' The applicant in his petition under section 25-A of the I.R.O. 1969 has prayed for reinstatement in service with full back benefits.
2. Briefly stated the facts of the case as disclosed by the applicant are as follows.
3. That the applicant was employed with the respondent as Security Jamadar since 1st January, 1969 and was getting Rs, 1,350 per month. He had been doing manual work in the respondent- factory honestly and faithfully. On 4th February, 1980 he met with an accident during the course of his employment and was admitted in the hospital where he remained under treatment till 29th April, 1981. He resumed his duty on 30th April, 1981 and worked upto 31st December, 1981. On 14th December, 1981 the applicant was again sent by the respondent to the same hospital for treatment which continued till 29th April, 1982. On 30th April, 1982 the applicant again resumed duty and continued working till 9th January, 1983. He was re-admitted on 10th January, 1983 in the hospital for operation of his leg. On 23rd March, 1983 he was declared St and was allowed to resume his duty. However, on 31st October, 1983 he was called in the office of the company and was given the termination letter. The applicant then served Grievance Notice followed by the present petition.
4. The respondent in their reply statement took up the following legal objections :-
(1) That being initially appointed as Chowkidar and lastly promoted as a Security Jamadar having Chowkidars under him and drawing about Rs, 1,350 P. M. As salary was not a workman under I.R.O., or under the West Pakistan Industrial and Commercial Employmeat (S. 0.) Ordinance, 1968 and there being no industrial dispute pending, the application is not maintainable.
(2) That none of the rights of the applicant have been infringed.
(3) That the termination of the services of the applicant on medical grounds is a condition of service of the applicant and the. Workers.
5. On facts their case is that the applicant was appointed as Chowkidar, w,e,f, 1st January, 1961 and was lastly promoted as the Security Jamadar having no less than six Chowkidars of the shift under him. The applicant was also drawing about Rs, 1,350 P.M. As his salary. The respondent also alleged that the applicant remained admitted in the hospital due to accident. He was taken on duty from 29th April, 1982 but no work was taken from him till 14th December, 1981. Ultimately he was referred for medical examination under the advice of the National insurance Corporation, Karachi. He was examined by a board consisting of three doctors who after due examination declared 40% permanent in capacity of the applicant and also declared him unfit for duty. According to the respondent the termination letter was issued to the applicant on the basis of the report of the medical board and also in accordance with the two settlements, dated 3rd August, 1974 and 20th December, 1978 read with circular, dated 9th October, 1974 of the respondent regarding retirement.
The respondent also stated that the applicant was paid salary during his leave period when he was marked present without taking work from him. For the period when he was in hospital he was paid full House Rent Allowance and Washing. Allowance He was also offered 50% wages but he refused to accept the same. The respondent also paid Rs, 4,800 as compensation and paid Rs, 22,800 towards the Medical Expenses of the applicant.
6. The following points require determination in this case :-
(i) Whether the applicant is a workman ?
(ii) Whether the impugned order terminating the services of the applicant is illegal ?
7. The parties filed their respective affidavits and were also cross-examined.
8. I have heard learned counsel for the parties at length and have perused the record. My findings on the above issues are that the applicant is not a workman and the impugned order is quite legal and valid.
9. An employee in order to be treated as workman must be covered by definition of "workman" which is defined in section 2 (i) of the Industrial and Commercial Employment (S. 0.) Ordinance, 1968 and section 2 (xxviii) (b) of I.R.O., 1969.
10. The representative of the applicant relied on paras. 2 and 3 of the affidavit in evidence and submitted that evidence in these two paras. Have gone unrebutted. These two paras read as under :
(i) I say that I was doing manual work and my duties included to operate the main gate of the factory and also to check the vehicle incoming and outgoing from the factory by boarding them and also by physically checking the productions and raw materials incoming and outgoing in the said vehicles at the factory gate.
(ii) I say that I was also visiting various Departments of the factory and checking the Security Guards on duty inside the mill and also checking the weighing machine i,e, Kantta.
11. However, in cross-examination the applicant stated as under :- "I was then promoted as Security Jamadar, w. e. f. 1st December, 1968. Chowkidars are working in three shifts. Five Chowkidars are working each shift. Previously about 12 Chowkidars used to work in each shift. The Incharge of the Chowkidars in each shift is the Security Jamadar. I know Yaqoob and Nazeer who are employed as Security Clerk. Their duty is on the gate. The duty of the clerks is to enter in the registers the incoming and outgoing material from the Mills and to check the same. I was getting the total salary of Rs, 1,349.50 paisas. My duty was to take ground of Mills to ensure whether the Chowkidars were performing the duties properly and to see that nom aterial entered or being taken out from the mill without a valid Gate Pass, and other documents."
12. The representative of the applicant also relied on paras. 2 to 5 of affidavit in defence submitted by A.W. Muhammad Aslam. These paras. Read as under (i) I say that the applicant was doing manual work throughout the period of his employment with the respondent and his duties included to open and close the gate of the mills to check the incoming and outgoing vehicles by boarding them and also by counting and physically checking the goods and materials incoming and outgoing vehicles at the gate of the factory :
(ii) I say that the applicant was required to walk in the mills and check the security guards on duty, the weighing machine (Kantta) and also various departments of the factory to ascertain that nothing is being done against the interest of the factory :
(iii) I say that right from February, 1980 till October, 1983 (i. e. The date of accident and the date of removal from service of the applicant) whenever he resumed duties under the directions of the Medical Officer/Doctor of the Hospital where he used to be under treatment he had to work and never sit idle for the entire period of his service ;
(iv) 1 say that the applicant was fit for doing his job in October, 1983 and thereafter, but his removal from service was due to his demand for the wages of the sickness period which annoyed the respondents and they terminated his services.
' In cross-examination A.W. Muhammad Aslam also stated as follows :- "There are two Security Clerks working at the gates. The duty of one of the clerks is to check the vehicles and material coming in and going out of the Mills. The duty of the other clerk is to check the persons coming in and going out of the Mill. Both these clerks used to maintain registers for this work. The duties of the applicant were to open the gates, the checking of vehicle and taking a round of the Mill to ensure the proper working of the Chowkidars. He was not doing any manual work."
13. A plain reading of the above evidence makes it abundantly clear that the applicant was employed in a supervisory capacity as a Security Jamadar. He was incharge of his shift having at least six Chowkidars under him. Security Clerical Jobs and checking was done by the security clerks at the gate, therefore, the job of the applicant was purely of security supervision and he had no other job to do. He was also drawing Rs, 1,350 P.M. As salary. Hence he is not a workman and defined by law and since there was no Industrial Dispute pending at the time the alleged cause of action accrued to the applicant, therefore, the application under section 25-A is not maintainable.
14. The representative of the applicant in his written arguments did not touch the merits of the case but the respondents have relied on the settlements with the C.B.A. Annexures 'C' and D' with the reply statement wherein it is clearly provided as follows :- "It is agreed that all the permanent workers shall continue to be eligible to a gratuity equivalent to month's last drawn basic wage/ salary payable in a month, for every completed year of continuous service or part thereof in excess of six months in case of termination simpliciter, retrenchment, retirement, death, invalidity on medical grounds or permanent disablement, physical or mental but such gratuity shall not be payable in case of dismissal from service on any ground."
15. The evidence produced by the respondent regarding assessment of 40% permanent in capacity and declaring him unfit has 'gone unrebutted, therefore, on merits also I find no substance in the claim of the applicant.
16. The upshot of the above conclusion is that the application under section 25-A, I. R.
0., 1969 is not maintainable and it to dismissed accordingly.