DECISION This is an appeal against the order of learned Sindh Labour Court No, V at Karachi, dated 30-8- 1988, whereby the learned Presiding Officer allowed the grievance petition of the respondent No, 1 and directed his reinstatement with full back benefits within 15 days.
2. The facts of the case appear to be, that the respondent No, 1 was employed in the appellants establishment as Customers Services Agent and was posted at Karachi Airport. On 29th/30th October, 1984, he was Shift Incharge of Cargo Services at Karachi Airport in his supervisory capacity from 1.00 a.m. to 10.00 a.m. During his duty hours, when aircraft loading of Sandia (appellants)
Flight SV 353 was ins progress, one commissioner 0975 was reported to have been found excess and unaccounted on the aircraft. The said container although was not tagged and shown as empty was found to contain cargo. The said container was offloaded which was subsequently seized by the Customs Authorities who recovered 12 wooden crates containing 500 kg. narcotics.
On 25-11-1984, the respondent No, 1 was charge-sheeted on 3 counts, namely, (1) neglect of work while disharging his duties; (2) acting dishonestly in connection with Saudi business; and (3) committing breach of instructions and rules of Saudia relating to performance of his duties. In the domestic enquiry, the respondent was found guilty and after 2 show cause notices, the respondent was dismissed from service, vide letter, dated 12-2-1985. Dissatisfied with this order, the respondent served grievance notice upon the appellants on 12-3-1985 and filed grievance petition before the learned Labour Court on 21-3-1985. The appellants resisted the grievance petition on the grounds that the respondent No, 1 was not a workman and that proper enquiry was held in which full opportunity was given to the respondent.
3. I have heard Mr. Talmiz S. Burney, the learned Advocate for the appellants and Mr. M.L. Shahani, the learned counsel for the respondent No, 1 and also gone through the record and proceedings of the case. The main points that require consideration are (1) whether the respondent No, 1 was a workman; (2) whether he committed the alleged acts of misconduct and (3) whether the enquiry was not impartial in accordance with the rules?
4. In his grievance application, the respondent No, 1 had enumerated his duties in paragraph No, 1 as under:-- "to see that containers of the cargo are duly prepared i,e, stuffed with the goods for which proper Airway bill is prepared and also that container contained the goods which are properly documented/tagged and then to see that the container is loaded in the flight for which it is prepared. He does not have any supervisory powers nor he supervises the work of any employee of the respondents, most of the duties performed by the applicant are clerical in nature."
5. The appellants had examined Mr. Iftikharul Haq and Mr. Mustafa Kamal Mirza. Mr. Iftikharul Haq was working with the appellants as Supervisor, Cargo Services while Mr. Mustafa Kamal Mirza was working as Customer Services Agent. Both of them had stated that the duties of the respondent No, 1 were of supervisory nature and that his duties were to see that the containers of the cargo are duly prepared according to the Airway bill and also loaded in the flight for which it was prepared.
They had denied that his duties were of clerical nature. Mr. Mustafa Kamal Mirza who is holding the same post as the respondent No, 1 was holding had stated that the respondent No, 1 was not required to prepare the container himself nor load the same in the aircraft, but, his duties were to supervise the work of preparing the container and loading the same in the Aircraft.
6. In his reply to show cause notice, which was produced as Annexure 'B' to the grievance application of the respondent No,
1. The respondent No, 1 had stated, "that during duty hours, containers were built up under his instructions and supervision." In his cross-examination, he has admitted that on the day of alleged incident, he had acted as Shift Incharge though he was not appointed as Shift Incharge. He further admitted that he had not himself loaded the consignment in the aeroplane, but, he had instructed the staff to build up the containers and after the same were built up, he was satisfied with the work which was done under his supervision and which related to the building of the containers. In the cross-examination, Mr. Iftikharul Haq, witness for the appellants had denied that the respondent used to note down all the items which were being put in the containers during his duty hours and that the list of the articles put in the containers was being delivered by the respondent to the Pilot of the Plane or that he used to deliver the list to the Airport Manager. He has further shown ignorance whether the respondent was handed over Job Description in writing. He, however, admitted in his cross-examination, that the Cargo Sheets used to be prepared by the Shift Incharge on duty and the respondent as Shift Incharge used to write down the articles put in the containers.
7. It may be pointed that the substantive post of the respondent No, 1 was Customers Services Agent, but, at the relevant time, he was temporarily performing the duties of Shift Incharge. The admissions of Mr. Iftikharul Haq in the cross-examination are with regard to the duties of the Shift Incharge and not with regard to the duties of Customers Services Agent, which according to this witness were of supervisory nature and no question had been put to him with regard to the duties of Customers Services Agent. Similarly, no question had been put with regard to the duties to Mr. Mustafa Kamal Mirza who himself was Customers Services Agent. The admissions of respondent No, 1 in his cross-examination show that he did not even perform the duties that he had to perform as Shift Incharge on that day but entire work was done under his supervision.
