DECISION ' This is an appeal against the order, dated 10-12-1989, passed by the learned Presiding Officer, Sind Labour Court No,III at Karachi, whereby the grievance petition of the appellant was dismissed.
2. The appellant was admittedly employed as Security Guard by the respondents at their godown at Sukkur, on 18-2-1987. He is alleged to have proceeded on leave without obtaining prior permission from the competent authority. He was issued a 'show-cause notice' dated 15-3-1987 and after domestic enquiry he was dismissed from service vide order, dated 28-10-1987. After serving grievance notice upon the respondents, he filed grievance petition before the learned Labour Court which was resisted by the respondents on the ground that the Court had no territorial jurisdiction, that the appellant was not a workman, that the grievance petition was time-barred and that the charges were proved against the appellant in the domestic enquiry.
3. I have heard Mr. M.L. Shahani, learned Advocate for the appellant and Mr. Rafat Osmani, learned counsel for the respondents and have also gone through the record and proceedings of the case.
4. The issue of limitation and territorial jurisdiction has been decided by the learned Labour Court against the respondents against which no cross-appeal or objections were filed, and therefore, I need not discuss these issues further.
5. The main ground on which the grievance petition was dismissed by the learned Labour Court is that the appellant was not a workman. The question as to who is workman as defined under the labour laws has been subject-matter of number of decisions of the Superior Court. The consensus of opinion of these decisions has been summed up by their Lordships in the case of General Manager, Hotel Intercontinental and another v. Bashir A. Malik PLD 1986 SC 103 in the following words:- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
' This view was reiterated by their Lordships of the Supreme Court in the case of Security Papers Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 Supreme Court 180. Incidentally the workman in this case was a 'Security Guard'. There was admission of the employer's witness that Security Guard in the mills was required to search the persons or workmen entering and leaving the mills, and therefore, their Lordships held that Security Guard was workman. In fact this appeal was decided by the Hon'ble Supreme Court against the decision of Sindh High Court in the case of Rehmat All v. The Security Papers Ltd. And another PLD 1982 Kar.
913. In this case their Lordships of High Court have discussed the various authorities on the definition of workman. Reference was made to a decision of the Hon'ble Supreme Court in Civil Appeal No, K-6 of 1968 decided on 19-1-1970 in the case of Organisation of K.P.T. Workers v. K.P.T., wherein their Lordships of Supreme Court held that Chowkidars and Havildars in the Watch and Ward Department of the K.P.T. Were workmen as defined under section 2(n) of the Industrial Disputes Ordinance, 1959.
6. After considering various authorities the learned Judges of the Sindh High Court in the case of Rehmat Ali v. The Security Papers Ltd. And another PLD 1982 Kar. 913 made the following observations:- "We are inclined to hold that the words 'any manual' and 'work' employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and, therefore, they will cover a person, who performs any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs to a labour class. In our view the question, whether a person predominantly performs a manual work or that manual work is incidental to his main work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2(xxviii) of the LR.O., the managerial staff or the person who supervises that work of others and draws monthly salary of Rs,800 are excluded from the ambit of the definition of worker and workman given in the above provision. It may be observed that when a Court is to determine whether a person falls within the category of a managerial staff or within the category of worker and workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominantly performs manual work or predominantly performs managerial work.
Similarly if a person falls in the class of Executive like a General Manager or an Executive in a Company, in that event the mere fact that such a person uses his hands, which takes a fraction of the time of his working hours, will not make him a worker or workman within the ambit of either section 2(i) of the Ordinance or 2(xxviii) of the I.R.O. However, where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance or the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of time as compared to the hours of duties."
' Their Lordships further observed:- "In our view the mere fact that a person is employed by the designation of Chowkidar or Security Guard will not exclude him from the definition of workman given in section 2(i) of the Ordinance.
The Court will have to determine the nature of duties. If a Chowkidar or a Security Guard performs any of the duties of the nature referred to in the definition, he will be covered by the definition."
