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Appeal, No: ‑KAR‑349 of 1982, heard on 26th September; 1982.

West Pakistan

‑‑ S. 2 (.i) & S. O. 12 (3)‑"Workman"‑Whether or not an employee a workman‑burden of proof on basis of nature of duties upon employer when such employee proceeded against for mis conduct under provisions of Ordinance‑Security Assistant dismissed for misconduct under S. O. 15 (4)‑List of duties .furnished by him indicating some manual, or clerical work‑No tangible evidence controverting such claim adduced by employer‑Order of Labour Court holding petitioner as not a workman and dismissing grievance petition in circumstances, set aside by Appellate Tribunal and case remanded for decision on merits.

1976 P L C 196 and 1969 P L C 616 ref.

Abdul Aziz v. Sind .Labour Appellate Tribunal C. P. No. D‑204/81 (unreported) rel.

Ali Ahmad for Appellant.

Rafat Usmani for Respondents.

Date of. hearing : 26th September, 1982.

This appeal is' directed against the decision of the learned IIIrd Labour Court, given on 29th July, 1982, dismissing the grievance petition of the appellant, challenging his dismissal from service, on 'the short ground that he is not a. workman for the purposes of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1.968, and hence is not entitled to file and maintain a grievance petition against his dismissal from service,

2. The admitted facts of this case are that in 1980, the appellant was holding the post of .Security Assistant in the respondent‑Company, with the following job specifications :‑

Aspro‑Nicholas (Pakistan) Limited

Job Specification

Job title : Security Assistant .

Responsible to : Personnel Executive

Directly Supervising : Head Watchman and Watchman.

(I ). Scope:

1. To assist the personnel Executive in maintaining the security and safety of the property of the company in accordance with the Security Procedure.

(2) Responsibilities

(1) To supervise Head Watchman and Watchman and prepare their duties schedule and recommend leave.

(2) To check machines, Fans, Air‑conditioners.

(3) Follow up returnable items taken out on permission.

(4) Spot check of Watchman on duty.

(5) Look after Watchman's entitlements lime, tea, sugar, milk, polish, uniforms etc. in accordance with the agreement with the Union. ‑

(6) Screen Visitors.

(.7) Check all the security arrangements lime bubes, torch, locks, keys, etc. and make arrangements for repair replacement etc. as and when necessary.

(8) Maintenance of duplicate keys of all tables, cabinets; doors, canteen, etc. in a special cabinet to be provided for this purpose. .

(9) Make spot checks of incoming and outgoing persons.

(10) To ensure strict compliance of the security procedure.

(11) to maintain and keep all the records uptodate pertaining to security.

(12) Check in coming and outgoing goods and material.

(13) To ensure that no property of the company is taken out without proper authorization.

(14) To handle any other job pertaining to security that may be assigned by the Supervisors from time to time. '

3. It appears that the appellant was involved in an incident on 8th September, 1980 in which it is alleged that the appellant assaulted and beat up S. M, Ilyas, Maintenance Services Assistant. In respect of this incident, a show‑cause notice, dated 10th September, 1980 was served upon the appel lant. He submitted his reply to the said show‑cause notice on 17th September, 1980 but as the same was not found satisfactory a domestic enquiry was ordered against him by the management. The Enquiry Officer, S. Saghirul Islam, found the appellant guilty of the charges levelled against him and accordingly the appellant was dismissed, from service, vide letter, dated 26th January, 1981.

4. The appellant preferred a grievance petition against his dismissal from service before the learned 1Ilrd Labour Court, which dismissed his" grievance petition on the grounds, firstly, that neither the requisite grievance notice had been filed with the grievance petition nor it had been relied upon by the appellant in his grievance petition. and secondly, that the appellant, being a security assistant., was not a workman for the purposes of the Stand ing Orders The appellant preferred an appeal against the. decision of the learned Labour Court. This Tribunal, by its order, dated 31t August, 1981 set aside decision of the learned Labour Court; holding that due grievance notice had been given by the appellant to the respondent‑Company and remanded the case to the learned 1IIrd Labour Court for recording evidence on the point whether the appellant fell within the definition of workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the order of remand this Tribunal specifically referred to the job specification of the appellant and observed that some of the function specified therein seemed to indicate that some sort of clerical work was also implied.

