DECISION This is an appeal against an award of the learned Chairman of the Second Sind Labour Court, Karachi, dated October 25, 1972 whereby the learned Court ordered the respondent to be re- instated in service with full back benefits. The facts giving rise to the present appeal briefly put are these.
2. The respondent Wahid Bux was employed as a Chowkidar in the Corporation of the Appellant. The respondent's case, was that when he reported for duty on 25th May, 1971, he was not allowed by the appellant to resume work. He had taken 24 days' oral leave from the Corporation, on the lst of May, 1971. He was not given any show-cause notice. He filed the application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), on 8th June, 1971, within about two weeks of the refusal of the Corporation to allow him to resume his duties.
3. The appellant took two objections, namely, (1) that the respondent was not a workman within the meaning of the provisions of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), and (2) that he had not complied with the procedure prescribed under Standing Order 18 of the Standing Orders Ordinance, as it then stood.
4. The learned Chairman of the Labour Court came to the conclusion that as the definition of "workman" given under the Standing Orders Ordinance does not exclude a Chowkidar from its definition, the respondent was a workman. He also held that as the Corporation had not terminated the services of the respondent after complying with the provisions of the Standing Orders Ordinance, the respondent cannot be said to have any grievance against any of the provisions of the said Ordinance and, therefore, the application under section 34 of the Ordinance was maintainable. Mr. Khalid Jamil, the learned Advocate for the appellant, contended that as the work that the respondent was required to perform was neither clerical nor manual, he cannot be said to be a workman. For the purposes of this case and without going into any detail of his contention, I would hold that the respondent was not a workman.
5. If the respondent was not a workman within the meaning of the definitions of "workman" given under the Standing Orders Ordinance, the provisions of Standing Order 18 would not be attracted in his case.
The respondent would be justified to make an application under section 34 of the Ordinance, provided he was a workman within the definition given in the Ordinance. The definition of "workman" in the Ordinance is wide enough to include even a Chowkidar as a workman. Workman under the Ordinance means : " . . any person not falling within the definition of employer who is employed (including employment (as a superviser 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 0b)....................................................................................................................... "
6. I would hold that the respondent is a workman within the meaning of the definition given under the Ordinance.
7. Section 34 of the Ordinance, as it stood on the date when the respondent made the application would give him a right to apply to the Labour Court "for the enforcement of any right guaranteed or secured to him by or under any law or any award or settlement." The question would be as to what is the right that was secured to him. The principle of natural justice is a right that is guaranteed or secured to the respondent. His services could not be terminated without calling upon the respondent to1 to show cause why his services should not be terminated for absence without leave from lst May to 24th May, 1971.
8. While disposing of this appeal, 1 may mention that the Standing Orders Ordinance applies to workmen who are serving in Industrial Establishments wherein 50 or more workmen are employed or Commercial Establishments where 20 or more workmen are employed. In case where less than the said number of workmen are working, they cannot take advantage of the provisions of the Standing Orders Ordinance. In other words, they could not make an application under Standing Order 18 of the Standing Orders Ordinance. They, however, if they were workmen within the meaning of the definition given in the Ordinance, could apply under section 34 of the Ordinance, as it stood prior to 7th November, 1972.
9. As I have come to the conclusion that the appellant has violated the principle of natural justice, inasmuch as it did not give the respondent a show-cause notice before terminating his services, it would prejudice the parties if I were to comment as to whether the respondent had proceeded on leave or not. This was not the real issue before the learned Labour Court. The issue before the Court was as to whether the respondent was a workman and whether he was bound to comply with the procedure laid down under Standing Order 18 of the Standing Orders Ordinance. Any observation by the learned Labour Court as to whether the respondent had proceeded on leave is obitor dicta and is not binding on the parties.
10. I would modify the award of the learned Labour Court and hold that the appellant having not complied with the principle of natural justice, the respondent is entitled to re-instatement. It would, however, be open to the appellant to give a show-cause notice and hold an enquiry into the alleged misconduct and pass an order. If, on enquiry by the appellant, it is found that the respondent is not guilty of any misconduct, he would be entitled to wages from 25th May, 1971 till the date that he is re-instated. On the other hand, if the respondent is found to be guilty of misconduct, he would not be entitled to back benefits, except for what he may earn from the date of this order till the result of the enquiry. I would allow the respondent costs of Rs. 200 to be paid within a week from the date of this order. 1975 353