DECISION ' This is an appeal filed by the appellant against the impugned order dated 21-5-1986, passed by the Sind Labour Court No, V, Karachi who had dismissed the grievance petition of the appellant under section 25-A, I.R.O., 1969.
2. Briefly stated the facts of the case are that the appellant claimed to have been a permanent workman performing manual duties of operating Ramp Machinery, loading, unloading the goods, guiding and helping Aircrafts at the time of landing and takeoff, opening of the panel, attaching tow-Bar, getting the Airplane started through Head-set, closing the doors of the Aircrafts, removing faults developed during the operation of machines, lifting of language, carry Trollis and fixing the chocks due to tight schedule and besides the above duties, the appellant claimed to have also assisted and helped to a number of other workmen, technicians and mechanics etc. Further claim of the appellant was that for some time he also used to drive vehicles etc. And also to work overtime for which he was also being paid equivalent to the payments which were being paid to other workers of the respondent establishment and so, he had an unblemished service record. The claim of the appellant was also that he, being a workman, had joined the workers union and was taking active part in union's activities for the general cause of the workers and which had annoyed the superior officers of the establishment resulting in that he was removed from the service on false allegations in violation of Standing Order 12(3) & (5) contrary to principles of natural justice without affording an opportunity of defence and or personal hearing, vide termination letter, dated 12-6-1985. Lastly it was also claimed by the appellant that he used to act as a Captain of the team only for the sake of efficient and up to date functioning of the establishment and in this capacity, he had no powers of hire and fire as he never appointed or dismissed any person working with him except to the facts that being qualified, experienced and expert he was senior to all his colleagues, therefore, he used to recommend some time for their leave etc. But in no case he was holding managerial or supervisory powers over them. Being aggrieved, he submitted an appeal on 19-6- 1985 and thereafter a grievance notice followed by his grievance petition under section 25A, I.R.O.
1969, before the learned Labour Court.
3. The respondent establishment resisted the petition mainly on the grounds that as the appellant was not a workman, getting an emoluments of Rs, 3,000 per month having a position of Ramp Supervisor as well as Incharge of a Group of Workers who used to receive functional advice, guidance, instructions and directives from him therefore his duties were of administrative, managerial and supervisory, in nature, besides technically Ramp handling responsibilities. That the appellant used to ensure that his subordinates remain at work assigned to them and did not leave their places of duties, to exercise full control over attendance, to receive leave applications from his subordinate workers and to make recommendations to administer discipline and to ensure compliance of rules among the subordinate workers and number of other managerial functions and that the appellant had never performed the duties manual, in nature, therefore, under the provisions of Standing Order 12(3) and (5) he was not a workman to maintain his grievance petition under section 25-A, I.R.O., 1969 which was liable to be dismissed.
4. The appellant in support of his case has filed his own affidavit-in evidence as well as the affidavits-in-evidence of his other 4 witnesses and they were duly cross-examined by the respondent establishment. The respondent establishment had filed an affidavit-in-evidence of his sole witness, namely Nazir A. Khan and he was also cross-examined by the appellant. Thereafter, the learned Labor Court has passed the impugned order, hence, the present appeal.
5. I have heard Mr. Mirza Muhammad Kazim, the learned Advocate for the appellant and Mr. Samiullah Khan, the learned counsel on behalf of the respondent establishment and have also carefully perused the record and proceedings of the case as well as the written arguments, submitted by both the parties. Mr. Mirza Muhammad Kazim, the learned Advocate for the appellant in his lengthy and convincing arguments has contended that the learned Labour Court while passing the documents brought on record and that it had also erred in not setting aside the impugned order of termination of services of the appellant in violation of Standing Order 12(3) and
(5) of the Standing Orders Ordinance, 1968. Mr. Mirza Kazim, the learned Advocate has pleaded that from the unrebutted evidence brought on record and the documents placed on it before the learned Labour Court, it was established, beyond all doubt, that the appellant was a workman within the ambit of Labour Laws and that the respondent management through his solitary evidence had miserably failed to prove that the appellant was not a workman, when the burden was shifted upon it.
