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Appeal No. HYD-53 of 1984, decided on 23rd April, 1984.

-- Ss. 25-A & 38 (3) read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)- Security Guard of Bank aggrieved of dismissal from service-Verbal contention. that he was performing manual duties at relevant time-Petitioner failing to discharge his burden to prove by definite and positive evidence that he was performing manual duties-Assertion of respondent (Bank) that direct and substantial duties of petitioner were only to protect and guard the establishment as a security guard-Petition, in circumstances, held, rightly dismissed by Labour Court as not maintainable.

Wasiullah Qureshi for Appellant.

This appeal is directed against the order, dated 15th February, 1984, passed by the Labour Court No. VI at Hyderabad dismissing the applica tion of the appellant filed under section 25-A, I. R. 0., 1909 for re-instatement and back benefits.

2. The facts briefly stated are that the appellant was employed as a Security Guard in the respondent-Bank. He was issued a show-cause notice for a misconduct and his reply having not been found satisfactory an enquiry was ordered against him. The enquiry resulted in the charge having been established against him. He was, accordingly, dismissed from service vide order, dated 20th October, 1982. He preferred a Departmen tal Appeal and ultimately served a grievance notice on the respondent and his grievance having not been redressed he filed as application under sec tion 25-A, I. R. O., before the learned Labour Court. The learned Labour Court dismissed his application resulting in the present appeal.

3. I have heard Mr. Wasiullah Qureshi, the learned counsel for the appellant and have also perused the evidence adduced before the learned Labour Court. On the basis of the evidence on the record the learned Labour Court found the case against the appellant on the grounds that the application was not legally maintainable as the appellant was not a work man within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968 and that the charge of misconduct was proved against him. What I find from the evidence on the record that no effort was made on behalf of the appellant to prove by a definite and positive evidence that though the appellant was a Security Guard in the respondent-Bank the nature of the duties that he was performing were manual at the relevant time. He simply asserted in his application, grievance notice and the departmental appeal that he was assigned the duties of a peon/messenger. This assertion was denied categorically on behalf of the respondent in their reply state ment. The nature of the duties that he was performing as a peon or messenger have not been enumerated anywhere either in the application or in his evidence to show that the direct, immediate and substantial part of his work was manual and not of a Security Guard, simply keeping guard on the establishment of the respondent-Bank. On the other hand, apart from the fact that the assertion had been denied on behalf of the respondent-Bank, its Officer, Mahmood Ali Shah has been examined who has deposed that the duties of the appellant were never changed from that of a security guard to that of a peon or a messenger. According to him direct, immediate and substantial part of his work was only to protect and guard the establishment of the bank as a security guard and that he was not assigned any other duties of manual nature. In view of this evidence on record I find only a solitary word of the appellant against that of the respondent that he was assigned job of peon or messenger. The learned Labour Court rightly observed that the burden to prove that the nature of the duties that were assigned to him were manual, and that he Was a workman within the meaning of section 2 (i) of the Standing Order Ordinance was on the appellant, In my view the appellant has failed to discharge his burden in that respect. Accordingly the learned Labour Court rightly held that the appellant has failed to prove that he was workman and, therefore, his application was not maintainable. In view of my above finding it would not be necessary to go into further merits of the case which the learned Labour Court has discussed and has found to be in favour of the respondents.

4. The result is that the appeal is dismissed in limine.

A. E.

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