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Appeal No. MI‑409 Punjab of 1981, decided on 20th October, 1982.

West Pakistan

---S. 2 (f) & (i)‑Employee‑Whether or not a workman‑Employer -Whether or not an industrial establishment‑Not purely legal question‑Depending upon facts to be proved on evidence‑Points not raised in written statement in reply to grievance petition before Labour Court‑Sought to be raised in appeal Labour Appellate before Tribunal‑In absence of any evidence on such points same not allowed to be raised‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

1980 P L C 426 and 1980 P L C 622 ref.

Allah Wasaya Malik for Appellant.

H.R. Haider for Respondent.

Date of hearing : 4th October, 1982.

In this appeal the decision dated 18th June, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad has been chal lenged, whereby the grievance petitions of the respondent was accepted and he was directed to be re‑instated with back benefits.

2. The respondent was a Chowkidar/peon appointed in 1976. His services were terminated on 9‑10‑1980 on account of weak eye‑sight, weak ness, old age and inefficiency and that he had obtained appointment by misrepresentation stating that he was an ex‑serviceman. Admittedly, no show‑cause notice was given and no enquiry was held.

3. It has been argued by the learned counsel for the appellant that inefficiency is not a misconduct, therefore, giving of show‑cause notice and making of enquiry were not necessary. No doubt, inefficiency is not a misconduct according to Standing Order 15 (i) (ii) (d) of Standing Orders Ordinance, 1968, but the allegation that the respondent had secured his appointment by misrepresentation stating that he was ex‑serviceman, was a misconduct and, therefore, giving of show‑cause notice, making of enquiry and giving of second show‑cause notice were necessary. According to paragraph (5) of Standing Order 42, the services cannot be .terminated on the ground of misconduct, otherwise than in the manned prescribed in Standing Order 15, therefore, giving of show‑cause notice and making of enquiry were necessary.

4. Learned counsel for the appellant has raised two points, which were not admittedly raised in the written statement. He has argued that the respondent being a Chowkidar is not a workman and that the Town Committee is not an industry. He says that these are legal points, there fore, raising of these points in the written statement was not necessary anti even in the appeal these points can be stressed. I cannot agree with him that these are purely legal points. The question .of workman is always decided according to the nature of duties. In the same manner whether an establishment is or is not an industry can be decided upon the evidence about its functions. If these points had been raised in the written statement and the parties had led evidence on these points, only then it could be seen and decided whether in view of the evidence the respondent was a workman and the appellant an industry or not. Merely because the designation of the respondent is given as Chowkidar/peon is not sufficient to say that he is not covered by the definition of workman given in section 2 (i) of Standing Orders Ordinance, 1968. In some cases Chowkidar is not covered by the definition of workman, whereas in other cases the position is the reverse. In the same manner a peon may be a workman, or may not be a workman and the matter depends upon the nature of duties. If a Chowkidar and a peon have not to do any manual work, they are not work men but if their main duties are manual, they are covered by the definition of workmen. On the point of industry, the learned counsel for the appel lant has cited 1980 P L C 426. It has been observed :‑

"The petitioner did not indulge in any business, trade, manufacture, etc. nor its object was to produce and distribute goods. In this view of the matter, the petitioner did not fall under the definition of "employer" in relation to this Ordinance. Similarly, Sher Mohammad did not fall under the .definition of "workman" and thus the Ordinance had no application in the instant case."

From the above observations it appears that there was evidence before the Honourable Judge on the basis of which he observed that the District Council, Sargodha, which was petitioner before him, did not indulge in any business, trade, manufacture, etc. but in the present case since this point was not raised in the written statement, no evidence could come on the record. The functions of District Council, Sargodha may be different from the Town Committee, Jandanwala, therefore, the opinion expressed in respect of District Council, Sargodha‑cannot be applied in the present case. On the point of workman learned. counsel relies upon 1980 P L C 622 10. No doubt it has been observed that it is the duty of the person coming to the Labour Court to show that he is a workman but that question would arise only if an objection has beet raised by the employer that the employee is not a workman. Without evidence it cannot be decided whether a parti cular employee is or is not covered by the definition of workman.

5. Since no show‑cause notice was given and no enquiry was made on the point that the respondent had by fraud secured his employment, the order of removal from service was rightly set aside by the Labour Court. There is no force in the appeal, which is dismissed.

Appeal dismissed.

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