DECISION ' This appeal has been filed by Messrs Bengal Fibre Industries Limited (hereinafter referred to as respondents Industries) against the decision, dated 20th January, 2001 of Sindh Labour Court No,2, Karachi whereby the grievance petition of the applicant Saghir Ahmed was allowed with his reinstatement and payment of back benefits. The case of the applicant was that he was employed as permanent workman in the Establishment of respondents Industries on 17-5-1983. Since then he had been performing his duties to the satisfaction of his superiors. Since the applicant was General Secretary of the Workers Trade Union in the said Industry, his trade union activities made the Management unhappy with him. Both the C.B.A. And Management of the respondent Industries worked against the interest of Factory workers and, therefore, they were openly criticised by the applicant. Thereupon the Management tried to silence the applicant by paying him heavy amount as illegal gratification but somehow he did not come round. He was, therefore, given threats of victimization. Ultimately on 17-5-1995 a charge-sheet was, issued to the applicant containing fabricated charges. Their own man A.G.A. Rehm Bengali who was neither occupier nor Factory Manager was appointed as Enquiry Officer. The enquiry conducted by him was neither fair nor independent and he violated rule of natural justice so much as that applicant was not allowed to produce his defence nor was he allowed to cross-examine the prosecution witnesses. He was not given second show-cause notice nor was he given the chance of personal hearing. Even some statements were recorded behind his back. As a result of the said enquiry he was dismissed from service on 19-7-1995' and such Letter of Dismissal was issued to him. This Order was passed also by Mr. A.G.A. Rehman Bengali. On 25-9-1995 the applicant served a grievance notice by post. He then filed grievance petition with the aforesaid result..
2. In reply statement some Legal Objections have been raised inasmuch as that applicant was not a workman nor was he dismissed from service in connection with any Industrial Dispute. According to the version of the respondents Industry he was supervisor of Twisting Department, supervising the work of all the workers of that Department. Their other Legal Objection was that as required by law no grievance notice had ever been served on the Management of the respondents Industry. His duties were neither, manual nor clerical. Furthermore, he failed to submit his reply to the charge- sheet. It is further stated by them that charge-sheet was issued as the applicant was found sleeping during his duty hours. It is denied in the Reply Statement that applicant was not allowed to examine defence witness but in fact he was given full opportunity to defend himself but he had no witnesses in his defence. Even the prosecution witnesses were examined in his presence but it is incorrect to say that he was not allowed to cross-examine them. As regards second show-cause notice, it is stated that there was no provision for the said Notice, nor there was any practice of giving personal hearing in the respondents' Establishment. It is vehemently denied that any witness was examined in absence of the applicant.
3. I heard the arguments of the learned counsel of both the parties and have also perused the relevant documents available in the case file. I have also considered the findings arrived at by the learned Labour Court. In the light of reasoning given by the said (sic). It would appear that two important issues were to be decided for disposal of this appeal. The foremost issue was about the status of the applicant i,e, he was a workman or not. It is now well-settled that the burden to prove his status is initially cast on the workman himself (the applicant). The applicant has stated in both his application under section 25-A, I.R.O., as well as his affidavit-in-evidence that he was appointed and had been working throughout his service as permanent worker in the respondents'
Establishment. According to him he had no power of supervisor nor had he any control over the workers. He was nevertheless performing his duties as skilled worker. The Chart of his duties produced by him is at Annexure-O (page 69). The perusal of this Chart discloses the following duties to be discharged by the applicant:--
(a) Move the trolly.
(b) Load and unload trolly.
(c) Take the finished product to the Packing Section;
(d) Bring the Robins (sic) from the Store.
(e) Remove the products from the Winding Machines. (f) Operate the Winding Machine.
(g) Clean the Winding Machines.
(h) Mark the attendance.
' All these duties performed by the applicant being manual in nature obviously put him in the category of a workman. The learned counsel for the respondents' Establishment has cited one authority of Supreme Court reported as 1991 SCM R 2300 which in my opinion is appropriately applicable to the point under consideration. It was held:-- "Witness is not cross-examined on material part of evidence. Inference would be that the truth of the same was accepted by the other side."
