iari ban f4hio.-m 1-, "1"t cott-`4klialPfif the'` E1 dents that: less than 20 gifnrt of ere Ytti illiffolarchy19150and therefore, the pro- filtiritdit(ndustrial aid Clommergiat- Employment Mers)?451rdliiiince, 1968, werenntitJattrabted in the instant 1-fai,16-03stlatoidiupon,-,wageii registot, letter- of respondents, adkOtto& tbnpaillooy EDirector (Labour) Bata Anibn RI! Etlitifittlatif oPlkigistarit Director Labour-J*0db bsti is sfleOto Wilfract4t Kittachi4 dated 8th Noiember; \3I15 to 01.IP b3briOrtO'D v Fi Of-T:44[mq,- oto:elp 1}n (1) Idiell1982 Kap 91yls',41 {{BLUR PAGE}} 0 'att)61,,, N-1',1/0 1976. All these documents are, however, 'belied bit' Muhainnlad Moosa (D.W. 1) who admitted in cross-e;amination the following kl k, ?
"There were two shifts in December, j9 S: Seven weavers used to work in one shift. There was one i.eriprOPlitettf 4'ti9'liitle Sather in 1975. There were only trivo',Chowkidarriv1W,Dec(404f,ii 197.; ,IThere was only one person working in the office. There was only one Oilman. One Jobber/Wdavilikg Master, worked in both the b FR7Iniii4gite,itll l TywhezIrac7,83 jrni,91ermiphlo4,,yieldistint141::!:cenaber, ( .=>.6 1-)141L9 b.:0111 iticiftvfm6 p,p_OuAri r.
(7) From the above admission it is prsiypkthflti.VMSOV'F..<'-'4fir 20 persons working in the respondent Milli Decernber', 10 l''"1") i"According toqheqtV)ptieantd theirs,errices were Nekt;34t1ly terminated in ,'` Jtme, 1976, and therefore, the prerVisioukof the West Pakistan In-L.'. Nldustrial and CoinmerciaLEmploymentiStancling Orders) Ordinance, ' 1968, were applicableito thet redilibridetts,"'
7. The finding of the learned"Labour Court as above was upheld throughout even by the Hon'ble gh Court; 'vide its Remand Order, dated -3rd February, 1983. In view,of n findingilabove-mentioned to the.:,effect that the two Chowkidars are siidile en Withilinthe meaning of the defirtitidn the appellants factory wot?Itt in section 2(i) of the Stand' ita -prireic*Itlle,wthikinen ,.Enviatmiethip d *1 Cifittliari'26 and.Thcf:Alsult:wairld be that the Standing crA' ett riarick igni,bli4ilti be applitiablel4ch ,the case of the respondents : nifttitir ;ap ifft iii, nder sedtkild t S-A.901.R(0.
1969, were twit), maint4111a- tifl-j'''''',) j'.1,J1.'1,-(1',' ' ' ''-(,)-) fart' i''''''''11 +. Vo o.)/^ i',A,4A . ... -,.., -,811...; ,e.p.w I: ..4,113.. .,11,.3.
8. " lifiPe911 q).G.!k:1 t e ID" 984 PLC 4(631.):g1101 "'FA I J.: 495 ; Zahoor Ahrned v. Trustees of Port of Karachi and 2 others 1981 {{BLUR PAGE}} o=ft ;i1 htn. ,.,;!` .4-;',"1, Inatqqb cdi 1WW.20:J jiLabglir Appellate fri"Y14ft ifb2'"i2ivGN sie Mr.-i,Kourejoii APpetlate Triibunal art inmifxrif, bluavi ,?:;Ycfr ,:r.)rifatuf.t0 Isi(ipom,', I noil.)f)a of 1cklvo'fq :id ion I.Eobt*d Jon i'.3V/ pinta l.i3Jqq.i; IliinwriPiar.:b .50 bolit .;:.)1.)k1 .0 Jbi,11.:;i`i al f.)1d.a41r.b AE poRT +kctivrii g1101 ?Us; t),13 1 A al' Ppeal NO. KAR-58410cif 1982, decided on 20kNovember, 1983.
West Pakistan Industrial and Commercial Employment (Standing 'Orders) Ordinance (Ylictiii90)77r-...- el --S. 1 (4), ptiMfs6qluftktdciihIh'lletctictti.. Port Trustiiketi(tNilad$SM, S. 22 (8) and kiifiChi:Port1TrttritlfifiCersand Servants (EfRoiettcy and ),) Discipline) RillelaKidititliPtPcittniist being carried on by and under authority of Feiliftil Eiiivtitilitilttiti with statutory ;rules of .c13nduct and diStli- Plirte for itint-fal&yrit-44.1133itluded froarrambit4;West Pakistan and- CtimiiitsttitiluErdploymeatn(Standing Orders) Orciinanee-=-Emplelttit Fhttaoki) Pon driustiliot.Ahntitledtto grievance petition aghltilt `;'i.(61nivainittittijqseivicdt notnitta,zonneetion with andA industrial' cliSPIxfievince-OtiiibtrandusOilir Relations Ordi- nance of4110),S. 25-A. Epic, )A Jhonson and Jhonson (Pakistan) Ltd. v. Zubalir' 'Ahmed and another, 1980 PLC 622 Imam Buy Oazi 17 Trustees of Portaf Karachi 1980 P LIC The result is that the appeal ISIAft0,,c, : ', :)1 1 , e , t 1 A.
