DECISION ' This appeal has been preferred by Muhammad Ramzan from the order, dated 23-11-1999 of Sindh Labour Court No,VI, Hyderabad, whereby the appellant's grievance petition was dismissed. The factual background of the appellant's case is that he was appointed as operator in the respondents 'Mills with effect from 1-6-1982 and worked in that capacity as permanent workman for, nearly 7 years. It is said that the appellant was referred by the Respondents/Management to Direct* General, Health Services for check up and Invalidation Certificate. Accordingly Medical Board was constituted which declared the appellant to be a completely and permanently incapicitated for further service. In view of these findings of the Medical Board, the Respondents/Management was bound to pay the appellants a huge sum of Rs,1,50,000 in the shape of Group Insurance, gratuity etc. To avoid such payment the respondents/Management prepared a plan and as a first step towards its implementation the appellant was illegally locked- out and forcibly ousted from mills' premises. The matter was reported to Labour Directorate Hyderabad whereupon protracted proceedings took place. One meeting which was fixed in the Office of Deputy Director Labour on 23-8-1997 was got changed to 27-8-1997 without the knowledge of appellant and behind his back. Nevertheless on the changed date the Management agreed to maintain the status quo, undertaking further not to take any punitive action against any worker. But in violation of that undertaking the appellant was dismissed from service vide order dated 26-8-1997. As a result of the alleged enquiry held ex parte. Thereupon, the appellant after complying with legal requirements, filed grievance petition in the Labour Court with the result mentioned above. Hence this appeal.
2. As per Reply Statement filed by the Respondents/Management in the lower Court the appellant was working as a Jobber drawing Rs,4,800 as his salary at the time of termination of his services. It was denied by the respondents that he was a workman and as such, he could not avail the benefit of section 25-A of I.R.O., 1969. The respondent's version of the case was that appellant's dismissal was due to his misconduct as he had disobeyed the instructions of Mr. Khurshid Khan. Incharge Finishing Auto Cone Section with regard to temporary change of checker. He was accordingly charge-sheeted on 30-7-1997 (R.2, pages 1 to 4) but instead of appearing before the Enquiry Officer he approached the Deputy Director Labour and then Assistant Commissioner/SDM Kotri. When the said officers were apprised of the true facts, they advised the appellant to approach the Labour Department for his defence. As regards enquiry the respondent's case is that he failed to turn up upto 4.00 p.m. On 9-8-1997 whereupon the enquiry was adjourned to 15-8-1997 but on that date too he did not attend. Therefore, the enquiry was held ex parte. The respondents have also denied the appellants' allegation that he fell ill due to employment in the mills. They further pointed out to his inconsistent stands inasmuch as that on one hand he was declared by Medical Board as totally unfit and permanently disabled for future service and on the other hand, he vigorously pursued his case for his reinstatement.
3. I have heard the learned counsel of both the parties and also perused the relevant record. The appellant has filed his affidavit-in-evidence (Page 79) and on behalf of the Respondents/Management, their Labour Officer Muhammad Jaffer has filed his affidavit-in- evidence.
4. The first point of controversy between the, parties is whether the appellant was a workman.
Appellant's own case is that he joined the Respondent Mills as Operator but according to the respondents he was subsequently promoted as Jobber and therefore, he ceased to be a workman by the time of his dismissal from service. Though the appellant has not denied his promotion as Jobber, yet the stand taken by him clearly indicates that even after his promotion his status as workman remained unchanged. In view of his such plea the burden was heavily cast on respondents to prove that the appellant had ceased to be workman after his promotion as Jobber.
It is a settled law that neither designation of the post held by person nor emoluments drawn by him for that post are the determining factors to decide the status of the person as workman. He is identified as workman by the job he is performing. As such the appellant's mere promotion as Jobber was not enough to hold that he was not a workman. In the reply statement filed by the respondents there is no indication as to the type of work the appellant was performing as a Jobber.
No such question has been put to the appellant even in his cross-examination, nor the respondents' only witness Muhammad Jaffer has stated in his affidavit-in-evidence that as a Jobber the appellant was performing such functions which could not place him in the category of workman. Moreover, the respondents have not produced any Job Description of the appellant working as a Jobber. On the contrary Mr. Muhammad Jaffer has made cerain significant admissions that the appellant was subordinate of Spinning Master and Technical Manager and he used to act according to their instruction. These admissions would show the appellant as depending upon some one else for his work (workman) i,e, taking instructions from aforesaid two Officers. Muhammad Jaffer was admittedly employed as Labour Officer by the Respondents/Management and hence highly interested witness. Therefore, anything said by him against the appellant would have to be carefully weighed before placing reliance on it. It was he who had ex parte enquiry against the appellant and it was on his report that appellant was dismissed from service. In these circumstances I cannot persuade myself to believe his statement for purpose of giving a lie to what the appellant has said with regard to the manner in which the enquiry was conducted by him and now he was excluded from the enquiry.
5. The appellants' learned counsel invited my reference to three documents; namely, second show-causae notice, dated 19-8-1997 (Page 39 appeal file), Enquiry Report (E-1 page 41 appeal file) and order of dismissal (page 43 appeal file) which clearly indicate that appellant was held guilty of misconduct punishable under Standing Orders Ordinance, 1968. Therefore, the learned counsel submitted that since the documents came from Respondents/Establishment themselves, it was proved beyond doubt that even the Respondents/Management considered the appellant as workman. In view of above discussion I hold the appellant as workman at the time of his dismissal and as such I cannot agree with the finding of the learned lower Court in this regard which is accordingly set aside.
6. The other point for determination is very crucial in that it would decide the fate of the case. The point is whether the appellant's dismissal order was sustainable? Admittedly it was passed as a result of domestic enquiry. It is pointed out above that the enquiry was conducted by the Labour Officer of Respondents/Management who was highly interested witness. There were allegations and counter-allegations as regards the fairness of the enquiry. But one thing was clear from the record that it was held ex parte, in absence of the appellant. According to Enquiry Officer though more than one opportunity was given to the appellant for his participation in the enquiry proceedings, yet he did not care to attend the same. On the other hand the appellant's allegations are that despite his presence and availability at the site of the enquiry, he was deliberately not called for taking part in the enquiry proceedings. I have given due thought to these conflicting versions of both the parties as regards the appellants' participation in the enquiry proceedings. I have already held in earlier paragraphs of this judgment that it appeared to me that the statement of Enquiry Officer who was also Labour Officer of Respondents/Management and hence highly interested witness was not reliable. As such the enquiry c held by such witness particularly in absence of the appellant could not be made a safe basis for dismissal of the appellant.
Consequently the appellants' dismissal founded on such enquiry was not sustainable. Therefore, the order of dismissal is hereby set aside. On coming into force of such order, the appellant would stand restored and reinstated in service. Since the enquiry was held ex parte, on appellants' reinstatement in service I would have ordered fresh enquiry against him by an independent Enquiry Officer, providing reasonable opportunity to the appellant for participating in the enquiry proceedings. But it has come on record that the duly constituted Medical Board has already declared the appellant to be unfit for further service as in the opinion of the Board he has completely and permanently disabled for service. In the wake of such findings of the Board, the Respondents/Management shall take necessary step for retirement of the appellant from service.
On his retirement he shall be paid not only the back-benefits becoming due to him .On setting aside of his dismissal and consequent reinstatement in service but he shall also be paid additional monetary benefits in the shape of Group Insurance, gratuity and other benefits accruing to him on his retirement.
' The judgment is announced accordingly.