8. The mere fact that a person is not an employer, would not necessarily make him a workman'.
'Workman' is defined in Section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter called the Ordinance, as under:-- "Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
To establish himself as a workman, the respondent No, 1 had to prove that he was doing manual or clerical work.
9. The workman under the Industrial Relations Ordinance, 1969, is defined under Section 2(xxviii) as under:-- "Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person.
(a) who is employed mainly in managerial or administrative capacity, or
(h) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
10. The duties as enumerated by the respondent in para. No, 1 of his grievance petition as reproduced in paragraph No, 4 above, clearly show that his duty was to see that aforementioned acts were performed. He does not state therein that he had himself to perform those acts. It is admitted fact that on the day of incident also, the respondent did not perform any aforementioned acts himself, hut, the same were performed under his supervision. All this evidence clearly shows that the duties of the respondent were not of clerical or manual nature but were supervisory in nature. If he had to write any receipt or any list of the containers it was done as something ancillary and incidental to his supervisory duties. He, therefore, cannot be considered as a 'workman' as defined either in the Industrial Relations Ordinance, 1969, or in the Standing Orders Ordinance. Mr. M.L. Shahani, has relied upon the decision of this Tribunal in Appeal No, Kar-133/89 (Messrs Gulf Air Company v. S.M. Pervez Sarwar), dated 17-4-1989, wherein this Tribunal had held that the respondent Pervez Sarwar who was employed as Ramp Coordinator at Karachi Airport to be a 'workman. However, the question whether an employee is a workman or not, is a question of fact, which has to be decided in each case on merits on the evidence on record. It is a settled law that mere designation of any employee does not determine his status, whether he is a workman or not, but only nature of his duties would determine his status. Mr. Shahani has cited a case in his support which according to him is reported in 1977 SCMR page 307, but, I find there is no such citation in SCMR. The case reported at page 306 which is continued to page 307 is with regard to Rehabilitation Act and is not relevant to the present case. Mr. Shahani has also relied upon a Decision of Sindh High Court in the case of Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani, reported in PLD 1975 at 342, where it has been held that "neither the designation nor the salary is a factor for determining the status of the employee. The only criterion is the work that an employee has to do and the answerability for the performance.
11. Coming to the next point, it is an admitted fact that at the relevant time the respondent was working as Shift Incharge of Cargo Service at the Karachi Airport. Admittedly all the containers were prepared and loaded under his supervision. Admittedly one of the containers which was subsequently off-loaded contained narcotics. The respondent has denied that this container was prepared or load under his supervision, but, being Incharge of the Shift, he cannot escape from the responsibility in this respect. He had admitted that he had the knowledge that some Narcotics were to be exported through the Cargo of the appellants and that he had so informed his immediate boss a few days prior to this incident. Admittedly the respondent is related to certain Customs Officers. He had admitted in his cross-examination that he had allowed one container to be taken out of Security Zone. All these circumstances and admissions would show that his conduct does not appear to be above board. Having the knowledge of the possible smuggling through the appellants' Air Service, it was the duty of the respondent to be more cautious and vigilant. His conduct in allowing one container to he taken outside the Security Zone where it could have been easily loaded with contraband articles, would prima facie show that he did not act with honesty with regard to the business of his employer. Word 'honest' is not defined in Industrial Relations Ordinance or the Ordinance, but, is defined, in "Words & Phrases" Permanent Edition-- Volume 19A, as "characterized by, or indicative of honest and fair dealing, free from fraud, equitable, fair". 'Honesty' has been defined in same Volume to mean "fairness and straightforwardness of conduct, intergrity, freedom from fraud."
12. The conduct of the respondent on that night, as pointed above, does not appear to he straightforward or free from doubts. The charge of having acted with, dishonesty in connection with Saudi business appears to be proved even from his own admission. Charge of neglect of work also appears to be proved because either the excess container which contained the Narcotics was prepared and loaded under his supervision or because of his negligence it was prepared and loaded. In either case, it was done either with his collusion or due to his negligence. With regard to the charge of committing breach of Instructions and Rules, no Rules and Instructions have been produced by the appellants to show that any breach was committed by the respondent.
13. The respondent also attacked the conduct of the enquiry officer as it was alleged that the enquiry officer had cross-examined the respondent No,
1. The enquiry officer was admittedly not produced. Admittedly he put some questions in the cross-examination of the respondent. However, putting of some questions in corss-examination for coming to a correct decision in the enquiry would not vitiate the enquiry unless the enquiry officer was biased against the respondent or he acted in mala fide manner. The non-examination of the enquiry officer has deprived the respondent of his chance to show that he was biased or that he had acted mala fide. For that reason, I would have been inclined to order fresh enquiry but in view of my findings that the respondent was not a workman, he had no right to bring his grievance before the Labour Court nor the Labour Court could entertain any such grievance application moved by an employee who was not a workman.
14. For the aforesaid reasons, I am inclined to allow this appeal and would set aside the order of the learned Presiding Officer of the Labour Court ordering reinstatement of the respondent in service and payment of back benefits.