AWARD The applicant was Sepoy employed with the respondents and by this application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968, seeks his re-instatement on the ground that the order of the respondents retiring him from service is unlawful and have been passed account of a bias against him.
2. The case of the applicant is that he was appointed as a Sepoy in the S. I. T. E. School in or about the beginning of 1967, that he earned increments from year to year, that his work was satisfactory but that on account of jealousy tie was victimised by being called upon toy produce documentary evidence as to his age and date of birth. He produced a certificate of the Moalim and Posh Imam of his village in Lasbella which was not accepted by the respondents. Conse--quently, his services were terminated with immediate effect, Applicant's case was that he is concerned and connected with the subject-matter of demands constituting Industrial Dispute No. 19 of 1967, pending in this Court, that he has on that account been discriminated against and that his compulsory retirement has prejudiced his service conditions, asserting finally that he has not yet attained 58 years of age.
3. In the preliminary objections raised to the application, the respondents contended that the applicant is not a workman as defined -under the West Pakistan Industrial Disputes Ordinance, 1968 that, therefore, he cannot appeal to this Court. Secondly that his discharge or dismissal or retirement from service was not connected with any misconduct arising out of or connected with the industrial dispute pending before this Court. Thus they contend that the provisions of section 37 not having been contravened, this application under section 38 of the Ordinance, does not lie. On facts, it is stated that the applicant was appointed as a peon with effect from 13th of December 1966, and was transferred to the Watch and Ward Department as a Watch and Ward Sepoy, that he is a guardsman-- Chowkidar with effect from 8th of June 1967, that on the basis of the resolution passed by the Board of Directors fixing the age of Class III and IV employees at 58 years, the applicant having crossed the age of 58 years was ordered to be retired as he failed to produce documentary evidence and that the documents he produced as to his ale were unreliable.
Reliance has been placed on the resolution of the Board of Directors dated 27th of May 1969, and the 30th of June 1969, Annexure 'A' and 'B' to the preliminary objections filed on behalf of the respondents.
4. I have heard Mr. Abdul Majeed for the applicant and -i Mr. Ghulam Hassan for the respondents. It does not appear to be denied that the applicant being a Watch and Ward Sepoy, his duties were that of a guardsman-Chowkidar and indeed, that having been initially employed as a peon by the respondents in 1966, he was appointed Watch and Ward Sepoy in 1967.
5. The first point for consideration is whether the appli--cant is a workman. Section 38 of the Ordinance, 1968, only applies if an employer has contravened the provisions of section 37 during the pendency of proceedings before a Court between a workman and his employer. It goes on to state that no employer shall, during the pendency of conciliation proceedings before a Court in respect of an industrial dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them- immediately before the commence--ment of conciliation proceedings, except with the permission of the Court and that he cannot discharge; dismiss or otherwise punish any workmen except for misconduct not connected with such dispute.
Necessarily, therefore, one has to turn to the definition of workman in the Ordinance promulgated on the 8th of March 1968, and assented to the Government on the 8th of June 1968. A workman has been defined thus in subsection (u) of section 2 of the Ordinance: `workman' means any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical, clerical work, for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Ordinance, in relation to, the industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or in consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i) who is employed in the Police or the Armed Forces of Pakistan;
(ii) who is employed in the service of a prison, or of a hospital for the treatment of human patients;
(iii) who is a Chowkidar (guardsman) or is employed in service, declared by Government to bewatch and. ward or security service;
(iv) who is employed in a managerial or administrative capacity; or
(v) who is a public servant engaged in the administration of State, not being employed in a factory or in the railways, or in any other establishment, undertaking, Department, profession or service declared by Government to be an industrial establishment or service for the purposes of this Ordinance,"
Emphasis has been laid on- section 2, subsection (u) that a work--man who is a Chowkidar- "guardsman" does nut comes within purview of this definition.
6. Understandably on the side of the applicant no clarification has been given nor details mentioned in his rejoinder dated 23rd of October been e1969vo as to the nature of the duties rejoinder dated an performed by him. It has, therefore, to be assumed what these duties would normally be. In the circumstances of the implied admission that applicant was a Watch and Ward Sepoy, it must be presumed that his duties were Merely that of a Chowkidar or to keep watch over some premises. It is by now settled law repeated time and again in various rulings of this Court and referred to 1965 PLC 440 at 441 that a Chowkidar is not a workman within the meaning of the Ordinance and the contention of Mr. Ghulam Hassan, learned counsel of the respondents is that the definition of a workman as given in the Ordinance promulgated in June 1968, excluding the Chowkidar from that category has been deliberately done in view of the definition of a workman under the West Pakistan Trade Unions Ordinance, 1968, where in subsection (q) of section 2, defining a workman, the Legislature deliberately did not exclude a Chowkidar-guardsman from the definition of a workman in my view,therefore, the applicant is not a workman within the provisions of this Ordinance and could not have, therefore, to apply this Court.
7. The next contention is with regard to sections 37 and 38, being urged that jurisdiction of this Court is limited to consideration of application under section 38 involving violation of section 37 of the Ordinance. It is admitted that the applicant is not an office-bearer of the Union and it is clear that his retirement or termination of service is not connected with the industrial dispute pending in this Court. In terms of the reso--lution of the Board of Directors of the respondents and the consequent retirement of the applicant, the question of mala fides does not arise as no particulars have been given of the same nor indeed,do they apply as the overriding circumstances of section 38 read with section 37 refer to misconduct not connected with the pending dispute. The services of the applicant have not been terminated on account of any misconduct connected or unconnected with any industrial dispute. Fifty-eight years as the age of retirement was fixed by the Board of Directors of the respondents. Applicant was unable to satisfy them that he had not reached the age of superannuation and the documents submitted by him were rightly rejected as unreliable. In terms of 1967 PLC 286, no contravention of section 38 of the Ordinance has been made out. This is simple case of the termination of applicant's services on account of his having attained the age of superannuation. His application, therefore, under section 38 of the Ordinance wail misconceived.
8. The result is that both objections raised by the respondents are upheld and the application is dismissed