' This application under section 25-A of 1969 has been filed for the reinstatement with back benefits.
2. According to the application, applicant is a permanent workman and is said to have worked in various capacities. He is also the General Secretary of Indus Jute Mills Staff Union and has been active member of the trade union. His services are said to have been terminated on 21st March 1984 with mala fide intention and also in violation of the Standing Orders. Accordingly he sent the grievance notice on 12th April 1984 but the same was rejected vide respondent reply dated 22nd April 1984. The matter was unsuccessfully taken up to the Directorate of Labour and then the present petition was filed. The grounds urged in support of application in nutshell are that the termination of the applicant was mala fide and that he was mainly victimized on the ground that he is a Sindhi-speaking person and his union was having confidence of overwhelming majority of the workers.
3. This application has been resisted on behalf of the respondent. In its reply statement it has been urged that this application is not maintainable mainly on the ground that the applicant is not a workman within the meaning of S.O. Ordinance inasmuch as he had been working as supervisor in the respondent organization and his main job was of administrative nature because he was to direct, supervise and control the workers working under him and was not performing any manual or clerical work. Details of the job performed by him during his tenure have been given in the reply statement and need not be recapitulated. The allegations against the management as made in the application itself have also been refuted submitting that the applicant was terminated due to abolition of the posts alongwith many other posts as a measure of economy. It has also been averred that a number of non-Sindhis were terminated and still more than 350 Sindhi workers are working in the Mill. The five trade unions in the Mill have Sindhis as its office bearers and so the allegations to this effect are false.
4. In support of this, applicant examined himself and one Manzoor Hussain, while the respondent examined its Administrative Officer Mohammad Hanif. After the evidence I have heard Mr. Mohammad Rashid Khan, Representative for the applicant, and Mr. Syed Zamirul Hassan, Representative for the respondent. I have also carefully examined the submissions made before me with reference to the material on record.
5. Admittedly the applicant has not been terminated on account o any misconduct and so neither he was charge-sheeted nor any domesti enquiry was conducted. The contention of the management however I two-fold viz. (1) that the applicant being supervisor did not come withi the category of "workman" and so he had no secured or guaranteed righ to invoke the jurisdiction of this Court under section 25-A of I.R.O., 1969 and (2) even if the S.O. Ordinance is made applicable to the applicant his services were terminated strictly in accordance with S.O. 12 (3) and s the applicant cannot show any grievance. I would accordingly dilate upon the important legal propositions seriatum with reference to the evidence on record.
6. Mr. Zamir has taken me through the pleading documents an evidence on record and submits that considering the definition of workma as given in the S.O. Ordinance, the applicant cannot be considered a workman, even if he may be so under the provisions of 1.R.O., 1969 Learned Representative submits that admittedly the applicant was working as Area Supervisor of Labour Colony at the time of his termination. H used to make recommendations and some times used to give direction for the appointments, removals, payments and other incidental matters He used to supervise and manage the entire Labour Colony and nerve performed any clerical or manual work.
Accordingly, the applicant was outside the scope of workman. His further submission is that neith in the application nor in the affidavit in evidence the applicant has stated that he had ever performed manual or clerical job and by his using the word "workman" only in his pleadings, he cannot be deemed as such particularly when the burden to prove his status in view of the challenge extended from the side of the respondent heavily lay on him. He has placed reliance on PLD 1978 Kar. 649, as also PLD 1975 Pesh.
240. In the latter authority, it has been held that before a person could move for redress of his grievance under section 25-A of I.R.O., 1969, he must prove himself a worker as defined in the S.O.
Ordinance, 1968 if his right was secured by Ordinance. Learned Representative finally urged that in view of this factual and legal position, the applicant cannot claim himself to be a workman and so his application is incompetent.
7. Mr. Rashid, learned Representative, on the other hand, has submitted that the respondent has not produced the appointment letter or any other document to indicate what were the duties of the applicant and so he cannot be pleaded as employer. Learned Representative also submits that he never enjoyed supervisory status nor he was invested with powers of hire and fire and so he could not be taken out of the definition of a workman. His further submission, is that by merely designating a person as supervisor would not be sufficient to bring him within the category of employer and in order to determine whether a person is workman or not the nature of duty of the person is to be kept in view. He has placed reliance on 1977 PLC 640 and 1976 PLC 491. He finally submitted that as per the evidence on record, the applicant cannot be considered as non- workman and so his application is maintainable in law.
