DECISION ' This is an appeal against the order, dated 3-12-1989, passed by learned Presiding Officer, Sindh Labour Court No,IV, Karachi, whereby he dismissed the grievance petition of the appellant.
2. The case of the appellant, in brief, is that the appellant was first appointed by Awami Autos in 1978 where he got promotion as Deputy Manager. His services were transferred to Respondent Company on 15-2-1984. In the year 1987 he was sent by the respondents for six weeks' training in Japan. On 20-9-1987 he is alleged to have committed theft in the 'Departmental Store' in Japan and was caught by the guard-woman of the Store and was subsequently detained by the police, but was let off on intervention of some Officer of M/s. Suzuki. Motor Company, Japan, who reported the matter to the respondent by telex. The appellant was re-called from Japan and on 27-9-1987 he was issued show-cause notice and was suspended. After domestic enquiry, his services were terminated vide order, dated 26-11-1987. The appellant served grievance notice upon the respondents but failing to get any redress he filed the grievance petition which was resisted by the respondents on the ground that the appellant was not a workman and further that misconduct was duly proved in the domestic enquiry.
3. I have heard Mr.Khalid Javed, learned Advocate for the appellant and Mr.Mahmood Abdul Ghani, learned representative for the respondents and have also gone through the record and proceedings of the case.
4. The main point that requires consideration is as to whether the appellant was a workman as defined under the Industrial Relations Ordinance, 1969 (hereinafter called the `I.R.O.' and under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the 'Ordinance'). The question as to who is workman has been subject-matter of discussions and decisions by the superior Courts in number of cases which have been summed up 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 in the following words:- "The test for determining the question whether an employee is al workman within the meaning of various statutes in the field of labour legislation is well-settled. 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."
5. In the case of General Manager, Hotel Intercontinental, Lahore v. Bashir A.Malik and others PLD 1986 SC 103, their Lordships observed as under:-- "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 that 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."
' No doubt the appellant is designated as Deputy Manager but that would not be alone conclusive proof that he is not a workman. In order to come to proper conclusion as to whether appellant was workman or not the nature of his work and his duties would have to be considered. The appellant has described his duties in detail in Para 3 of his Grievance Petition, which may be reproduced as under:-- "That the applicant used to perform the following duties in respondent company amongst others assigned to him from time to time by his superiors:-
(i) Carry out repairing of defective welding equipments (electronically controlled timer pannel)
Setting, adjustment of pannels (for required time, current) in case of usual abnormal operation not controlled by electrician during production;
(ii) Carry out repairing, checking and maintenance of paint shop control pannels (components/units) adjustment/setting in case of usual abnormal operation during production;
(iii) Ckt. Repairing, setting of Karcher phosphating plants in case of usual abnormal conditions during production and on maintenance day;
(iv) Repairing, maintenance of compressor control pannels setting, adjustment, checking abnormal conditions during production;
(v) Handling the operation of paint shop, compressors, Karcher phosphating plants every one/two hours and (necessary adjustment if required for smooth operation);
(vi) Prepare list for wearing parts/spares for paint shop, welding equipments and arrange procurement/import;
(vii) Installation, commissioning of new machines and equipment in plant;
(viii) Any other job/work assigned by the superiors from time to time; and
(ix) That during the training in Japan the applicant was required to perform manual work in the workshop/plant also."
6. The respondents have also produced a 'job description' of the duties that the appellant had to perform as ExA/17 which may also be reproduced as under:-- "(a) Principal duties: - In charge Plant Engineering (Operation and Maintenance), responsible for following:-- ' To manage and supervise overall operation and maintenance of Plant, Machines and Equipments and General Machinery including Compressors and Water Pumps.
(b) Subsidiary activities: - To manage and carry out preventive maintenance. - To manage'to carry out maintenance and repair work after break down. - Inventory of necessary spares for equipments. - Errection; installation, testing and commissioning of new plant, machine and equipments. - Dealing with K.M.S.C., Electric Inspector, Govt. Of Sindh regarding inspection, and electrical matters of plant, plots and new load.
(c) Unrelated functions: - Coordinate with allied Deptts. i,e, Supply, Store etc. - Look after and manage production activities in absence of Shift Production In charge."
' The appellant denies to have received his 'job description' and also denies his signature upon it which I will discuss later.
