MUHAMMAD KHAN Versus MANAGEMENT OF PREMIER CLOTH MILLS, LYALLPUR

1. Muhammad Khan, the appellant, was employed as watchman in the Premier Cloth Mills, Lyallpur. He was removed from service by an order dated 28th May 1974. He filed a petition before the Junior Labour Court No. 2, Lyallpur for his re-instatement under section 25-A of the Industrial. Relations Ordinance, 1969. The learned Court held that a watchman is not a worker. His petition was dismissed. He has come up in appeal.

2. The first question, which needs determination in this appeal, is whether a watchman is a worker as defined in the Industrial Relations Ordinance, 1969 or West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. There is a long chain of authorities holding that a Watchman or Chowkidar is not a worker within the meaning of section 2(n) of the Industrial Disputes Ordinance, 1959. The lower Court has cited in Khasta Khan v. Fateh Ali, Chemicals Karachi (1968 P L C 338) and General Secretary, Bannu Woolen Mills Workers' Union v. Management of Bannu Woollen Mills, Bannu (1964 P L C 347). These authorities as well as other authorities which can be found on the same subject kept in view the definition of the workman as given in the Ordinance, 1959. According to this definition "workman" means any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. This definition was completely changed in the Ordi nance, 1969. Now this definition is that "worker, and "workman" means any person not falling within the definition of employer who is employed in an establishment or industry for hire or reward. It may be observed that the old definition of "workman" confined to those doing skilled unskilled, manual or clerical work has been abolished. It provided that any person who does not fall within the definition of employer is a worker or workman. Such a person must be employed in an establishment or industry for hire or reward either directly or through a contractor. In view of the definition given in the Ordinance of 1969 all doubts on this point have been dissolved. Now the nature of duties is not the criterion but the main criterion is that any person who is not an employer is a workman. The question still remains to be seen, is as to whether a watchman is a workman as defined in section 2(a) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Originally a workman under the above enactment was a person employed in any Industrial or Commercial establishment to do any skilled or unskilled, manual or clerical Labour for hire or reward but the definition has also been amended and the word "Labour" has been changed by the word "work" the effect would be that a member of security staff i.e. watchman or Chowkidar will be deemed to be performing unskilled work and thus will be covered by the definition of a workman given in the Ordinance, 1968. Accordingly, I hold that the appellant although a watchman is a worker. The other two subsections namely (6) and (7) relate to the question of termination of employment of worker as a result of retrenchment or dismissal, etc. However, it is provided in sub section (7) that the Junior Labour Court shall give its decision in the manner, laid down in subsections (4) and (5). The plain word "shall go into all facts of the case" does not mean that the Labour Court have been given the authority to interfere into the internal administration of a Management. All the decision of the superior Courts, which have come to my knowledge so far, laid down a clean principal on the subject of inquiry. This principle is that though the Management of a concern has powers to direct its on internal administration and discipline, the powers are not unlimited; and when an industrial dispute arises, the Industrial Tribunal have the powers to see whether a termination of service of workman is justified. In cage of dismissal for misconduct however the Industrial Tribunal does not act as Court of Appeal and cannot substitute its own judgment for that of the Management. It will interfere only-

(1) When there is want of good faith;

(2) When there is victimization or unfair labour practice;

(3) When the Management has been guilty of basic error or violation of principle of natural justice; and

(4) When on the material, the finding of the Management is completely baseless or perverse.

3. Ordinarily it is not the function of the Management to prove that the inquiry was not suffering from any defects, mentioned above. It is the duty of the worker to produce evidence before the Labour Court to prove that any of the defects mentioned above existed in the inquiry. In the present case there is nothing on record to show that the inquiry was suffering from any material defects, by virtue of which interference was called by a Labour Court.

4. For the reason given above, there is no merit in the appeal and the same is hereby dismissed. No order as to costs.