1. ' MUHAMMAD MOOSA K. LEGHARI, J.---The petitioners have challenged the two decisions dated 19- 4-2001 and 30-4-2001 of learned Sindh Appellate Tribunal at Karachi delivered in two different appeals viz. Appeal No,Hyd-155 of 1999 and Appeal No,Hyd-21 of 1999 whereby the appeals filed by the respondent No,1 were allowed and the respective orders dated 28-8-1999 and 19-2-1999 passed by the Sindh Labour Court No,VI at Hyderabad in Applications No,512 of 1997 and No,544 of 1997 were set aside.
2. ' Both the petitions were fixed for Katcha Peshi but since the learned counsel for respondent No,1 as well as learned Addl. A.-G. Were present on pre-admission notice, therefore, with the consent of all the learned counsel, we have finally heard these petitions and the same are being disposed of at Katcha Peshi stage.
3. ' Appeals were allowed on the point that the petitioners were not covered by the definition of "workman" as provided under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and did not fall within the meaning of "worker" under the Industrial Relations Ordinance, 1969 and thus were not competent to invoke the jurisdcition of the Labour Court. Since the common question was involved both the petitions were heard together and are being disposed of by this single judgment.
4. ' Facts as narrated in C.P. No,528 of 2001 are that the petitioner was employee of respondent No,1 and was working on permanent basis in capacity of Air-Conditioner Foreman since 13-2-1996. The petitioner was doing manual work with his own hands and that he was discharging his duties with due devotion and never gave any chance of complaint with regard to his work and conduct. On 14- 4-1997 the petitioner was stopped from performing his duty without assigning any reason. Despite insistence the petitioner was not provided any order in writing and was illegally terminated.
5. Petitioner accordingly served a grievance notice dated 12-7-1997 as provided under section 25-A of the I.R.O. 1969 but the same was not responded. The petitioner eventually filed a Grievance Petition No,512 of 1997 before the learned Labour Court.
6. ' In the written statement filed by the respondent, inter alia, a plea was taken that the petitioner was not a workman and thus was not competent to maintain grievance petition before the Labour Court. Both parties led their evidence.
7. ' On the basis of evidence brought on record learned Labour Court inter alia held the applicant/petitioner to be "workman" and upon consideration of merits of the case allowed the grievance petition and directed the respondent No,1 to re-instate the petitioner in service. Order of the learned Labour Court was assailed before the Sindh Labour Appellate Tribunal which on reappraisal of evidence reversed the finding of the learned Labour Court vide the decision impugned in this petition.
8. ' The facts forming background of Petition No,529 of 2001 are that the petitioner was permanent employee as Foreman with respondent No, 1 . According to the pleadings the petitioner was doing technical work with his own hands such as repairing the machines, fitting spare parts therein, removing the defects by applying physical and mental toil and had no powers of hire and fire. The petitioner was performing his duty in a satisfactory manner, giving no chance of complaint to his employers. Petitioner was, however, served with a show-cause notice dated 10-10-1997 whereby certain allegations were levelled against him. On the basis of such allegations, the petitioner was dismissed from service. The petitioner served a grievance notice under section 25-A of the I.R.O., 1969 but his grievance was not rederessed. He, therefore, filed the grievance petition with the learned Sindh Labour Court No,VI, Hyderabad. The said grievance petition was defended by respondent No,1 and written statement was filed. Main plea which was taken by the respondent before the learned Labour Court was that the petitioner was not covered by the definition of "workman", as such he was not entitled to maintain the grievance petition. Parties led their respective evidence before learned Labour Court.
9. ' On the basis of evidence so adduced the learned Labour Court No,VI, Hyderabad allowed the grievance petition of the petitioner vide order dated 19-4-1999 and directed the respondent No,1 to re-instate the petitioner in service with full back benefits. Order of the learned Labour Court was impugned before the learned Sindh Labour Appellate Tribunal in Appeal No,Hyd-21 of 1999. Learned Sindh Labour Appellate Tribunal after hearing the parties allowed the appeal, reversed the findings and set aside the order passed by the learned Labour Court No,VI, Hyderabad. Hence this petition.