7. In this context it may also be pointed that respondents have produced the `Instructions' issued to the appellant with regard to his conduct and behaviour in Japan which is Ex.R/2. Instruction No,19 has been relied upon by the learned counsel for the appellant which reads as under:- "19. You will follow and carry out without demur all directions given to you from time to time by Suzuki Motor Company Limited and wholeheartedly apply yourself to work manually in the workshop/Plant and job which may be assigned to you during training in Japan."
8. Mr. Hamid Hassan, Senior Manager of the respondents has admitted that he was the 'Head of Department' and that the appellant used to work with him as Deputy Manager (Electrical Installation and Maintenance). He has further stated that as Deputy Manager (Electrical Installation and Maintenance) prime nature of the work of the appellant was to supervise the work in the Electrical and Mechanical Maintenance and that he used to manage and supervise over all operation and maintenance of plant machines and equipments and the general machinery with more than twenty workers working under him. He has denied that the appellant used to work with his own hands on various machinery but has admitted that Electrical Installation and Maintenance is part of Plant Engineering Maintenance. He has also admitted that the appellant had no powers of termination of employees but he could recommend their promotion and approve the leave application. He has admitted that Annual Appraisal Form which was signed by the appellant also bears his signatures. Lt.-Col. Mir Saadatullah, General Manager states that main and prime duties of the appellant are incorporated in the 'job description'. He also stated that erection, installation, testing, commission used to be executed and supervised by him but physical and manual work was performed by workers only who were working under his supervision. He also denied in the cross-examination that petitioner used to perform duties of manual nature. The two other witnesses namely Muhammad Akbar and Muhammad Imtiaz also state that the duties of the appellant were supervisory.
9. From the evidence of the witnesses it would appear that the appellant was not 'Head of the Department' and had no powers of hire and fire. He had to execute and supervise the erection, installation and maintenance, testing and commissioning of new plant machines and equipments.
It is stated that twenty workers are working under him, but there is nothing on record to show that whether these workers were 'skilled workers' or 'unskilled workers'. Appellant, admittedly is an Engineering Graduate and was also sent for training to Japan twice specially in welding. He was a 'skilled' person. The installation of the new plants and machines would not only require the manual labour of unskilled workers, but would require the manual work of skilled workers also. The plants and machines of the respondent Company, which manufactures Cars must be of highly technical nature. Their repairs also cannot be done by unskilled workers but require to be done by skilled workers. Keeping this background in view the evidence of the appellant with regard to description of duties that he performed does not look improbable but looks more probable. This also finds support from the 'job description' ExA/17 wherein subsidiary duties shown are same functions that the appellant states to be performing manually. The fact that these duties are specifically shown in the 'job description', would show that they were his regular duties even if they are termed as subsidiary duties. The main duties are shown to be to supervise overall operation and maintenance of plant equipments and general machinery. The main duties do not include the duties of erection and installation which are shown in subsidiary duties. The duties of erection, installation, testing and commissioning of new plants and machinery and equipments is a duty independent of the duties mentioned as Principal Duties and cannot be said to be ancillary to or incidental to the main duties. Though the appellant denies to have received his job description and denies his signature on the said job description and though there is no sufficient proof to show that job description was served upon him or bears his signature but the duties shown in the job description are the duties which admittedly the appellant performed. The supervision, operation and maintenance of machines would come only after the erection and installation of the machines. The erection and installation of machines could not be considered to be incidental or ancillary to the duty of supervision but would be an independent duty. This was one of the substantial duties of the appellant which he was duty bound to perform. Such a work can be performed only by an skilled workman. Therefore, even according to the 'job description' the appellant would be a workman within the defmition of worker under section 2(i) of the Standing Orders Ordinance.
