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--‑‑S. 2 (i) & S.. O. 12 (3)‑Workman‑Termination of service- Chowkidar claiming to be doing besides his duty other manual work of sweeping, dusting and cleaning premises and furniture‑Conten tion 'tot substantiated and found entirely without substance‑Such Chowkidar, held, not a workman hence not entitled to grievance petition‑ before Labour Court against termination of service -Industrial Relations Ordinance (XXIII of 1969), S. 25‑A.

Obaidur Rehman for Appellant.'

S. P. Lodhi, Representative for Respondent.

Date of hearing : 1st February, 1983:

ORDER

This appeal is directed against the decision of the learned First Labour Court, given on 11th December, 1982, allowing the grievance petition of the respondent employee challenging the order terminating his services, and directing the appellant Bank to re‑instate him with full back benefits.

2. The admitted facts of the case are that the respondent was employed as a Chowkidar (Guard) in the appellant Bank and was posted at the Napier Road Branch of the said bank. On 29th October, 1981, he was issued a notice by the bank to show cause why disciplinary action be not taken against him by reason of his involvement in a criminal case in which he had obtained bail. The respondent submitted his explana tion, dated 4th November, 1981, to the said show‑cause notice wherein he admitted that a criminal case has been registered against him because of old enmity but contended that the said case bad nothing to do with his service in the Bank and that further he ,is deemed to be innocent unless proved guilty. The Bank authorities were not satisfied with the explana tion of the respondent and terminated his services by order, dated 22nd November, 1981. It was expressly asserted in the said order that this was "termination simpliciter" in accordance with law. Aggrieved by the above order, the respondent preferred a grievance petition before the learned First Labour Court which has .given the impugned decision. The learned Labour Court in arriving at the said decision has held that the respondent was a workman as besides the work of Watchman he was required to do the work of sweeping, cleaning and dusting the premises and furniture of the Bank and that the criminal case against the respondent had nothing to do with the discharge of his duties in the Bank and could not be made the basis for the termination of his service with the Bank.

3. I have heard Mr. Obaidur Rehman, who, appeared for the appellant Bank, and Mr. S. P. Lodhi, who represented the respondent employee.

4. It was contended by Mr., Obaidur. Rehman that admittedly the respondent was employed in the appellant Bank as Chowkidar, that his duty ‑ was to guard the branch at which he was posted, that for this purpose he was provided with a gun, which he. was required to carry at all times while on duty, and that there is no tangible evidence that besides the duty of guarding the Bank the respondent was employed or required to perform any other duties. The learned counsel drew a distinction between the duties which an employee is employed to perform and the duties which he may be required to perform. by his superior and submitted that if an employee is made or asked‑by ' his superior to do some work, such as bringing his children from school or to do any household work, which is outside the scope of duties of the employee, the latter cannot be said to be employed to do such duties and hence even if he does such work, this would not make him .a workman for the purposes of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, if the nature of 'work for which he .is employed is neither manual nor clerical.

5. As already indicated, the respondent himself in his grievance petition has admitted that he was employed in the appellant Bank as a Chowkidar. He ‑has further admitted in. his cross‑examination before the learned .Labour Court that the .Bank has provided him with a gun, that _‑during duty :hours he was .required to carry with. himself the loaded gun, that besides him there were two other ‑Chowkidars at the Napier. Road Branch, where be was posted, and that six peons used to work in the said branch. He has, however. claimed that despite this big staff be was required to perform the work of sweep ing, dusting and cleaning the Bank premises and furniture of the branch, to bring tea and other materials for the staff and had also to do other miscellaneous work. He has set up two grounds in support of his contention that he was required to do the above work, the first being that the peons sometimes used to come late, and the second that the Manager of the Bank, Ikram Ali Shamsi, had verbally ordered him to do this work. Now in the first place, the respondent did not examine lkram Ali Shamsi. There is thus nothing beyond his bare word in support of his contentions that he was required to do the above work and that the Branch Manager had directed him to do the said work. Secondly, I fail to see why the respondent, who was to guard the Bank with a loaded gun, should be required to perform these menial duties whereas as many as six peons were attached to the Bank. One or two peons may come late but not all six of them. Moreover, I cannot understand how the respondent could do the work of sweeping the Bank premises while carrying a loaded gun. The evidence of Aqal Khan, Officer‑in‑Charge of Watch & Ward' Section in the appellant Bank and Muhammad Ahmed, Personnel Officer in the Bank, is clear that the respondent was not required or employed to do any other duty except to guard the Bank premises with utmost vigilance. The respondent has attempted to show that witness Aqal Khan is on inimical terms with him but this allegation is clearly unfounded. In fact the evidence on record indicates that it was on his recommendation that the respondent was employed as a guard in the appellant Bank. I am, therefore, satisfied that the respondent was employed by the Bank solely for the purpose of guarding the premises of the branch where, he was posted and that his plea that he was required to perform other duties involving manual work is entirely without substance.

6. It was next sought to be argued by Mr. Obaidur Rehman that the respondent had received all his dues in full and final settlement and hence he cannot be deemed to be an aggrieved person entitled to file a grievance petition. Apart from the fact that no such plea was raised by the appellant Bank before the learned Labour Court, the only evidence led before the Labour Court which Mr. Obaidur Rehman could refer in support of this contention was the account statement, dated 26th November, 1981, produced by witness Muhammad Ahmed. The said statement indicates that the respondent was advised to collect his dues but even Muhammad Ahmed does not say that the respondent was paid his dues nor is there any other evidence on record to establish the fact that in fact the‑ respondent was paid his dues. Mr. Obaidur Rehman sought to rely on the statement of accounts of the respondent with the Habib Bank, filed with the memo. of appeal, but this statement cannot be looked into as it was not produced before the lower Court and as already indicated even the plea that the respondent had been paid all his dues was not raised in the Labour Court.

7. In the view that I have taken that the respondent was employed solely to perform the duties of a Chowkidar and that it has not been established nor there is reason to believe that he was employed or required to perform any duties involving manual work, I hold that the respondent cannot be deemed to be a workman for the purposes of the Standing Orders and hence is not entitled to file a grievance petition against the termination 4, of his services under clause (3) of Standing Order 12. 1 would accordingly, allow the appeal of the bank and would dismiss the claim of the respondent. The amount deposited by the appellant Bank with this Tribunal towards the back benefits of the respondent is to be refunded to it.

Appeal allowed.

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