10. ' We have heard Mr. Mehmood Hussain Siddiqui, learned counsel for the petitioner, Mr. Abdul Ghani Khan, learned counsel for the respondent No,1 and Mr. Masood A. Noorani, learned Additional Advocate-General Sindh, for official respondents.
11. ' It was contended by the learned counsel for the petitioners that neither the designation of an employee nor quantum of salary/wages were material for the purpose of deciding the status of the petitioners. It was only the nature of duties being performed by an employee by which it could be determined as to whether a particular employee was covered under the definition of "workman" as provided under the West Pakistan Industrial and Commercial Employment (Standing Orders)
12. Ordinance, 1968 or the definition of "worker" as contained under the Industrial Relations Ordinance, 1969. It was contended that the petitioners have led sufficient evidence to show that they were doing manual work and that they were not performing duties of supervisory and managerial nature and that the petitioners had no power of hire and fire. It was argued that the evidence with regard to manual duties being performed by the two petitioners had gone unchallenged. It was thus contended that the impugned decisions of the learned Tribunal were patently illegal, without jurisdiction and contrary to the evidence on record.
13. ' On the other hand learned counsel appearing for respondent No,1 contended that the onus to prove that a particular person was "workman" would be upon the person claiming the status of a "workman". He argued that burden of proof was not adequately discharged by the petitioners to prove that they did fall within the ambit of a "workman". It was contended that none of the petitioners was performing manual duties. Petitioner Bashir Ahmed was employed as Foreman. He was drawing wages of Rs,7,000 per month and was supervising the work of 8 workers. In respect of petitioner Saeed Ahmed it was submitted that he was drawing salary of Rs,8,400 and was also exercising supervisory powers over his subordinates. It was further submitted that the impugned decisions of the Tribunal were based on correct appreciation of law and facts, while the orders passed by the learned Labour Court were erroneous.
14. ' Mr. Masood A. Noorani, learned Addl. A.-G. Criticised the decisions of the Sindh Labour Appellate Tribunal contending that the same were illegal, and contrary to the evidence. He supported the orders passed by the Labour Court which according to him were well-reasoned, supported by the evidence and in consonance with the settled principles of law.
15. ' We have perused the impugned orders, considered the arguments advanced at the bar and examined the case-law on the subject.
16. ' Under the provisions contained in subsection (1) of section 25-A of the I.R.O., 1969 only a "worker" or "workman" can invoke the jurisdiction of Labour Court for redressal of his grievance in respect of any right guaranteed/secured to him under any law, any award, or any settlement.
17. ' Whereas it is contemplated under clause' (3) of the Standing Order 12 that the services of a "workman" shall not be terminated, nor "workman" shall be removed, retrenched, discharged or dismissed from services except by an order in writing containing the reasons for the action. It further provides that in case a workman is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal he may take action in accordance with the provisions of section 25-A of Industrial Relations Ordinance, 1969, and therefore, the provisions. Of said section shall apply to the redress of an individual grievance. Thus it will be observed that for invoking the jurisdiction of Labour Court the person approaching the Labour Court for redressal of the individual grievance must necessarily fall within the ambit of a workman as provided under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
18. ' In the case of Syed Matloob Hassan v. Broke Bond Pakistan Limited Lahore 1992 SCM R 227 it was observed by their lordships of Supreme. Court as under:-- "For example, if a workman seeks the enforcement of the rights guaranteed under the various provisions of the Standing Order Ordinance, he should also fall within the definition of the workman' given in clause (i) of section 2 of the Ordinance, However, in case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned falls within the definition of 'workman' given in clause (i) of section 2 of the Ordinance and he need not be covered by the definition of the ' workman' and ' worker' given in clause (xxviii) of section 2 of the Industrial Relations Ordinance."