8. According to the application under section 25-A of I.R.O., 1969, the applicant in para. 1 of the petition, only claimed himself "a permanent workman". In rest of the petition he said nothing about his status or the nature of duty used to be performed by him. This status was seriously assailed in the reply statement but still in the examination-in-chief made through the affidavit in evidence the applicant said nothing how he claimed himself to be a workman. He did not disclose his nature of job or the details of duties being performed by him. In the reported Judgments cited by Mr. Zamirul Hassan, it has been held that it is for the person who invokes the jurisdiction of this Court to prove his status and if he does not lead any evidence, he would have no locus standi to maintain his application. Even as per the evidence, it is evident that the applicant was not a workman within the definition given in the S.O. Ordinance. As pointed out above, the applicant produced no document whatso ever nor even he made any oral statement that by dint of his job he had been a workman.
Assuming but not admitting, the applicant was not required to lead any proof, still the respondent has succeeded in establishing that the applicant had never been a workman. A number of documents ranging from R-1 to R-75 have .Been produced by the respondent and according to these documents it has been attempted to be proved that the applicant enjoyed a supervisory position over his subordinates and he never performed any manual or clerical job. Admittedly the applicant worked as Area Supervisor of Mills Labour Colony till the date of his termination. The submission of Mr. Rashid that the appointment letter was not produced by the respondent and so applicant cannot be said to be a supervisor is misconcieved inasmuch as whatever the duties the applicant had admittedly been performing have been brought on record and the same clearly indicate the nature of the job of the applicant. As to the submission of Mr. Rashid that the applicant had no power of hire and fire, I would confine myself to relying upon 1980 PLC 644, wherein our own Labour Appellate Tribunal has been pleased to observe as follows :- "Mr. Chohan, the learned counsel for the respondent however, submitted that it is not nature of the duties which an employee has to perform which is the decisive factor whether he is a workman or not, but the distinction between employer and the workman lies in the view of the learned Labour Court that unless an employee has powers to hire and fire, he is deemed to be a workman. In support of his contention, the learned counsel, relied upon a decision by a learned single Judge of the Karachi High Court in the case of Dost Mohammad Cotton Mill v. Mohammad Amin. Although there appears to be an observation in the said Judgment to the effect that if a person does not fulfil the qualifications which would entitle him to be considered as an employer, then, he is to be treated as workman but this observation was made in regard to the contention that the person who claimed to be a workman was in fact an employer or at any rate was exercising powers of supervision and administration, with utmost respect to the observation made in that judgment. I would like to state that the definitions of a employer and workman in the Standing Orders do not cover the whole range of the persons working in an industrial or commercial establishment. If that were so person working in a supervisory capacity, watchman, salesman, sales representative, foreman and host of other were employed who do not perform any duties involving manual or clerical work, and have no powers to hire and fire, would have to be treated as workman for the purposes of the Standing Orders. This, however, is clearly not the legal position. With great respect, I am of the firm view that neither the scheme of the Standing Orders nor the definition of workman and employer in the Standing Orders envisage that all categories of persons engaged in any type of work in an industrial or commercial establishment must necessarily fall in the mutually exclusive broad classification of "employer" or "workman" for the purposes of the Standing Orders. In my humble opinion, looking to the definition of workman in the Standing Orders, in order that a person should be a workman for the purposes of the said orders, he must be required to perform manual or clerical work whether skilled or unskilled, for hire or reward, irrespective of his designation or status. In fact, this appears to be the view which has been taken in the Dost Mohammad's case, wherein it has been held that though the employee was designated as Chief Accountant, he was performing clerical duties. Reference may also be made to the Division Bench decision in Mohammad Aqfl's case where it has been held that a person not employed to do any skilled or unskilled. Manual or clerical work is not a workman as defined in the S.O. Ordinance."
' This observation of the Hon'ble Tribunal has shattered the plea of the applicant. The supporting evidence of the applicant as given by one Weaver Mohammad Manzoor Hussain is also of no avail to the applicant for a number of reasons. The most important ground for rejecting his evidence is that he used to work in the Mill itself whereas the applicant was employed at the Labour Colony.
