' This appeal emanates from the decision, dated 14th July, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, directing the re-instatement of the respondent in service without back benefits.
2. The allegation against the respondent was that he on 11th July, 1988 remained absent from factory gate No, 2 from 8-40 a. m. To 3-50 a. m. The learned lower Court has held that the respondent is a workman and that remaining absent for ten minutes did not amount to misconduct. Learned counsel for the appellant has on the point of workman cited number of rulings such as 1983 PLC 273, 1983 PLC 216, 1982 PLC 1980 PLC 622, PLD 1969 Lah. 717, 1968 PLC 338, 1982 PLC 1981 PLC 18 and 1981 PLC 198. Definition of workman given in the Industrial Relations Ordinance, 1969 is different from the one given in Standing Orders Ordinance, 1968. We are concerned with the definition given in section 2 (i) of Standing Orders Ordinance, 1968. According to which, a person who does manual work is a workman. Watchman acting as watch and ward at night are quite different from gatemen giving duty at the factory gates. The former are not workmen as they have not to do any manual work, whereas the attar is workman since they do manual work by closing and opening gates. The duty of the respondent was at factory gate No, 2 as is evident from the very charge-sheet Exh. P.
1. His- duty, therefore, was not merely to remain present but he had to open the gate when there was necessity and close it. Closing and opening gate is nevertheless manual work. We cannot blindly follow rulings unless they are found to be germane to the facts of the case in hand.
According to the nature of the duties, the respondent is covered by the definition of workman as given in section 2 (1) of Standing Orders Ordinance, 1968. Chawkidars involved in 1983 PLC 216, 1983 PLC 273 and 1983 PLC 227 were not performing manual duties, so were held to be not workmen.
Same is the case with 1978 PLC 338. PLD 1969 Lah.. 717 is distinguishable as it was a case of a salesman of Brooke Bond Company whose duties were different from the duties of a gateman.
3. So far as the definition given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 is concerned, the same is much wider than the one given in section 2 (i) of Standing Orders Ordinance, 1968. It is not necessary that such a person must be doing manual work. If he is not covered by the definition of employer and does not come within the exceptions (a) and (b), he will be a workman. So even under section 2 (xxviii),
1. R.
0. The respondent is covered. He was thus rightly adjudged by the learned lower Court to be a workman.
4. However, I cannot agree that the respondent did not commit any misconduct. The duty of a gateman is to remain present throughout his duty hours and open and close the gate when necessary. No doubt slipping away from the place of duty temporarily amounts to temporary absence but it amounts to neglect of duty also which is, according to Standing Order 15 (3) (i), misconduct. Neglect of duty even for a short time is misconduct. Doing duty negligently is quite different from totally neglecting duty even for some time. A person who does duty negligently performs his duty but not properly and efficiently, whereas a person who totally neglects duty, fails to perform his duty. The word 'or' occurring between the phrases 'habitual negligence' and 'neglect of work' is disjunctive, therefore, the word 'habitual' will not be read with the words 'neglect of work'.
So, the respondent committed misconduct 'slipping away from the place of his duty neglecting his work.
5. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the order of dismissal is restored and grievance petition of the respondent is dismissed.