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Appepls Nos. KAR‑279 to 285 of 1981, heard on 30th July, 1981.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑
‑‑ S. 2 (i) & S. O. 12 (3)‑Termination of service‑Grievance petition before Labour Court‑Maintainable by a workman only Person whether or not a workman‑Determining factor: Nature of duties‑Petition against termination of service pressed on plea of petitioners being required to do also manual work of loading and unloading and watering plants and lawn grass Petitions dismissed by Labour Court without opportunity of evidence or rebuttal in respect of such duties merely on ground that watchman is not a "workman"‑.Order of Labour Court, in circumstances, set aside by Labour Appellate Tribunal and case remanded for evidence and findings on particular plea with regard to nature of duties‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 33.
Chairman Brooke, Bond (Pak.) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond, Rawalpindi P L D 1969 Lab. 721 rel.
F. M. Azad for Appellants.
Samiullah Khan for Respondent.
Date of hearing: 30th July, 1981.
These 7 appeals are directed against separate, but practically identical decisions of the learned 3rd Labour Court given on 13th May, 1981, dismissing the grievance petitions of the 7 appellants against the termination of their services on the ground that they were Watchmen and hence not entitled to file or maintain grievance petitions under clause (3) of Standing Order 12 read with section 25‑A, I. R. O. These decisions are based on the decisions of this Tribunal in the cases of Saeed Lal Khan v. Rex Talkies Ltd., decided on 14th May, 1980 and the other 3 cases referred to in the‑ decision of the learned Labour Court.
2. I have heard Mr. F. M. Azad, the learned representative of the appellants, and Mr. Samiullah Khan, who appeared for the respondents.
3. Mr. F. M. Azad while not disputing the position that a watch man, as held by this Tribunal, does not fall within the definition of workman for the purposes of the Standing Orders, contended that besides the duties of a watchman, the appellants were required to. perform other duties, involving manual work and that these duties have been detailed in the grievance petitions filed by the appellants. These alleged duties include‑
(a) helping to load and unload goods and material into and from the trucks and the vans; and
(b) watering plants and lawn grass.
4. Mr. Samiullah Khan for the respondent establishment, on the other hand strongly disputed the claim of the appellants that they were employed or required to do any manual work particularly the type of work mentioned in (a) and (b) above, and invited my attention to paragraphs 13 to 16 of the reply statement of the respondents, where it has been categorically denied that the duties referred to in the said paragraph were being performed by the appellant. Mr. Samiullah Khan also relied upon the grievance notices given by the appellant where no claim has been made by them that they were employed or required to perform manual duties.
5. The important point, however, in these appeals is that a plea having been raised by the appellants that they were required or employed to do, in addition to their duties as Watchmen, duties which involved manual work, the learned Labour Court should have given an opportunity to the appellants to lead evidence in support of their plea and also to the respondents to rebut the claim of the appellants. This has not been done.
6. I would, accordingly, set aside the impugned decision of the learned Labour Court and remand all the 7 cases back to it for giving an opportunity to the appellants to lead evidence in support of their claim that they were employed or required to do manual duties as also opportunity to the respondents to lead evidence in rebuttal, and to pas fresh orders in the light of the evidence brought on record. In coming to a decision on this issue, the learned Labour Court should bear in mind the following observations made by a Division Bench of the erstwhile High Court of West Pakistan in the case of Chairman, Brooke Bond (Pak.), Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond, Rawalpindi (P L D 1969 Lah. 721), for determining whether a particular employee was a workman for the purposes of the Standing Orders:‑
"The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, be cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him."
Appeal accepted.
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