5. On remand, the learned Labour Court recorded the evidence of the appellant as also the statements of S. A. Kalam, Manager of the respondent Company, and Saghirul Islam, who had conducted the domestic enquiry against the appellant. The learned Labour Court has taken the view that the nature of duties which the appellant was required to perform did not involve manual or clerical work. In coming to this decision, the learned Labour Court has relied upon the decision reported in 1976 P L C 196 and 1969 P L C 616. In the former case it has been held by a learned Single Judge of the Karachi High Court that a person belonging to a security staff and performing the functions of a Chowkidar besides supervision other Chowkidars was not a workman under section 2 (i) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, In the latter case a Division Bench of the Lahore High Court has held that the true test for determining whether a person fell within the definition of workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was whether the immediate and substantial part of work for which he was employed involves the performance of manual or clerical work and not the sundry duties whichevere merely incidental to his main work.

6. I have heard Mr. Ali Ahmed, the learned counsel for the appellant, and Mr: Rafat Usmani, Advocate, . who appeared for the respondent Company. The issue whether person belonging to the security staff fell within the definition of workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, has beer considered by the Karachi High Court in 3 recent decisions. In Constitu tional Petition No. 757/80, a Division Bench of the Karachi High Court has held that a Chowkidar simpliciter does not fall within the definition of a workman as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, unless he can show that he was performing any duties which involve the work mentioned in the definition of workman as given in section 2 (i) of the Ordinance. In that case, it was pointed out by their Lordships of the Division Bench that though the petitioner workman had made certain averments as to his duties, he was able to prove the same. In .Constitutional Petition No. 437/80, which was against the decision of this Tribunal holding that a Chowkidar was not a workman falling within the definition in section 2 (i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was held that the petitioner should have been provided an opportunity to prove the nature of his duties and accordingly the case was remanded to this Tribunal to provide an opportunity to the parties to adduce additional evidence to prove the nature of duties of the petitioner.

7. In Constitutional Petition No. D‑204/81 Abdul Aziz v. Sind Labour Appellate Tribunal, decided on 11th March, 1982 a Division Bench of the Karachi High Court observed as follows ;‑

"We are inclined to hold that if an employer takes action under the provisions of the Ordinance against his employee the burden of proof is shifted on him to prove that the employee concerned does not fall within the definition of workman given in the Ordinance though the charge‑sheet was issued; inquiry was held and service was terminated under the provisions of the Ordinance."

8. In the instant case, action was admittedly taken against the appellant under the provisions of the Standing Orders Ordinance. In the show cause notice, dated 10th September, 1980 it is specifically asserted that his, act in causing injuries to his colleague during working hours was an act subversive of discipline under Standing Order 15 (3) (h). The appointment of the enquiry officer and the holding of the domestic inquiry against the appellant were acts in accordance with the provisions of the Standing Orders, particularly Standing Order 15, and the finding of the enquiry officer was that the appellant was guilty of the misconduct with which he had been charged. The dismissal order also speaks of the appellant being found guilty of the act of misconduct for which he had been charged., It is therefore, clear in view of the aforesaid decisions of their Lordships of the Karachi High. Court that the burden of disproving the contention of the appellant that he was a workman under the Ordinance was upon the respondent‑Company. The only evidence which the respondent‑Company ha led in this behalf is of its Manager ;A. S. Kalam. No doubt, in his evidence before the learned Labour Court, he has tried to assert that the appellant was employed in a supervisory capacity and that he was not required to perform any manual or clerical work, but his evidence is of no assistance to the respondent‑Company at least on this issue as he has admitted that at the relevant time he was not in the employment of the respondent‑Company and had joined it in June, 1981, much after the appellant was dismissed from service. There is thus no tangible evidence on the record to controvert the claim of the appellant that his duties involved the performance of manual or clerical work. This claim of the ‑ appellant is supported by the job specification of the appellant. Among the duties which the appellant was required to perform were :‑

(1) To check all the security arrangements, lights, bulbs, torches, locks and keys etc., and make arrangement for repairs, replacement etc. ;

(2) To maintain and keep all the records uptodate pertaining to security ;

(3) .to check incoming and outgoing goods and materials ;

(4) to ensure that no property of the company is taken out without proper authorization ; and

(5) to handle any other job pertaining to security that may be assigned to him by the supervisors from time to time.

9. Mr. Rafat Usmani, the learned counsel for the respondent‑Company, strongly contended that Chowkidars and watchmen do not fall within the definition of workman as given in the West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968. It may be pointed that their Lordships of the Supreme Court in their judgment, dated 19th January, 1979 in Civil Appeal No. K‑6j 1968, have held that Havaldars and Chowkidars in the Watch & Ward Department of the Karachi Port Trust were covered by the definition of the workman given in section 2 (n) of the Industrial Disputes Ordinance, 1959, which definition is similar to the definition of workman given in the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968.

10. The upshot of the above discussion is that I would set aside the order of the learned Labour Court and would remand the case to it for decision on merits.

Case remanded.

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