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Writ Petition No. 5951 of 1981, decided on 17th January, 1983.

‑‑S. 25‑A and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S. 2 (i) and S. 12 (3) 40 as amended vide Labour Laws (Amendment) Ordinance (IX of 1972)‑‑Grievance petition against termination of service in violation .of S. O 12 (3) of West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968‑Maintainable only when petitioner a workman as defined under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not under Industrial Relations Ordinance, 1969 Security Guard‑Not performing any skilled or unskilled manual work‑Not a workman under West Pakistan Industrial and Commercial Employment (Stan4ing Orders) Ordinance, 1968 though covered by definition of "Workman" under Industrial Relations Ordinance, 1969 ‑Not entitled to grievance petition under S. 25‑A of Industrial Relations Ordinance, 1969 against termination of service.

Shahzar Khan v. Sind Labour Court No 4, Karachi and others 1977 S C M R 103 and Rehmat Ali v. The Security Papers Limited and another P L D 1982 Kar. 913 rel.

Hafeez Ahmad for Petitioner.

Nemo for Respondent No. 1.

Altaf Hussain for Respondent. No. 2.

Dates of hearing : 24th and 25th October, 1982.

The petitioner was employed as a Security Guard by the Pakistan Engineering Company. On 14‑3‑1975, he was retired from service, on the ground that he was found medically unfit, for performance of his duties as a Security Guard. He challenged this order through a petition under section 25‑A of the I R.O. The Labour Court took the view that the petitioner should have been given an opportunity to get himself examined by Eye Specialist to establish that he did not suffer from poor eye‑sight which was the cause of his retirement. Thus by order dated 9‑5‑1977, the learned Labour Court allowed the petition and directed the respondent to re‑instate the petitioner.

2. Against this order, the respondent preferred an appeal and raised the plea that a Security Guard/Chowkidar is not covered by the definition of the term "workman" given in section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance 1968 and, therefore, the respondents' petition under section 25‑A was not maintain able. The learned Punjab Labour Appellate Tribunal upheld this argument, accepted the respondent's appeal and dismissed the gievance petition filed by the petitioner. He has now assailed the validity of the Tribunal's order dated 9‑12‑1981 through this writ petition.

3. I have heard the learned counsel for the parties and examined the available record It has been argued on behalf of the, petitioner that for sustenance of his petition, under section 25‑A, he has only to show that he falls within the definition of "worker and workman" as embodied in section 2 (xxviii) of the I.R O. In the submission of the petitioner's learned counsel this definition is quite exhaustive and fully covers the Security Guard/Chowkidar. In support of his contentions, the learned counsel heavily relied on Shahzar Khan v. Sind Labour Court No. 4, Karachi and others (1977 S C M R 103) and Rehmat Ali v. The Security Papers Limited and another (P L D 1982 Kar. 913).

4. The respondent's learned counsel supported the impugned orders and urged that under Ordinance IX of 1972, Standing Order 18 was deleted and Standing Order 12 amended ; as a result of this amendment section 25‑A of the I.R.O. virtually stood incorporated in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He went on to argue, that for maintainability of the petitioner's grievance petition, the definition of the "workman" given in the Ordinance, 1968, is alone relevant and unless he brings his case within the ambit of this definition, his grievance cannot be adjudicated upon by the Labour Court. He distinguished both the precedents, relied upon by the peti tioner, and submitted that in these cases the Chowkidar was held as a "workman", on the basis of the definition given in the I.R.O. and that the effect of the changes brought about by Ordinance IX of 1972 was not placed before the Courts.

4. I find force in the submissions of the respondent's learned counsel. It is to be seen, that section 34 of the I.R.O. was amended by section 22 of Ordinance XIX of 1973 and word "workman" deleted therefrom. Consequently, the remedy before the Labour Court provided by this section, for enforcemcnt of any right, guaranteed or secured under any law, or any award or settlement, now remains available only to the collective bargaining agent and the employer. Amongst others, Ordinance IX of 1972, brought three important changes in the Labour laws. Section 25‑A was added to the I.R.O., Standing Order 18 was deleted and Standing Order 12 drastically amended. The Standing Order 18 laid down the procedure for making a complaint by a workman, to the Industrial Court, under Ordinance, 1968. The vacuum caused by its deletion was, however, filled in by incorporating in, sub‑para. 3 of the amended Standing Order 12 :‑

" .. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they a apply to the redress of an individual grievance."

As borne out from the order of the Labour Court, the petitioner came before it, for the enforcement of the right guaranteed to him by Ordi nance 1968. Under section 25‑A of the I.R.O. read with Standing Order 12, for sustenance of the petition, complaining of violation of such rights, he was bound to prove his status as a "workman" within the meaning of section 2 (i) of the Ordinance, 1968 reproduced below:

" workman' any persons employed in any industrial or commercial establishment to do any skilled or unskilled, manual, or clerical work for hire or reward."

5. The petitioner has not brought any material on the record showing that he performed any skilled or unskilled manual work. On the contrary, the impugned order suggests that no such duty was discharged by him. He is, therefore, not covered by the definition of workman', found in section 2 (i) ibid. In this view of the matter, his petition under section 25‑A was not competent.

6. No doubt the petitioner qualifies to be a "worker and workman under section 2 (xxviii) of the I R.O. But the grievance brought by him: before the Labour Court, was the one under Ordinance, 1968, which embodies a specific provision i.e sub‑para 3 of Standing Order 12, for redress of such grievance. Thus unless the petitioner fulfilled the requirements of section 2 (i) of the said Ordinance, his being a "worker and workman" under the I.R.O. is‑not of any avail to him.

7. As regards the two precedents cited by his learned counsel, in Shahzar Khan's case, a Chowkidar was held to be a "workman" in terms of section 2 (xxviii) of the I.R.O. But the amendments effected in the Labour laws by virtue of Ordinance IX of 1972, were not brought to the notice of the Supreme Court. These amendments have a direct bearing on the petitioner's case. This judgment, therefore, I may say, and say so with respect, does not furnish a binding precedent for the case in hand. In the Karachi judgment, while examining the applicability of section 2 (i) of the Ordinance, it has been laid down :‑

" The Court will have to determine the nature of duties. If a Chowkidar or a Security Guard performs any of the duties of the nature referred to in the definition, he will be covered by the definition "

As already observed, there is nothing on this file, as to the nature of the petitioner's duties. Thus this ruling as well, cannot advance his cause.

8. For the foregoing reasons, the order passed by the Punjab Labour Appellate Tribunal, is upheld and this writ petition dismissed but with no order as to costs.

Petition dismissed.

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