He stressed that it is a well-settled law that salary and designation are not material to determine whether a person was a worker or not, hut, it has to be seen whether he performed manual, skilled or unskilled work. In support of his contention, Mr. Mirza Kazim has referred me to a case reported in 1985 PLC 760 relevant paras. 13 and 14 on pages 769 and 770. It was further submitted by him that the appellant in his main affidavit-in-evidence had given details of his skilled manual work which he was performing and on this, he was neither cross-examined nor any suggestion was put to him that he was not doing that he had stated in his affidavit, therefore, his evidence had gone unchallenged. Mr. Kazim Mirza, the learned Advocate for the appellant has pointed out to the admission of the sole witness of the respondent establishment that the appellant used to guide other technicians to operate the equipment by physical operation and that it was correct that Ramp Coordinator fixes the pin in the Towing-Bar and wears uniform at the time of work at the Aircraft, that the Ramp Coordinator works in shift duties and he used to do overtime and to get uniform rest of overtime and that the uniform was meant to save the usual dress during physical technical work. Mr. Mirza Kazim, the learned Advocate has also referred me to the unchallenged and corroborative evidence of all the four witnesses of the appellant. There is also an admitted document on record, the last line of which document, Annexure 'E' says that in addition to his duties as Ramp Coordinator he used to be evenly interested in the Ramp Equipment maintenance work and devoted his overtime in it. In support of this contention, Mr. Mirza Kazim, the learned Advocate has referred me to a case of this Tribunal reported in 1986 PLC 169; 1986 PLC 1034 and 1987 PLC 178 wherein it was the consistent view that 'Merely a designation does not oust a person from claiming himself as a `workman' unless it is proved contrary to it. Besides these authorities, Mr. Mirza Kazim, the learned Advocate has also placed reliance in support of his contention that the appellant was a workman, on a number of other Authorities.
6. On the other hand Mr. Samiullah Khan, the learned Counsel on behalf of the respondent establishment has contended that in view of the Duty Chart of the appellant and the documents brought on record, it was proved that he was not a workman, for the purposes of Labour Laws, as in view of the fact that the appellant in his cross-examination had himself admitted these duties being performed by him and also to the effect that the appellant had himself admitted that he worked as the captain of the team who plays and guides others how to play and responsible for the team work of others. I see no force in these contention of Mr. Samiullah Khan, the learned counsel for the respondent establishment. There is neither an admission on behalf of the appellant nor there is evidence to prove that he was performing the duties of managerial and supervisory nature. Merely mentioning that he was working as a captain of the team did not mean that he is not a worker. The meaning of the word captain of the team can be very easily interpreted that he used to work in a team spirit and being most experienced and expert in his job, he used to lead the team of the workers. Mr. Samiullah Khan, the learned Advocate for the respondent establishment was to prove that the appellant was not a workman. However, in support of his contentions that the appellant was not a workman, Mr. Samiullah Khan the learned Advocate for the respondent establishment has placed reliance to a Full Bench Judgment of the Supreme Court, reported in PLD 1986 SC 103 in which it was held that the question to be examined is whether manual or clerical work is incidental to the main work for determining the question. Here, the facts and circumstances of the present case are altogether different. There is ample evidence on record to prove that the duties and functions of the appellant were not incidental to the main work of managerial and supervisory nature. On the other hand, it is some time that the appellant used to recommended the leave applications the other workers to his superiors and it did not mean that he is ousted from the definition of a workman. With respects, I would hold this judgment of the Hon'ble Supreme Court, as distinguishable and not applicable to the facts and circumstances of the present case.
7. It is an admitted position by the parties, that the services of the appellant were terminated without issuing any charge-sheet or even conducting any enquiry or affording any opportunity to the appellant to defend himself. It is also not a case of termination simplicity and in that case also, reasons had to be assigned. There is nothing as such on record. In view of these facts, I would hold the termination of services of the appellant as illegal and contrary to the principles of natural justice, hence mala fide, hence, I would set aside the same.
8. For the reasons discussed by me above I would set aside the impugned order and would allow the present appeal. The appellant is directed to be reinstated in service with full back benefits, forthwith. 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.