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Appeal No. 181 of 1974, decided on 13th April 1975.

‑--‑ S. 25‑A read with Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15‑‑Re‑instatement‑Wearing, of Union badge and photograph on uniform by Hotel employee while performing duty‑Does not amount to misconduct‑Calling for punishment of dismissal‑Order terminating services of such workman set aside and workman directed to be re‑instated.

----S. 2(xxviii) and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)‑"Workman-- Low‑paid employee of Hotel performing duty of opening and closing main door for customers and also calling drivers of customers‑Such em ployee, held, a "workman" within meaning of both Ordinances.

Jasmine Cotton and Silk Mills, Karachi v. Shujaat All 1974 P L C Note 28 at p. 17 and Union Karkunne Brooke Bond v. Brooke Bond Pakistan Ltd. 1974 PLC 491 ref.

Appellant in person.

Wasim Sajjad for Respondent.

Ghulam Gilani appellant was employed as Doorman by the Management of the Hotel Intercontinental, Lahore, hereinafter referred to as the respondent. The services of the appellant were terminated on 11th December 1973 on the ground that he was while performing duty wearing a badge and photograph on his uniform in an unauthorised manner on 26th October 1973. He was asked to remove the badge etc. from his uniform but he failed to do so.

2. The appellant challenged his order of dismissal and prayed for re‑instatement before the learned Junior Labour Court No. 2, Lahore by way of an application under section 25‑Aaof the Industrial Relations Ordinance.

3. His application was resisted by the respondent who pleaded inter alia that the appellant was not a workman and that his termination was ordered after duly observing the formalities prescribed by law and after instituting an independent enquiry. The learned lower Court after considering the parties evidence concluded that the appellant was not a workman although his dismissal from service in the circumstances of the case was not called for. The application of the appellant was consequently dismissed on 20th April 1974.

4, On 10th July 1974 the appellant filed the under consideration appeal in this Court. He has contended that the lower Court had erred in holding that he was not a workman: In the memorandum of appeal at the end a note is recorded to the effect that the appellant applied for a certified copy of the impugned order on 25th April 1974 but the same was delivered to him on 2nd July 1974.

5. Subsequently on 4th February 1975 the appellant filed an application under section 5 of the Limitation Act praying for condonation of delay on the ground that he applied on 24th April 1974 for the supply of the certified copy of the impugned order in the copy branch of the District Court but the Presiding Officer of the Junior Labour Court did not send the records of the case to the copy branch. The appellant therefore approached the Junior Labour Court concerned and the copy was delivered to him on 3rd July 1974. Accord ing to the copy of the judgment of the impugned order, which has been attached, with the memorandum of appeal it purports to have been delivered to the appellant on 3rd July 1974. It is, however, not disclosed as to when the appellant applied for obtaining this copy. The appellant has filed his affidavit in support of contentions made in the application for condon ation of delay. There is of course counter‑affidavit.

6. The respondent has opposed the appellant's application for condon ation of delay vehemently. Keeping in view the depositions the appellant made in his affidavit and the entire background regarding the delivery of copy of the impugned order to him on 3rd July 1974 I find that in the peculiar circumstances of the case he is entitled to the condonation of delay.

7. As regards the merits of the case, I have carefully gone through the evidence produced by the parties before the learned lower Court and the learned counsel for the parties have also been heard at a considerable length. The respondent has questioned the maintainability of the appellant's application under section 25‑A of the I. R. O. on the ground that the appellant was not a workman. The appellant has stated that he was posted as Doorman. He used to open and close the door whenever any customer entered the hotel or came out of it. He also used to call a driver when a customer wanted him to do so. He admitted in the cross examination that the door was revolving one. It used to revolve when anybody entered or came out of it. He has however also stated that there was another door which used to be manually worked by him. No evidence has been led in rebuttal. This is a common ground between the parties that the appellant was not an employee. He was a low paid employee performing duty on the main door. He used to open and close the door for customers. He also called drivers of the customer car as the main door. He would therefore appear to be a workman within the meaning of the I. R. O. as well as those of Standing Orders Ordinance, 1968. In Yasmin Cotton & Silk Mills, Karachi v. Shujaat All (1974 P L C Note 28 at p. 17) the Sind Labour Appellate Tribunal has held that it was a question of fact as to whether a person was not a workman. Onus of proof to the contrary was upon the management and in the absence of such proof presumption would rise in favour of workman. Similar view was taken in Union Karkunane Brooke Bond v. Brooke Bond Pakistan Ltd. (1976 P L C 491). Reliance on behalf of the respondent has been placed on 1966 P L C 240 and P L D 1968 ( ) 717 but these authorities are distinguishable on facts.

8, So far as the question of guilt of the appellant is concerned he admittedly was wearing the Union badge and a photograph on his uniform while performing duty on 26th October 1973 he was asked to remove this badge. He however failed to do so. He was charge‑sheeted. Mr. Mushtaq Ahmad Hashmi, Asstt Personal Manager conducted domestic enquiry and held him guilty. The appellant was ultimately dismissed from service. The lapses on the part of the wearing the union badge and a photograph on the uniform while performing duty would certainly not amount to a misconduct calling for the punishment of dismissal in accordance with the provisions of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. His default at the most amounted to disregard or disobedience of rules or orders o careless working. For such a minor lapse the extreme penalty of dismissal was not called for as has been held by the learned lower Court.

9, In the light of what has been said above, I accept the appeal, set aside the impugned order and direct the re‑instatement of the appellant. In view of his lapse of wearing badge and photograph in an unauthorised manner or his uniform while performing duty be is not allowed the back benefits.

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