DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, whereby grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.
2. I have heard Mr. Raees M. Mushtaq, learned Advocate for the appellants and Mr. Syed Fasahat Hussain Rizvi, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the respondent was admittedly appointed as Chowkidar by the appellant and he was removed from service vide order, dated 22-10-1985 Exh. A/1. After serving grievance notice upon the appellant the respondent filed grievance application which was resisted by the appellant mainly on the ground that he was not a workman and therefore he was not entitled to seek relief under section 25-A of I.R.O., 1969. The case was initially decided by the learned Presiding Officer, Sindh Labour Court No, VI, Hyderabad on 7-8-1986 whereby grievance application of the respondent was dismissed. In Appeal No, HYD-237 of 1986 this Tribunal, vide order, dated 12- 9-1989, by consent of the parties, set aside the order of the learned Labour Court and remanded the case back to the learned Labour Court to decide the case afresh on merits after giving opportunity to parties to lead evidence as regards the nature of duties of the respondent. After the parties led the evidence the learned Labour Court decided the grievance petition in favour of the respondent.
4. It is settled law that it is not designation but the nature of work of the employee that would be essential and fundamental consideration for determining the question as to whether he was workman or not. The learned Labour Court in this respect has relied upon the case of Hotel In continental v. Bashir A. Malik PLD 1986 SC 103. The leading came with respect to Chowkidar/Security Guard is the case of Security Papers Limited v. Sindh L abour Appellate Tribunal and another PLD 1988 SC 180, wherein also their Lor ships reiterated the principle that test for determining the question whether employee was workman within the meaning of various statutes in the field of labour egislation was the nature of work done by the employee. Their Lordships while dis cussing the case observed:-- "Having regard to the principle postulated in the aforesaid judgment of this Court, we feel that in the present case there was evidence on record which indicated that respondent No, 2 was requireed to do manual labour as an essential part of his duty. Admittedly the routine of his duties involved the search of workers who entered the p remises of the Mills or left therefrom. As this is a question of fact and the finding recorded by the Labour Court remains in the field undisturbed, there was no justification for the Appellate Tribunal to hold that the Security Guard as a rule cannot be regarded as a workman. In view of the test laid down by this Court such a question has to be decided in each particular case in the light of evidence brought on record. Learned counsel for the appellant referred us to Rab Nawaz v. Sindh Labour Appellate Tribunal and others PLD 1987 Kar. 175, in which, having regard to the nature of duties done by him, an employee who was employee as a Chowkidar in the Rice Export Corporation of Pakistan Limited was held to be a workman within the meaning of the Ordinance on the same principles. In this case the learned Judges of the Sindh High Court referred to an unreported judgment of this Court in the case of Organisation of Karachi Port Trust Workers v. Karachi Post Trust etc. (Civil Appeal No, K-6 of 1968), wherein on the basis of the definition of the word "workman" given in section 2(n) of the Industrial Dispute Ordinance, 19 59, it was held that the Chowkidars were workmen, and pointed out that the said definition was in pari materia with the definition of "workman " in the Ordinance."
5. In the instant case the respondent in his affidavit-in-evidence has given details of the nature of the work done by him. He states that 'it was within his duties to open and close the gate, to check and take search of the labourers, to check the vehicles coming inside the factory and going outside the factory, to check the vehicle taking the goods inside the factory and outside the factory and used to remain at the gate. Further to carry the files from one office to other office and to clean tables, chairs and to serve tea to the officers. In the cross-examination it is suggested to him that he was not doing any manual duty to which he replied in negative. As against this evidence of the respondent the appellants have examined Syed Sabir Hussain Rizvi, Manager Administration, Zaheer Hussain Hyderi, Labour Welfare Officer and Yar Muhammad Security Incharge. All of them state that the respondent was not doing any manual work and was not doing the work that he alleged to be doing but they do not state as to of what nature his duty was except that he worked as Security Guard. He would have also been assigned certain duties as Security Guard but it is not clear as to what exactly were those duties. R.W. Yar Muhammad has admitted in the cross- examination that there were 'duty chart' of Chowkidars in the mill and that Chowkidar signed on duty chart and signature of respondent was also obtained on the chart by the respondents. This admitted chart was not produced in the Court. Non-production of this 'Chart' would raise presumption against the appellants, specially when the case was remanded in order to give chance to the parties to lead evidence with regard to the nature of duties of the respondent.
6. The position that emerges is that there is positive evidence of the respondent as to the nature of his duties as against the negative evidence of the witnesses of the appellants, who simply deny that the respondent was performing the duties as alleged by him but do not state what exactly were the duties that he had to perform. Admittedly the 'Duty Chart' of Chowkidar does exist, but it has not been produced. Under the circumstances the evidence of the respondent regarding nature of duties is more believable.
7. In view of the evidence discussed above and the law laid down by their Lordships in the case of Security Papers Limited as reproduced above, I agree with the finding of the learned Labour Court that the respondent was a workman within the meaning of Labour Laws.
8. It is not disputed that West Pakistan Industrial & Commercial Employment (Standing Orders)
Ordinance, 1968 is applicable to the appellant establishment. Standing Order 15(4) prohibits the dismissal of the workman unless the workman concerned is informed in writing of the alleged misconduct within 30 days of misconduct and is given opportunity to explain circumstances alleged against him. The dismissal order Exh. A/1 may be reproduced as under:- "You were repeatedly reported absent from place of duty and you were accordingly issued several letters from time to time but you did not improve as such your services are terminated with immediate effect. However, you will be paid one month's wages in lieu of notice."
(Sd.)
Brig. (Retd.) General Manager (M. SHUAIB KHAN LODHI, S.I.(M)."
9. It clearly shows that the respondent was removed from service for misconduct viz. Habitually remaining absent from duty. It is not disputed that neither any notice as required under section 15(4) was given to the respondent nor enquiry as envisaged in the Standing Order was held against the respondent. As such the Labour Court has rightly set aside the order of dismissal.
10. Mr. Raees M. Mushtaq has relied upon certain other case-law to show that Chowkidar was not a workman but I need not discuss that case law in view of the clear decision of their Lordships of the Supreme Court in the case of Security Papers Limited which still holds the field.
11. I find no merits in this appeal which is, accordingly, dismissed.