Accordingly this witness had no opportunity to watch the duties of the applicant. The other point is that his evidence is in regard to such things which have never been pleaded by the applicant himself. For example, according to this witness, the applicant used to work by his own hand like repairing the doors, measurement of the area etc. If at all the applicant had been performing such manual job, it was for him to have asserted the same particularly when his status was under a serious attack. The case reported in PLD 1978 649, also supports the contention of the respondent.
In 1983 PLC 365 and 1983 PLC 431 as well the persons, working as supervisors and not doing any clerical and manual job have been held to be outside the scope of workmen. Looking all this factual and legal position I am inclined to hold that the applicant has not been able to prove that he has been a workman and so his grievance petition would certainly be incompetent.
9. Assuming that the applicant comes within the definition of workman, I feel that even otherwise.
This application would have no substance. The applicant has not been terminated on account of any misconduct but his termination is founded on the plea that his post was abolished on account of economy measure. The plea of the applicant however is that in fact he has been victimized mainly on the ground that he belonged to a Sindhi-speaking class and further that he had been an active union worker. As to the second ground, suffice it to say that according to his own witness, the union of the applicant never participated in any referendum from the date of its formation. He has also himself not given any such activities due to which he could have reasonably been termed as an active union worker or there was any justification for his victimization because of his union activities. In fact as per the respondent this union remained as a non-existent throughout and does not have even proper membership. Accordingly there was no occasion for the respondent to give any importance to such union if any. This plea of the applicant is quite misconcieved and has to be ignored.
10, Adverting to the most important ground in this petition I would refer to the pleading of the applicant and according to which he has been victimized because he had been a Sindhi-speaking and had the support of that group. In fact this allegation is a wild and serious one and if it is true, the respondent has to be looked down. However, as per the evidence on record, it is crystal clear that in fact the applicant has cooked up this false and imaginary plea in order to seek sympathy considering the prevailing conditions of this country. He was cross-examined on this important allegation and it would be advantageous to reproduce the whole in order to appreciate the agreed position :- "It is incorrect that officer-bearers and members of Managing Committee of all these unions are Sindhi-speaking persons as well besides others. It is however correct that Rahim Dad General Secretary of Indus Jute Mills Employees Union shown in Annexure A-3 is a Sindhi Baloch. I do not know if Abdul Ghani and Rasool Bux are Joint Secretary and Vice-President of Employees Union but they are Sindhis. It is correct that presently Messrs Ghulam Hussain, S.V.P. Khuda Bux, V.P.
Mohammad Akbar, Mohammad Khan and Shujauddin as member of Managing Committee of Progressive Workers Union are all Sindhis to have been elected only in the recent elections. I do not know if Rahim Bux, Punoo and Wazir All were office-bearers of Mehnatkash Union which was CBA, till July 1984 though they are Sindhi. I know Abdul Jabbar and Karim Bux are Sindhis but I do not know if they are office-bearers of Mazdoor Union. I do not know if more than 350 workers are Sindhis."
11. According to the above replies of the applicant it is quite evident that though he has made all his attempts to suppress the real position by giving evasive replies (he claims to be an active union office-bearer but he showed ignorance about his known persons if they are office-bearers of the unions or not) but it is evident that a number of Sindhi-speaking persons are having commanding positions in all the unions including C.B.A. And lot of other Sindhis are still employed in this organization. Not a single Sindhi-speaking has been alleged to have been removed by the respondent in any manner till date and so it was wholly unfair and unjustified for the applicant to give his termination a colour of parochial nature. In fact by making this wholly unwarranted allegation he has shown that he has not come out with clean hands.
12. The plea of the management is that the post on which the applicant was employed was abolished and this abolition was on account of re-organization or economy measure. The balance-sheet has been produced by the applicant himself and according to it though there is no loss during the last year but still the production is said to have been considerably decreased while the cost increased. The respondent was accordingly justified in abolishing any post. No however could be proved against the respondent in abolishing this post or in terminating the services of the applicant. No other person has also been employed on this post. In 1980 PLC 353, it has been observed that termination simpliciter stating that the services are no longer required would be a valid order under S.
0. 12 (3). Similar principle has been laid down in 1980 PLC 728. Accordingly the present termination order, which is based on no prejudices nor which is on account of any victimization or to accommodate some other person, is quite valid and cannot be questioned in these proceedings.
13. In this view of the matter, I do not find any substance in this petition and so it is dismissed.