' Here too the applicant was not cross-examined with regard to Chart of his duties to be performed by him and produced as stated above. Consequently there was no doubt that he was performing the duties mentioned in the Chart. The only question put to him in regard to the Chart was that it was not issued by the Management. Here the question would arise if the Management was under obligation to issue such Chart. If not, the applicant who is directly concerned with duties mentioned in the Chart has submitted it himself for convenience of Court's understanding. Therefore, if the Chart was not issued by the Management it did not necessarily mean that the applicant was not performing the duties contained in it. The next question put to the applicant was whether he had no letter in his possession whereby he was directed to work on manual or clerical job, clearly shows that there was no practice in the Management to issue such letters. Consequently the Chart of parties referred to above and produced by the applicant could not be doubted. Even otherwise the Management had nowhere mentioned what duties the applicant was required to perform as "Supervisor". The question arose if he was at all appointed as Supervisor? The applicant's own version is that he was appointed as permanent worker. He is supported by the witness of respondents' Establishment Min. Ahmed. (Page 141). He claims to be notified Factory Manager of the respondents' Establishment. He admits that applicant was appointed as Operator. In the same breath he gives further admission that he had no knowledge of his promotion as Supervisor.
Strangely enough having made the above two admissions he states that applicant was working as Supervisor. The above Statement of the respondents' Management's witness appears to be the result of his confused mind.
3. The applicant also claimed to be General Secretary of Trade Union Establishment in the respondents' Establishment. According to him as the Management and the C.B.A. Were working against the interests of the workers he was constantly criticising their activities for which they were annoyed with him and involved him in a false enquiry. It is also not denied by the respondents'
Establishment that the applicant was a General Secretary of the Trade Union. The aforesaid witness Mian Ahmad who is a responsible Officer of the respondents. Management admits in course of his, cross-examination that he has no knowledge that applicant was a General Secretary of the Union.
This was obviously absurd. He appears to have avoided the making of an admission about the applicant's being General Secretary of the Trade Union. I have no doubt in mind that he was a General Secretary. Consequently unless he had the status of workman, he could not be elected as General Secretary. This also supports the applicant's version with regard to his status of being worker.
5. The other argument put forth on behalf of the applicant was that unless he was a workman the enquiry which was the result of his removal from service could not have been held under Standing Orders Ordinance, 1968. Since he was a workman his "employer took action against him under the provisions of the said Ordinance; such as by serving a show-cause notice upon him, holding an enquiry and terminating his services. As such it was justified in presuming the applicant to be covered within the definition of the aforesaid Ordinance. This is what happened in the case reported as PLD 1982 Karachi 913. In view of the above authority unless the applicant was workman the Standing Order's Ordinance would not have applied to him nor would he have been removed from service in consequence of enquiry held under the said Ordinance.
6. Apart from the above the applicant has grievance against the enquiry proceedings because according to him Enquiry Officer was not fair minded. He was neither occupier nor Factory Manager. His further allegation was that charge-sheet was bogus and fabricated. Applicant was not provided opportunity to produce defence witness or cross-examine prosecution witnesses. As such the Establishment entirely failed to prove any charge against him. As regard such allegations about enquiry and the matters connected with it the management took no step to prove that applicant's allegations in that regard were totally false excepting relying on their mere denial of his allegations. Moreover, the respondents' witness made a clear admission in cross-examination that no eye-witness of the incident was produced before him during the enquiry proceedings.
7. The perusal of the judgment of the Lower Court shows that the said Court has taken a correct view that designation or quantum of emoluments is no criterion to determine the status of the employee being worker or not.
8. The other objection taken by the respondents Establishment was that mandatory notice was not served on them before filing the grievance petition. In reply to this allegation the applicant has stated in his main petition that grievance notice was sent by post on correct address of the respondent which was delivered by the area postman but after putting the signature on A/D Slip, the -ame were crossed and they refused to receive it. He has produced original postal envelope with A/D Slip on record. The remarks of postman are available on the Postal Envelope which are self-explanatory. The Postal Envelope and A/D slips bear the Seal and Stamp of the Post Office. The original Postal Receipts are also produced. I have examined these documents carefully and have come to the conclusion that necessary requirement of service of notice is fulfilled. The applicant could not help it if the slips once signed were crossed over and the respondents' Management had ultimately refused to take the notice. In the circumstances explained above the notice was held to have been served on the Management and consequently the mandatory requirement of service of notice prior to filing of grievances petition was complied with. The applicant may not be allowed to suffer only because the respondents' Management made subsequent trick of crossing the signatures and refusing to receive the notice.
For the above reasons I endorse the judgment of the learned lower Court and dismiss the appeal.