1. ' An appeal has been brought by Malik Faqir Muhammad, Contractor. Fauji Colony, Liaqatpur, District Rahimyar Khan, against the order of the Learned Junior Labour Court, Rahimyar khan dated 8th March, 1975, whereby, Bashir Ahmad respondent was ordered to be re-instated in service of appellant Contractor with all the connected benefits. It was alleged on behalf of the respondent that he was employed by the appellant,-vide written contract of service dated 25th August, 1974 wherein certain terms and conditions of his employment were laid down and he was designated as Site Engineer (Construction). According to the respondent he was employed for a minimum period of three month extendable to five years with effect from 25th August 1975 at the monthly salary Rs, 900 and that he was abruptly terminated by the appellant on 4th December, 1974 without any cause, whatsoever, through verbal orders. During the employment he was paid a sum of Rs, 625 through a cheque and was put off for the rest of the outstanding dues till the date of his termination which was affected without any notice in that behalf. The case of the appellant is that the so-called agreement of service was never executed by him and the same was forged by the respondent to oblige toe appellant into a contract of service, that the respondent was employed by him with effect from 25th August, 1974 on oral basis at the monthly salary of Rs, 700 and he has obtained the dues of his remuneration for the period of his service and that he was terminated on the basis of regular notice after a period of three months. It is further maintained that only three days after his employment he committed theft of Rs, 70 from the cash of the appellant and the commission of theft being confessed and the apology being offered by the respondent before the witnesses, he was given the concession of further three months of employment at his own request whereafter he was terminated in view of the expiry of the aforesaid period and for consideration of his frequent engagement in criminal cases in different Courts at Lyallpur.
2. ' The basic question that has arisen to be determined in this case is whether the respondent can be defined as a workman under the provision of the Industrial Relations Ordinance and whether the contract of service relied upon by the respondent was duly proved in the learned lower Court. On both these points, the respondent could not at all give a satisfactory proof. The learned lower Court did not at all go into the question whether the agreement of service Exh. P. A. Was a duly executed document which could be safely acted upon by it to give the full-fledged relief to the respondent.
3. This is a bare fact that the execution of the said document was not only denied by the appellant it was held out by him as a thoroughly forged document. On the second point it is to be noted that the respondent has admitted himself to have been designated as Site Engineer at the monthly salary of Rs, 900 under the so-called contract of service. The functions of the job performed by him as an employee of the appellant have not been mentioned any where on the record of the learned lower Court at the instance of the respondent nor the same are mentioned in the appointment order basically relied upon by him. He contented himself with his self statement in the learned lower Court without any other evidence which was rebutted by five witnesses examined on behalf of the appellant who supported his case as already mentioned. The respondent in the course of arguments has tried to convince me that he used to perform the duties of an overseer by doing skilled labour at the spot required of him to complete the construction works secured on contract by the appellant. I have taken the respondent at his own words and an unable to reconcile myself with the stand taken by him that while being an overseer or a Site Engineer he did not perform managerial functions or at least the supervisory functions on behalf of the appellant while performing his duties whether as a Site Engineer or an Overseer. Needless to mention that he did not speak of his functions in his statement in the learned lower Court nor he could satisfy me during arguments that he could perform either of the aforesaid jobs without managing the inherent functions which the contract of road maintenance called upon the contractor to perform.
4. In other words no line of distinction could be drawn between the functions of the employer and the employee in the present case and on that score the respondent thus fell far short of the definition of a worker giving jurisdiction to the labour Court to determine the dispute. The respondent could move the civil Court if so advised for the redress of his grievance. In the result the impugned order being set aside the appeal is accepted. The file may be consigned.