7. Keeping in view the definition of workman as communicated by their Lordships of the Supreme Court and Sindh High Court in the aforementioned cases I now proceed to discuss as to whether the appellant can be considered as workman. Admittedly he does not belong to managerial or executive class but belongs to labour class. Mr. Syed Solat Omer, witness of respondents, who was the Zonal Manager of the respondents at Sukkur has stated in his affidavit-in evidence that counting of bales of the loaded truck is done by the Godown Keeper and the work of the Security Guard is only to the extent that he collects receipts gate passes from truck drivers'.. He states 'duties of Security Guard are to remain at the platform plinth of his posting which are under his guard'. He also states "when posted at the gate, the Security Guard's duty is only to check that no driver, person takes cigarettes, match etc. Inside the Store Godown and no unauthorised person enters the Store Room and has to collect gate passes from truck drivers when they go out." In the cross-examination he has admitted that the appellant was given 'job description' but he could not produce it now. Thus, though the 'job description' was there but it was not produced by the respondents. Besides Zonal Manager would not be expected to personally see as to what work was actually being done by Security Guard. The other witness examined by the respondent is Mr. Aftab Ashraf Shaikh who was General Manager (Personnel) who is posted at Karachi. He has also not produced 'job description' of the appellant therefore his evidence as what work appellant actually performed at Sukkur would have no value. It leaves us with the evidence of the appellant himself who, in his affidavit-in-evidence, has stated in Para. 5 that 'he used to open gates for incoming and used to check the goods loaded on the trucks and to see that goods were not loaded with stuff, which was not accounted for and he used to check the goods against the gate pass." In fact the duties that he states to be performing tally with the duties of the appellant given by witness Syed Salat Omer. The process of checking to see that no contraband articles are taken inside or taken out would involve manual work. The manual work performed by the appellant in this base, in fact, is similar to manual work which was performed by Rehmat Ali who has been held to be workman by their Lordships of the Sindh High Court. This decision of the Sindh High Court was upheld by the Hon'ble Supreme Court in the aforementioned case of Security Papers Limited. I am, therefore, of the view that the appellant was a workman.
8. The only other question that requires consideration is whether he had committed any act of misconduct for which he could have been dismissed from service. In the show-cause notice two acts of misconduct have been brought to his notice. Firstly that he was in the habit of leaving place of duty by submitting application for leave. It may be pointed out that no details of previous acts of misconduct were mentioned in the show-cause notice. It was not shown on what date or dates, on previous occasion, he had committed alleged acts of misconduct. A dismissal order on such a vague charge cannot be sustained as such a vague charge would not afford full and proper opportunity to the workman to defend himself.
9. The second charge is specific. It states that he gave application dated 16-2-1987 for leave and absented himself from duty from 18-2-1987 without waiting for sanction of leave. The case of the appellant is that his mother had died on 13-2-1987 and on receiving telephonic message he left blank application with the Godown Keeper to be filled on his behalf for 15 days leave from 18-2- 1987. This stand was taken by him even before the Enquiry Officer. Mr. Muhammad Rafiq, Security Guard was examined before the Enquiry Officer, he states, that he received a phone call from Karachi and he called the appellant to talk on the telephone. He was, however, unable to say with regard to substance of the talk. The Godown Keeper Karim Bux has stated before the Enquiry Officer that the appellant received a telephonic call from Karachi that his mother was seriously ill and then he gave application for leave and on his return from leave he informed them that his mother had died. The appellant had also produced alongwith his application the 'death certificate' of his mother which shows that his mother died on 13-2-1987, though it was reported to the Union Council on 10-10-1987. The contention of the appellant, that his mother had died and on receipt of information he left leave application with the Godown Keeper and went to his village gets support even from the evidence of witnesses of the prosecution before the Enquiry Officer. When a person's mother dies he would naturally be so much emotionally upset that he could not be expected to wait for formalities of getting the leave sanctioned, though technically he would be committing the breach of the rules.
10. It is contended by Mr. Rafat Osmani that in the application for leave this reason was not shown.
Mr.Syed Salat Omer had admitted that this application is written in English. To a suggestion that the appellant did not know English he replied that he did not know. All these facts tally with the contention of the appellant that he left the application with the Godown Keeper.
11. Standing Order 8 deals with the leave. Clause (2) of Standing Order 8 which requires the workman to obtain prior permission before leaving station, also casts duty upon the employer to pass an order within a week of submission of leave and if the leave is refused the order be communicated to workman. Leave application has been produced by the respondent's witness as Ex.5-A. There is no order on it whether sanctioning leave or refusing leave but the 'noting' shows that appellant should be asked to show cause why disciplinary action should not be taken against him. In fact the breach of rules has been committed by both the parties. There is no evidence to show that the refusal of leave was communicated to the home address of the appellant who, therefore, availed of 15 days before returning back to his duty. Under the circumstances as his application for leave was not refused he cannot be said to be guilty of charge of remaining absent for more than ten days without leave. In fact in the dismissal order his absence from duty is treated as leave without pay.
12. The only misconduct that he could be said to have committed would be breach of rules viz. That he left the station without prior permission which is punishable under clause (1) of Standing Order 15 with fine only.
13. In view of the aforesaid circumstances allow the appeal, set aside the impugned order and order reinstatement of the appellant. However, under the circumstances of the case I award him only thirty per cent back benefits.