19. ' It will be advantageous to reproduce hereunder the definition of "workman" as contained in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
20. Ordinance, 1968.
21. "Workman means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
22. It is now well-settled that for the purpose of determining the status of a "workman" the deciding factor is neither the designation conferred upon him nor the salary drawn by him. The real test to include or exclude an employee from the ambit of "workman" is the nature of duties being performed by him. If it is proved by leading sufficient evidence that a person is doing manual or clerical work in an industrial or commercial establishment he shall be covered by the definition of workman. Various authorities can be cited on the point. However, reference can be made to the case of Muhammad Sadiq v. Punjab Labour Court No,1, Lahore, PLD 1998 SC 633.
23. ' It is also well-established that initially burden of proving the fact that an employee did fall within the definition of workman lies upon the c employee by producing documentary as well as oral evidence in support of his pleading that he was a workman and was performing the duties of either clerical or manual nature. Number of rulings can be cited in support of the above proposition of law. However, cases of Managing Director Shahi Bottlers (Pvt.) Ltd. v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCM R 488, Abdul Razzaq v. Messrs Ihsan Sons Ltd. And 2 others 1992 SCM R 505, and Ganga R. Madhani v. Standard Bank Ltd. And others 1985 SCM R 1511 can be referred in this context.
24. ' After discussing the legal position, we deem it appropriate to dilate upon the factual aspects of the case.
25. ' Petitioner Bashir Ahmed has pleaded that repairing and cleaning the Air-Conditioner Plants was included in his duties. However, the said assertion of the petitioner was denied in the written statement filed by the respondent No,l, pleading therein that he was drawing pay of Rs,7,000 and was supervising the working of subordinate workers which included one Fitter, one Pipe Fitter, one Assistant Fitter, three Operators and four Helpers and that ten persons were working under him. In his affidavit-in-evidence the petitioner repeated his said assertion that he was manually cleaning and repairing the Air-Conditioner Plants. The petitioner claimed that he was not Incharge of those workers as he could neither charge-sheet them nor grant them leave. However, the petitioner in his cross-examination though denied the suggestion that those 10 workers were working under him, yet voluntarily stated that all of them used to work jointly. On the basis of the above admission learned Labour Appellate Tribunal gave the following findings.
26. "It is a matter of common-sense that when so may workers were working together in the particular section, some or the other of them must have been given the duty of supervising the others' work.
27. Since the respondent was admittedly a Foreman amongst them, the rest of the workers were naturally working under his supervision."
28. ' We are accordingly of the view that the findings arrived at by the learned Sindh Labour Appellate Tribunal were neither illegal nor against the evidence on record. Having arrived at the above conclusion we do not find any justification to interfere with the findings of fact recorded by the learned Appellate Forum.
29. ' So far as the case of petitioner Saeed Ahmed is concerned, the petitioner did not mention the details of his duties in his grievance petition. The respondent No, I in their written statement raised preliminary legal objection to the maintainability of his application before the Labour Court on the ground that the petitioner did not fall within the purview of a "workman", resultantly, Labour Court had no jurisdiction in the matter. However, it seems that in his affidavit-in-evidence the petitioner stated that he was doing manual work, rectifying the defects of machines and that he had no authority to grant leave to any worker. In his cross-examination the petitioner admitted his signature on the attendance register which was separately maintained for officer class. The workers are not required to put their signatures on the attendance register, but are provided tickets and attendance cards as stipulated under West Pakistan Standing Orders Ordinance and Factories Act,.
30. 1934. The petitioner further admitted in his cross-examination that he was neither a member of any union nor had any connection with any association of workman. By operation of law, the employees who are not covered by the definition of "workman" could neither participate in the trade union activities, nor become member of any trade union. These admissions by the petitioner were enough to show that he was nor workman. The petitioner was further found guilty of suppression of facts, and for giving cunning replies in his cross-examination.
31. We have minutely perused the impugned judgments/decisions passed by the learned Labour Appellate Tribunal which are well-reasoned and based on the evidence available on record. No perversity and infirmity, illegal exercise of jurisdcition or lack of jurisdiction was noticed.
32. Consequently we are of the view that no interference with the impugned judgments/decisions is called for. The same are accordingly upheld.
33. ' For the foregoing reasons both the petitions stand dismissed.