' AJMAL MIAN, J.-- This petition is directed against the order, dated 30-1-1983 passed by respondent No,1 (i,e, Sind Labour Appellate Tribunal, at Karachi), dismissing the petitioner's appeal with the modification of the back benefits namely, granting 75% back benefits in place of 100% awarded by the learned Labour Court.
2. The brief facts leading to the filing of the above petition are that at the relevant time the respondent No,2 was working as a Shift Jamadar drawing monthly wages of Rs,350 in the petitioner's factory at Dhabeji. On 21-1-1979 the respondent No,2 was served with a charge-sheet dated 18-1-1979 under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders Ordinance). In the charge- sheet it was alleged against him that on his encouragement 2 bags of card fly were stolen by Chowkidar and a Chowkidar air-condition operator and, therefore, it was a misconduct on his part in terms of the provisions of the Standing Orders Ordinance. In response to the above charge- sheet, the respondent No,2 submitted his reply, which was found unsatisfactory by the petitioner and consequently a domestic enquiry was ordered. The respondent No,2 was eventually dismissed by an order, dated 29-1-1979. The respondent No,2 being aggrieved by the above order filed an application under S.25-A of the I.R.O. In the Court of Vth Sind Labour Court on 6-5-1979 after serving requisite grievance notice on the petitioner. The above application was resisted by the petitioner and inter alia, it was pleaded that the petitioner was not a workman within the ambit of section 2(i) of the Standing Orders Ordinance. However, it seems that at the stage of arguments respondent No,2 in their written arguments did not press the above plea. The learned Sind Labour Court by its order, dated 8-12-1979 allowed respondent No,2's application and directed his re-instatement with continuity of service and back benefits from the date of dismissal.
' The petitioner being aggrieved by the above order filed an appeal before the learned Sind Labour Appellate Tribural, which was allowed by an order dated 20-2-1980 on. The ground that respondent No,2 was not workman within the ambit of the Standing Orders Ordinance being a Shift Jamadar.
' Respondent No,2 being aggrieved by the aforesaid appellate order filed Constitutional Petition No,204 of 1981 in this Court, which was allowed by a Division Bench by a judgment dated 11-3-1982 and the case was remanded to the learned Sind Labour Appellate Tribunal with the direction to decide the following two questions: "(1) Whether the petitioner performs any duty which is covered by the definition of the workman given in the Ordinance irrespective 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.
(2) Whether the termination order is sustainable on merits on the basis of record including the inquiry proceeding."
3. After the above remand order the learned Sind Labour Appellate Tribunal recorded the evidence of the parties, namely, from the side of the petitioner one Muhammad Ali Asghar, Labour Welfare Officer and whereas from the side of respondent No,2 he examined himself and one Muhammad Siddiq. After hearing learned counsel for the parties the learned Sind Labour Appellate Tribunal by its above order, dated 30-1-1983 dismissed the petitioner's above appeal in the above terms. The petitioner being aggrieved by the above order has filed the present petition.
4.(a) In support of the above petition, Mr. Mohsin Tayebaly, learned counsel for the petitioner has vehemently urged as follows:
(i) That the learned Sind Labour Appellate Tribunal having concluded that respondent No,2 belongs to managerial grade and was assigned the duties mentioned inter alia in the promotion letter, dated 1-4-1977, could not have held that there was tangible evidence that the respondent No,2 was required to do certain work of manual nature.
(ii) That since respondent No,2 had not proved the factum that he remained unemployed, back benefits could not have been granted.
(b) On the other hand Mr. Ali Amjad learned counsel for respondent No,2 has contended as under:
(i) That the factum that respondent No,2 was performing some manual work was established from the petitioner's own document produced in the cross-examination of respondent No,2's witness Muhammad Siddiq and therefore, the finding of the learned Sind Labour Appellate Tribunal is based on some evidence.
(ii) That the burden of proof was on the petitioner that respondent No,2 during the relevant period had taken a job and was earning and therefore was not entitled to back benefits.