10. The next question for consideration is whether the charges against the appellant have been duly proved in the enquiry. It may be pointed out that there is no eye-witness to the incident. The respondent has examined two witnesses who deposed during the evidence before the Enquiry Officer as well as before the learned Labour Court. They are Muhammad Akbar and Muhammad Imtiaz, who were with, the appellant in Japan while under training. The appellant is said to have picked certain items from `NICHI' Store in Japan and is said to have left the Store without making payment, when he was detained by guard-women who subsequently handed him over to Police: Mr.Muhammad Imtiaz 'was admittedly with the appellant in the Store. According to the appellant, he picked up thermos,' pen-light torch and its batteries on the second floor of Store and then found that Imtiaz was missing, therefore, came to the ground floor to search for him. He states ,to have picked up one P-Cap on the ground floor also and wanted to make payment on the ground floor but before that two ladies came to him and started saying {{URDU TEXT}}which mean 'did you pay the money' to which he replied {{URDU TEXT}}which means 'not yet but I am going to pay for all these articles'. He states that those ladies took him to the office where Police was called. The fact that both he and Imtiaz had gone for shopping together and that he and Imtiaz missed each other on the second floor finds support from the .Evidence of Imtiaz before the learned Labour Court. He states that on various occasions the appellant left him alone and he had to search for him and he was informed by guard that his friend was waiting in the Guard Room. He has admitted in the cross-examination that it was a fact that petitioner (appellant) in his presence in the Guard Room and at Police Station, explained that he did not know that the payment was to be made at the Second floor in respect of the articles he picked up from second floor and that he was under the impression, that the payment of entire shopping was to be made on the ground floor. The contention of the appellant also finds support from the evidence of Muhammad Akbar who was called to the Police Station. In the cross-examination he has admitted that petitioner told him, that he was under the impression that payment of the purchases were to be made by him on the ground floor and he was not able to convey his misunderstanding due to language problem to the staff of the Store. He also admitted that the appellant used to stammer while speaking. In his statement before the Enquiry Officer Muhammad Akbar Khan had stated the appellant told him that while looking for making payment, some guard-woman came to him and shouted 'OKA Ney - OKA Ney' which means in Japani `did you pay money' and in reply I said `KAI TAI - DESU' which means 'I want to buy'
11. Admittedly there are payment-counters on every floor. No offence of theft could be made out unless the appellant had left the Store without making payment. According to the appellant the version given by him immediately after the incident to the two witnesses Mr.Akbar and Mr.Imtiaz was that he was detained by the woman guard at the ground floor while he was finding counter to make payment. The possibility that some misunderstanding might have been caused due to language problem cannot be ruled out. It is very unfortunate, but it is being reported frequently in the newspapers about the 'maltreatment' the Pakistanis are facing abroad and the mistrust with which they are looked at. Though such a suspicion is unfortunate and uncalled for but we close our eyes to realities. Many Pakistanis who go abroad have bitter experience of such nature. Under the circumstances the explanation of the appellant that the guard-women misunderstood him cannot be ruled out. It looks more probable because of his problem of stammerring.
12. No doubt in the telex that the respondent received from Mr. K. ANOUMA of Pak Suzuki Japan, the appellant is alleged to have left the store when he was caught by the guard-women, but Mr. ANOUMA is also not an 'eyewitness' of the incident, but had reported what he was informed by the Store Manager or the Police. When asked to send the police report Mr. ANOUMA again sent another letter which is Exh. A.16 which has been produced by Lt.-Col. Saadatullah in his additional evidence.
Under this letter he informed the respondent, that there was no such procedure in Japan to issue any Police Report or letter from Japan Police for submission to Court outside Japan.
13. Thus, the only evidence against the appellant is letter from Mr. ANOUM A who not only not an eye-witness but the appellant did not have opportunity to test the veracity of his evidence by way of cross-examination or put to him in the cross-examination his own version of the incident. It is an accepted universal principle of evidence as well as of natural justice that evidence of witness, whom the accused person was not afforded opportunity of cross-examination, cannot be used against him. His letter or telex cannot be considered as an evidence sufficient for holding the appellant guilty of the alleged offence of misconduct. The appellant has explained the incident and .Reason why he was detained which does not look improbable. Such misunderstandings do happen is evident from the evidence of Imtiaz, who was also detained by the Police and the guard- woman for not paying for certain items but subsequently was let off when he was able to explain to them. The version put forward by the appellant finds support from the two witnesses of the prosecution to whom the appellant immediately informed about what had happened. A Pakistani National cannot be punished only because a General Manager of a Foreign Company has written a complaint against him, with regard to some incident to which he was not an eyewitness. In my opinion the evidence on record does not prove the charge of misconduct against the appellant.
14. I accordingly allow this appeal and set aside the order of dismissal of the appellant and order his reinstatement with full back benefits.
15. The order to be implemented within one month.