MUHAMMAD ASLAM KHAN Versus GOVERNMENT OF PAKISTAN
1. MUKHTAR AHMED JUNEJO, J.‑‑ Petitioners M/s. Edwards and Robertson filed C.P. No. D‑1046/89 and C.P. No. D‑104/89 against the decision dated 12‑12‑1989 given by the Sindh Labour Appellate Tribunal (hereafter to be mentioned as the Tribunal) accepting appeals of respondents Taj Muhammad and Israr Ahmed Khan and ordering their reinstatement in service of the petitioner with 50% of the back benefits. Both these petitions R would be disposed of by this order.
2. Admittedly, Israr Ahmed Khan, respondent No. l in C. P. No.D‑1046/89 and Taj Muhammad, respondent No. 1 in C.P. No. D‑1047/89 were employees. of the petitioners till termination of their services ordered on 13‑8‑1987 on the allegation that they made false statement before the Edwards and Robertson Union that they were appointed by the petitioners as "Workers" and they went on illegal strike on 11th and 12th August, 1987, alongwith members of the said Union. Respondents Israr Ahmed Khan and Taj Muhammad Khan claimed to have sent grievance notices to the petitioners after termination of their services. Respondent Israr Ahmed Khan filed grievance application No. 142/87 and respondent Taj Muhammad Khan filed grievance application No. 143/87 in IVth Labour Court, Karachi challenging termination of services and praying for reinstatement in service of the petitioners.
3. Case of the said respondent was that they being Customs Clerks in establishment of the petitioners were "workmen" for purposes of the Standing Orders Ordinance and that action of the petitioners in terminating their services was illegal, unwarranted, void and against the principles of natural justice. Said respondents alleged that they were coerced by the petitioners to desist from Trade Union activities, but they refused to comply with such direction given to them on behalf of the petitioners by Mr. Jawad Ali. Said respondents also alleged that they were not disbursed salary for the month of August, 1987 payable on 1‑9‑1987 and they were sent letters about termination of their services through registered post.
4. The grievance applications were contested by the petitioners who in their reply statements raised legal objections that the said respondents were not "workmen" and that the Standing Orders Ordinance was not applicable to the commercial establishment of the petitioners. On merits the petitioners took stand that the said respondents expressed in March, 1989 that they wanted to be trained in the specialised business of Clearing and Forwarding of oil exploitation machinery and hence they were sent to the docks for training in said field. Petitioners admitted in their reply statements that letters were issued to the said respondents for terminating the understanding with them for safety's sake and that Rs.1,600 were offered to Taj Muhammad and Rs.3,334 were offered to Israr Ahmad, as special expenses including gratuity. The impugned orders about termination of services, were defended to be legal and correct on the ground that the said respondents were junior to other workers in the dock.
5. After permitting the parties to adduce evidence by way of affidavits, learned IVth Sindh Labour Court, Karachi under two identical decisions dated 26‑2‑1989 dismissed both the grievance applications after taking view, that the grievance notices were not served upon the petitioners before filing of the grievance applications which were not maintainable, that engagement/employment of the said respondents with the petitioner was that of trainees, and lastly that the said respondents were riot workmen and had not given in their affidavits details of their duties and functions.
6. Both the respondents challenged dismissal of their grievance applications in the Tribunal under two separate appeals. Under the impugned decision dated 12‑10‑1989 learned Tribunal allowed both the appeals and set aside orders of the Labour Court and directed reinstatement of the two respondents in service of the petitioner with 50% of the back benefits. Hence this Constitution petition.
7. Mrs. Rashida Patel, learned counsel for the petitioners in the two petitions argued:
(i) That the respondents Taj Muhammad Khan and Isiar Ahmed Khan were not workmen' as per the definition of `workmen' given under the Standing Orders Ordinance.
(ii) That the Standing Orders Ordinance, was not applicable to establishment of the petitioners where less than 20 workers were working.
(iii) That action about termination of services was taken against the said respondent in accordance with law.
8. Mr. Rizwan Ahmed Siddiqui, learned counsel for respondents Israr Ahmed and Taj Muhammad controverted the contentions raised on behalf of the petitioners. He argued that the two respondents were workmen for the purposes of Standing Orders Ordinance and that the Standing Orders Ordinance would apply to establishment of the petitioners where total strength of Workmen was 20 or more.
9. In a case of this nature where aggrieved employees invoke jurisdiction of the Labour Court under section 25‑A of IRO, on the basis of a right guaranteed or secured under Standing Order 12(3) of the Standing Orders Ordinance, the onus is on such persons to establish that they are `workmen' under the Standing Orders Ordinance. In such a case mere designation of the affected employee would not determine his status, which can be determined from the nature of his duties, as per the view taken in the case of National Bank of Pakistan v. Lutfullah Abro (1990 PLC 142); National Bank of Pakistan v. Nisar Ahmed and others (1990 PLC 209), the view taken was that the question whether an employee was a workman or otherwise, being a question of fact has to be ascertained on the basis of the evidence to be adduced by the parties. In the case of Ganga R. Madhani v. Standard Bank Ltd. and another (1985 SCMR 1511), it was held that in determining status of an employee, what is to be seen is the overall nature of the duties assigned to the person in question and the main and primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties.
10. In the instant case respondents Israr Ahmed and Taj Muhammad Khan in their applications and affidavits claimed being permanent workmen, working with the petitioners as Custom Clerks but they did not mention, as to, what were their duties. On this point there is absolutely no evidence. The onus was on the said respondents to establish that they were covered by the definition of `workman' given in section 2(i) of the Standing Orders Ordinance. Since the said respondents did not discharge their onus, the finding has to be adverse to them.
11. The next question is about applicability of the Standing Orders Ordinance. As per section 1(4), said Ordinance applies to every industrial or commercial establishment wherein twenty or more workmen are employed or were so employed on any day during the preceding twelve months. In the present case, the petitioners filed affidavit‑in‑evidence of Yousaf Abbas who said that the petitioners establishment never wanted more than 18 persons as workman and that services of the two respondents as workers were surplus and hence for safety sake they were offered gratuity etc. In his cross‑examination Yousuf Abbas admitted that he was not employee of the petitioners but he was brother of Mohsin and brother‑in‑law of Anwar Abbas, who were partners of the petitioners company. In reply to a question from learned counsel for the said respondents, Yousuf Abbas stated that at the relevant time 18 workers were employed by the petitioners and he gave names of some of his employees out of whom S.M. Faqir was Manager and Rashid was Administrative Officer. He replied in the affirmative to the suggestion that names of the said respondents were not mentioned in the attendance register for September, 1986. Yousuf Abbas denied if bonus was given to 20 employees in September, 1987. Yousuf Abbas also admitted in his cross‑examination that no appointment letters were being issued as the number of employees in the establishment of the petitioners was less than 18. In this way evidence of the petitioners that number of workers in the establishment of the petitioners was less than 20 has not been rebutted and consequently it is held that Standing Orders Ordinance would not apply to the establishment of the petitioners.
12. Consequently, the Labour Court had no jurisdiction in the matter and so also learned Tribunal.
13. Consequently, these Constitution petitions are accepted and impugned orders dated 12‑10‑1989 are declared to be without lawful authority and of no legal effect. These are reasons for our short order in identical terms dated 10‑3‑1992.
14. H.B.T./E‑65/K ???????????????????????????????????????????????????????????????????????????????????? Petitions accepted.