DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, 1 at Karachi, dated 11-10-1989, whereby he ordered the reinstatement of the respondent without any back benefits.
2. I have heard Mr. H.A. Jaffery, learned Advocate for the appellants and Mr. Muhammad Rashid Khan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts leading to this appeal are, that the respondent claims to have been appointed as Security Guard on 19-7-1984 on daily wages. He was given appointment orders from time to time, but, he claims to have been working since 19-7-1984 on the job of permanent nature though he had not been given the rights and benefits of a permanent workman. His services however were terminated on 23-4-1987 on the ground that the temporary job on which he was engaged had been completed. The appellants did not reply to the grievance notice, therefore, the respondent filed his grievance petition before the learned Labour Court. The appellants resisted the grievance petition on the ground that the respondent was not a workman and that he was a temporary employee whose services were legally terminated on the completion of the job.
4. The first order of appointment has been produced as Annexure A.W/1/1. It shows that the respondent was appointed on temporary basis from 19-7-1984 to 15-10-1984. However, the witness of the appellants, Mr. Abdul Latif has admitted in the cross-examination that according to attendance register, the respondent was continuously in the employment from 19-7-1984 to 30-9- 1984. He has also further admitted that presently there was no temporary Security Guard in the establishment and the Security Guards working in the establishment had been made permanent since the date of their appointments. He has also further admitted that the job of the Security Guard was of permanent nature. He also admitted that one Muhammad Sadiq who was also working as temporary Security Guard alongwith the respondent was made permanent in December, 1984. He has also admitted that the respondent alongwith other 2 Security Guards were recommended by the Deputy Manager for making them permanent. He has also admitted that he could not say if the respondent was sent for medical examination or if a certificate was issued by the Doctor. He has also admitted that the termporary Security Guards were made permanent when their work was found satisfactory as per report of the superiors. His statement that the respondent served only up to 30-9-1984 does not appeal to reason as his appointment letter was admittedly up to 15-10-1984. His admission that the respondent served continuously from 1-11-1984 to 30-4-1985 would under the circumstances tend to show that there was no break in service of the respondent from 19-7-1984 up to 30-4-1985. Keeping in view all these admissions, as a consequence of continuous employment of the respondent in a job of permanent nature at least from 19-7-1984 to 30-4-1985, the respondent had acquired the status of a permanent worker. It may be pointed that there is no evidence to show that his services were terminated at any time by any order, in writing, as required under Standing Order 12(3) except the final order, dated 23-4-1987 to which I would advert later.
5. It is contended by Mr. Jaffery, the learned Advocate for the appellants that further appointment letters which admittedly have been issued by the appellants, show break in service of the respondent and even if he had any cause of action as a permanent workman in 1985, he could not invoke the same in 1987, as the last appointment order was for job of temporary nature, which is dated 9-2-1987. I have already pointed that though the appointment order Annexure A.W.1/1 shows the appointment of the respondent on temporary basis up to 15-10-1984, but, he continued up to 30-4-1985 for which there was no fresh order of appointment. The second order is A.W.1/2 which is effective from 17-2-1985. It does not specify the period for which the respondent was appointed, but, only shows that he was appointed on temporary job likely to be completed within 89 days.
Simliar is the position in orders, A.W.1/3 with effect from 20-5-1985; A.W.1/4 with effect from 18-8- 1985; A.W.1/5 with effect from 17-11-1985; A.W.1/6 with effect from 17-2-1986 and A.W.1/7 with effect from 15-5-1986. It may also be pointed that all these appointment letters are issued after some time after the appointment had commenced. For example, the order A.W.1/2 which employed the respondent with effect from 17-2-1985, is dated 28-4-1985. No evidence has been produced to show that after the alleged appointment each time, the services of the respondent were terminated by any written order. These appointment letters do not appear to be above suspicion and would not prove any break in the service of the respondent. Even the Attendance Registers have not been produced by the appellants, to prove the alleged break in service after each appointment had expired. However, the last three appointment letters, A.W./1/8, A.W.1/10 and A.W.1/11, dated 19-8-1986; 18-11-1986; and 9-2-1987 respectively are for specific periods; but, there is no evidence of the break in service in between these 3 orders. In fact, the termination of service of respondent on the date up to which the appointment of the respondent was made, does not appear to have been strictly enforced by the appellants as it is admittedly clear at least in the case of the first appointment order which appointment was up to 15-10-1984, but, the respondent apparently continued in service up to 30-4-1985 without any further orders.
6. Keeping in view the evidence of both the parties, admissions of the appellants' witness and the documentary evidence, I am inclined to uphold the decision of the learned Labour Court that the respondent was a permanent employee of the appellants at the time when his services were terminated.
7. Mr. HA. Jaffery, the learned Advocate for the appellants has relied upon the case of PIA v. Sindh Labour Court No,V and others, reported in PLD 1980 SC 323. However, the reported case is distinguishable from the instant case. In the reported case, the workman was employed by a Contractor to supervise the construction which was a work of temporary nature though it lasted for more than 9 months. Their Lordships, therefore, held that as the workman was employed to supervise a contract of limited duration, he was not employed on permanent basis, hence, he was not a permanent workman, though the work lasted for more than 9 months. Admittedly, in the present case, the respondent was a Security Guard which is a work of permanent nature.
8. The next question that requires consideration is whether the respondent was or was not a workman as defined in the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to him his duty was to collect the gate passes and make entry in register; to stand at the main gate, to check the vehicles; to open and close the gate as ordered by the Seniors, to check the heavy vehicles; to watch and stop the unconcerned/ criminal people, not to allow them to enter the premises of the appellants' establishment. The learned counsel for the appellants had relied upon a decision of this Tribunal in the case of Rab Nawaz v. Rice Export Corporation reported in 1982 PLC 226. In that case also, the appellant was a Watchman and had claimed that he was required to also perform other duties such as checking of each and every truck coming in and going out of the premises of the management, counting the number of bags received and sent out, taking sample of rice received for the purposes of checking its quality and sometimes making tea for serving the same to the staff of the management. This Tribunal, however, did not consider him a workman as in the opinion of the Tribunal other duties were incidental to his work as a Watchman and his main duties did not require any manual work. The question as to whether Security Guard is or is not a workman has been a subject-matter of a number of decisions by the superior Courts. In the case of Security Paper Limited v. Sindh Labour Appellate Tribunal and another, reported in PLD 1988 SC 180; their Lordships had observed that "it was the nature of the work done by the employee that would be essential and fundamental of consideration for determining the question as to whether he was a workman and not his designation." In that case the watchman was also required to search the labourers who entered or left the premises of the Mill which in the opinion of their Lordships was manual and, therefore, the watchman was held to be a workman. I have already pointed the duties that the respondent states to have been performing. The appellants' witness in his cross- examination had admitted that the job of Security Guard was to check the vehicles; to open and close the gate and to collect the gate passes and to enter the same into register. Thus, all these duties enumerated by the respondent as well as admitted by the appellants' witness involve manual work and these duties from essential part of the normal duties of the Security Guard. As such, the learned Labour Court had rightly held the respondent to be a workman.
9. The termination letter shows that the services of the respondent were terminated only because the work for which he was employed had been completed. This reason is contradicted by the admissions of the witness of the appellants that the work of Security Guard was of permanent nature. I have already held that the respondent had required the status of a permanent workman and as such the reasons shown for termination of his service cannot be considered as valid as contemplated under Standing Order 12(3) of the Standing Orders Ordinance, 1968. The termination order is, therefore, not sustainable.
10. In view of the above discussions, I see no merit in this appeal which is accordingly dismissed. 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.