1. ' AJMAL MIAN, J.-This petition is directed against the order, dated 29th August, 1982 passed by the learned Sind Labour Appellate Tribunal, Karachi in Appeal No. KAR-60/1982. The brief facts leading to the filing of the above petition are that the petitioner was a permanent and confirmed employee of respondent No. 2, working as a Chowkidar on 16th June, 1977. The petitioner was charge-sheeted for alleged misconduct under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance). After holding the requisite inquiry, respondent No. 2 dismissed the petitioner from service on 3rd October, 1977. The petitioner after serving a grievance notice filed an application under section 25-A of the I.R.O. Before the learned 1st Sind Labour Court. The above application was resisted by respondent No. 2, but the same was allowed by an order, dated 1st September, 1972, ordering reinstatement of the petitioner.
2. The petitioner as well as respondent No. 2 filed Appeals against the above order. The grievance of the petitioner was that he was not awarded back benefits. Respondent No. 2's above appeal was allowed, whereas the petitioner's appeal was dismissed by an order, dated 1st October, 1979 passed by the learned Sind Labour Appellate Tribunal and the case was remanded back to the 5th Labour Court, from where the same was transferred to 1st Sind Labour Court on administrative side.
3. It seems that the First Sind Labour Court also allowed the appellant's above application and ordered reinstatement with back benefits. Respondent No. 2 being aggrieved by the above order filed appeal, which was allowed by the learned Sind Appellate Tribunal by its order, dated 17th August, 1980, on the ground that the petitioner being a Chowkidar was not covered by the definition of worker/workman given under section 2 (i) of the Ordinance. The petitioner being aggrieved by the above order filed C. P. No. 1437/80, which was allowed by this Court by a judgment, dated 20th February, 1982, whereby the case was remanded to the learned Sind Labour Appellate Tribunal with the direction to decide the case afresh. It was also observed that the learned Tribunal would be free to allow the objection of respondent No. 2 on the question that the petitioner being a Chowkidar was not covered by the above provisions of the Ordinance. It was also observed that in case such an objection was to be allowed to be raised, the parties would be allowed to lead evidence as to the nature of duties of the petitioner. After the above remand order, the learned Sind Labour Appellate Tribunal allowed respondent No. 2 to raise the above objection and also allowed the parties to lead the evidence, but again by its order, dated 29th August, 1982 allowed respondent No. 2's above appeal and held that the petitioner was not covered by the definition of worker/workman given in section 2 (1) of the Ordinance. The petitioner being aggrieved by the above order has filed the present petition.
2. In support of the above petition Mr. M. L. Shahani, learned counsel for the petitioner has vehemently urged that according to the finding of the learned Sind Labour Appellate Tribunal the petitioner was performing some manual work while discharging his duties and, therefore, the case on all fours is covered by the judgment of a Division Bench of this Court in the case of Rehmat All v.
4. Security Papers Limited and another , and, therefore, it has been contended that the learned Sind Labour Appellate Tribunal was not justified in presence of the above judgment to hold that the petitioner was not covered by the definition of worker/workman given in section 2 (1) of the Ordinance.
5. ' On the other hand Mr. A. A. Sharif, learned counsel for respondent No, 2 has vehemently contended that since the alleged manual work done by the petitioner while discharging his duties was insignificant as compared to the hours of duties he was not covered by the definition.
3. Adverting to the above contentions of the learned counsel for the parties, it may be pointed out at the very outset that the petitioner was charge-sheeted, enquiry was conducted and the dismissal order was passed under the provisions of the Ordinance i. e. Under (Standing Orders)
6. Ordinance. Respondent No, 2 in their written statement did not raise any objection to the effect that the petitioner was not covered by the definition of worker or workman given in section 2 (i) of the Ordinance nor this was raised by them during the argument nor before the learned Sind Labour Appellate Tribunal in the aforesaid first round of appeals. The above objection seems to have been raised first time when the matter had come up second time before the learned Appellate Tribunal after re-adjudication by the Labour Court. Be that as it may, it may be observed that the learned Sind Labour Appellate Tribunal has recorded as finding of fact that the petitioner's duties included the opening and closing of the main gate of the factory whenever it was required during his duties hours either for taking out goods of any vehicle or bringing in. It has also been proved that he was also required to check the goods at the gate which were to be taken out of the factory to ascertain the requisite authority and the quality. In our view, the petitioner's duties involved the above manual works and, therefore, his case falls within the purview of the above judgment of the Division Bench of this Court. We can do no better than to reproduce para. 7 of the above judgment, which has direct bearing on the controversy in issue, which reads as follows : 7. (a) We are inclined to hold that 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 performs any manual work while discharging the 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.0., the managerial staff of the person who supervises that work of others and draws monthly salary of Rs, 800 are excluded from the ambit of1 the definition of worker and workman 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 predominently performs manual work or predominently performs managerial work. Similarly if a person falls in the class of Executives like a 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 (i) 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 involved 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 liberallly in favour of 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 19th January, 1970 in Civil Appeal No, K-6 of 1968 in the case of the Organization of K. P. T. Workers v. K. P. T. While construing the definition of workman given in section 2 (n) of the Industrial Dispute Ordinance, 1959, which has been reproduced hereinabove in para. (a) (iii), 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 19th January, 1970. It is true that in the case of Shahzar Khan v. Sind Court, their Lordships of the Supreme Coin( were dealing with the definition of the worker and workman given in section 2 (xxviii) of the I.R.O. And held that a Chowkidar who was not only a Chowkidar, but was also the incharge of 3 other Chowkidars 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 19th July, 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 designation of Chowkidar or Security Guard will not exclude him from the definition of workman given in section 2 (1) of the Ordinance. ' The Court will have to determine the nature of duties. If a Chowkidar or a Security Guard performs any of the duties of the nature referred to in the definition, he will be covered by the definition. It may be pointed out that in Constitutional 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 I.R.O.
7. 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.
8. ' Whereas in Constitutional Petition No, D-204 of 1981 a plea was raised in 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 Chowkidar in addition to his being a Chowkidar."
9. ' The above judgment is binding on us. Even otherwise we see no reason to deviate from the above judgment. We, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect, and the case is remanded to the learned Sind Labour Appellate Tribunal with the direction to decide the appeal on merits.
10. ' There will be no order as to costs PLD 1982 Kar. 913