5. In order to appreciate the respective contentions of the learned counsel for the parties on the above contention No,1, it fray be advantageous to reproduce hereinbelow the duties assigned to respondent No,2 as a Shifted Jamadar under the above promotion letter, dated 1-4-1977, which reads as follows:- "Mr. Abdul Aziz son of Saidullah, SUB: PROMOTION AS SHIFT JAMADAR.
' Reference to your application dated 9th March, 1977 the management is pleased to promote you as Shift Jamadar with effect from 1st 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 managerical grade and will look after the welfare of the management.
' As Shift. Jamadar you will recommend Appointment, Leaves, Promotions, Transfers of the Chowkidar working under you.
' In each shift about Seven to Ten Chowkidars will be under your cortrol and supervision.
' 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."
Whereas respondent No,2 in his affidavit of evidence before the learned Sind Labour Appellate Tribunal had alleged that he was performing the following manual work:
(2) "That I say that as Shift Jamadar my duty was usually on the gate and I, alongwith the Chowkidar used to open and close the main gate for allowing transportation of all types to pass through.
(3) That I say that whenever there did not use to be any loaders/ unloaders available or the number of workers were not sufficient, it was also my job to actually help to unload the bales of cotton and to count the bales so loaded and unloaded and report the counting to the Head Jamadar.
(4) That it was also my job to oper. And close the doors of Godowns in the factory where cotton bales or goods for export were stocked. That the keys of these godowns were used to open the Godowns and reporting the same to the Head Jamadar or Security Officer.
(5) That I say that I did not have powers to grant any leave to any worker by myself or take any disciplinary action or appoint or terminate the services of any workman. That I am advised that every workman has the right to make a complaint to the Management against any co-workman,
(6) That I say that I and other Chowkidars had been given training for fire fighting services and I personally used to do the fire fighting service work whenever need arose for the same.
(7) That I say that a major part of my work was manual, believe that provisions of Standing Orders Ordinance are applicable in my case."
6. The learned Sind Labour Appellate Tribunal after taking into consideration the affidavits of the parties and the documents produced before it in para. 3 of the Order concluded as follows: "The authenticity of the said promotion order and its contents cannot be doubted in view of the fact that the appellant has appended his signatures 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 if 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 loan and leave to them and the taking of disciplinary action against them."
' After having concluded that respondent No,2 belongs to the managerial grade in para. 6 of the order recorded the finding that Office Order No, 41 dated 11-3-1975 furnishes tangible evidence to establish that respondent No,2 was performing certain work of manual nature, as in the above circular the Security Staff was responsible to cover the cotton bales lying in the yard with tarpaulines and in case of shortage of tarpaulines they were required to take off the tarpaulines from the waste section to cover the bales. In this regard it will be pertinent to point out again that above circular No,41 dated 11-3-1975 was produced by the petitioner through respondent No,2's witness Muhammad Siddiq in his cross-examination. It may be pertinent to reproduce hereinbelow the above circular, which reads as follows: "PROCEDURE OF GODOWN WORKING: ' Cotton:-- The Godown Clerk will move the maximum possible bales inside the godown according to the capacity. These bales will be weighed inside the godown.
' The Godown Clerk is responsible for arrival, issues and proper stocking of cotton. As soon as the cotton arrives and the Gate Cleric hands over to the Godown Clerk, the cotton clerk will inform the Excise Incharge the quantity of cotton bales who will issue the receipt to the Truck drivers. A card will be displayed at the main enterance of the godown showing upto-date stock.
Yarn Godowns:- The Godown Clerk is responsible for correct stock and proper stacking, loading of local and export and for counter-checking of yarn bags. One Chowkidar will be present there but the responsibilities will however be of the Godown clerk. The yarn bales and bags in the godowns should be according to the Bin Cards and despatches are made according to Delivery Orders. One bin card will be kept in every godown near the gate showing up-to-date stock of all counts so that one can have look on card and may check the present stock. It should be done under the instructions of the Excise Incharge.