PLC 713 and Trustees of Port of Karachi v. Abdul Ghani 1983 SCM R 769 rel. S. Hamid All for Appellant.
Abbas Ahmed for Respondent.
Date of hearing : 15th November, 1983. {{BLUR PAGE}}
' This appeal is directed against the order dated 9th October, 1982, dismissing the application of the appellant filed under section 25-A, I. R.
0., 1969, for re-instatement in service.
2. The facts leading up to the appeal briefly stated are that the appellant was a workman, employed as a Senior U. D. C. In Karachi Port Trust, the respondent therein. He was served with a charge-sheet for misconduct. In a domestic enquiry, he was found guilty for misconduct and was compulsorily retired from service, vide orders, dated 30th August, 1979, by the respondent: He filed a departmental appeal which was not heeded to for a long time and in the situation he served a grievance notice on the respondent on 15th February, 1982 and his grievance having not been redressed he filed an application in the learned Labour Court No, V at Karachi for his re- instatement. The learned Labour Court dismissed his application on preliminary objections holding that the application was not maintainable by virtue of the proviso 1 to section, 1, clause (4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that it was also time-barred. Aggrieved by the impugned order, the appellant has come up in this appeal.
3. I have heard learned counsel for the parties, Mr. S. Hamid Ali for the appellant and Mr. Abbas Ahmad for respondent and have also perused the relevant evidence available on the record. The learned counsel for the appellant has raised two-fold contentions, firstly, that the provisions of proviso Ito section 1 clause (4) of Standing Orders Ordinance, 1968, would not be applicable to the instant case ; and secondly, since the appellant had filed the departmental appeal which was not heeded to by the relevant authorities for a long time, which remedy was available to him side by side, he preferred to file an application under section 25-A, I. R.
0., before the learned Labour Court and the application was both legally maintainable as well as within time.
4. It is very clear that the respondent establishment is being carried on by and under the authority of the Federal Government under the provisions of the Karachi Port Trust Act, 1886. Clause 8 of section 22 of the said Act empowers the Board of the Karachi Port Trust with the prior sanction of the Central Government to make regulations for regulating the conduct and terms and conditions of service of officers and servants of the Board and all other service matters including recruitment, promotion, enquiries, punishment and appeals. The learned counsel for the respondent, Mr. Abbas Ahmad has contended that in pursuance of this power, regulations and rules were framed by the Karachi Port Trust in respect of the service, conduct and discipline of the employees of the Karachi Port Trust. In fact he has referred me to such statutory rules framed by the Karachi Port Trust as Karachi Port Trust Officers and Servants (Efficiency and Discipline) Rules, as approved, vide Board's Resolution No, 533, dated 15th March, 1969, and sanctioned by the Government of Pakistan, Ministry of Defence, (Directorate General of Ports and Shipping), Karachi, vide No, 3-46/9-P. III, dated 25th June, 1969. In view of this position, the Standing Orders Ordinance shall not be applicable to the respondent establishment by virtue of proviso I to section 1 clause (4) of Standing Orders Ordinance, 1968. Since the Standing Orders are not applicable to the respondent establishment, the appellant cannot invoke the provisions of clause (3) of Standing Order 12 and bring his grievance in respect of his removal from service under that clause before the learned Labour Court.
Furthermore, he also cannot file a grievance application under section 25-A, I. R. O. 1969, inasmuch as such an application can only be made by a `worker' defined in Industrial Relations Ordinance, 1969, but the appellant by reason of his removal from service, which is unconnected with an industrial dispute has ceased to fall within the said definition as was held by this Tribunal in the case of Jhonson and Jhonson (Pakistan) Ltd. v. Zubair Ahmed and another (1). Reliance in that respect has been placed by the learned counsel appearing on behalf of the respondent on the cases of Imam Bux Qazi v. Trustees of Port of Karachi (2) and Zahoor Ahmed v. Trustees of Port of Karachi and 2 others (3) which decisions are on all-fours in the circumstances of the instant case in appeal. Both the learned counsel appearing on behalf of the parties have relied on the recent authority of Supreme Court in the case of Trustees of Port of Karachi v. Abdul Ghani (4). I have carefully persued this Authority and find that very clearly it confirms the view held by this Tribunal in the above-mentioned two decisions relied on by the learned counsel for the respondent and in my view, the controversy in that respect seems to have been set at rest. I would, therefore, find that the appellant could not legally move the learned Labour Court in a grievance application against the respondent establishment and the application was not maintainable. In view of this settled position, the adjudication on the other issue with regard to the question of limitation would not be necessary.
5. In the result the appeal is dismissed.
(1) 1980 PLC 622 (2) 1980 PLC 495
(3) 1981 PLC 713 (4) 1983 SCM R 769