Waste Clerk:- Waste Clerk is responsible for taking out waste from the department once at 9-00 a.m. And secondly at 3-30 p.m. He will be responsible for correct weighment of waste and quality wise storage.
' The above instructions will be followed strictly by all concerned. Any person found contravening these orders will be strictly dealt with. Severe action will be taken against the sorts of negligence in this respect."
' It may be noticed that the above circular deals with the duties assigned to various staff on the arrival of the cotton. In sub-para.(3) under the caption Re: 'Cotton Arrivals', it has been stated that Security Staff is responsible to cover the cotton bales lying in yard with tarpaulines and in case of shortage of tarpaulines, they will take off the tarpaulines from the waste section and will cover the bales.
7. It may be pertinent to point out that neither respondent No,2 nor his witness in affidavit of evidence had averred that respondent No,2 was required to cover the cotton with tarpaulines in case of rainy season. Nor this was even suggested to the petitioner's witness in his cross- examination. Merely- the fact that respondent No,2 being a Shift Jamadar belonging to Security Staff would not prove the factum that he was required to cover the cotton with tarpaulines.
Respondent No,2's duties have been detailed in the above reproduced promotion letter which does not mention the above work.
In our view, the finding of the learned Sind Labour Appellate Tribunal that respondent No,2 though assigned the above-quoted duties referred to in the above promotion letter and though belonged to a managerial grade was performing manual duties referred to in the above circular is based on surmises and conjectures, as admittedly as pointed out hereinabove, it was not the case of respondent No,2 in his affidavit that he was covering cotton with tarpaulines in rainy season.
Furthermore, the above work seems to be of contingent nature depending on the happening of rainy season and also on the factum that certain quantity of cotton should be lying in open yard.
The above duty of covering cotton with tarpauline cannot be treated at par with day to day duties which a workman is required to perform.
We are not unmindful of the fact that the learned Sind Labour Appellate Tribunal was competent to record a finding of fact and even are erroneous finding may not warrant interference by the High Court in constitutional writ jurisdiction, but in order to record even an erroneous finding of fact, it should be based on some evidence consistent with the case as pleaded by a party. In the instant case as pointed out hereinabove respondent No,2 did not in his affidavit of evidence or his witness in his affidavit of evidence did not allege that he was performing the duties of covering cotton with tarpaulines in rainy season, nor this was even suggested to the petitioner's witness. In this view of the matter, the learned Sind Labour Appellate Tribunal could not have recorded the finding that factually respondent No,2 was required or was performing the above duty nor referred to in the promotion letter.
8. Both the learned counsel have referred to the relevant portion of sub-para. (a) of para. 7 of the above judgment, whereby the instant case was remanded to the learned Sind Labour Appellate Tribunal (the above judgment is reported in PLD 1982 Kar. 913 and the relevant sub-para. 7 (a) at page 932), 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 his, 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.O. The managerial staff or the person who supervises that work of others and draws monthly salary of Rs,800 are excluded from the ambit of 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 predominantly performs manual work or predominantly 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 a 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 Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that marual 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 Ordinance."
It may be observed that in order to press into service the above judgment, it is prerequisite that the workman should be performing any manual work while discharging his duties irrespective of the quantum of manual work. In the present case as pointed out hereinabove respondent No,2 had failed to prove that his normal duties spelt out in the above promotion letter involves any manual work and, therefore, he was not covered by the definition of the "workman" given in section u" 2(i) of the Standing Orders Ordinance and hence he was not entitled to maintain his application under section 25-A of the I.R.O.
9. We, therefore, allow the petition and declare the impugned order being without lawful authority and of no legal effect. There will however be no order as to costs.
' Since we have held that respondent No,2 is not covered by the definition of workman given in section 2(i), we have not discussed the question of back benefits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.