2007 PLP 400 (PLC)

MRS. YASMIN ABBASEY, J.

Facts leading to this appeal are that appellant was appointed in respondent-Bank as Assistant. With the passage of time he was promoted as Grade-III Officer but even after promotion he still was performing duties as a Clerk. Though in the capacity of Grade-III Officer he was holding powers of attorney of bank with different powers of supervisory nature and was also posted as officer in Qamar House Establishment, but in practical he was not empowered to do so. Therefore, in fact he was a workman within the meaning of section 2 clause (1) of West Pakistan Ordinance No.VI of 1968. Therefore, the labour case filed before trial Court was maintainable and he was entitled to the relief sought for. Referring to the contents of power of attorney, it is argued by learned counsel for appellant that learned trial Court was influenced with its contents and the powers assigned therein and had observed that appellant is not a workman. In fact he had no supervisory authority. None was working under his subordination. He had no power of hire and fire. To support his argument, learned counsel has referred the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and 2 others 1983 PLC 498, wherein it is observed that a paid servant would only be responsible to his owner and should supervise and control the entire establishment. If any of the two qualifications are found wanting, such person will not fall within the definition of "employer" but will have to be considered as a workman and he is to be shown to occupy a position of supervision or control the entire establishment and not only a branch or department and for such reason could not be said to be covered by the definition of "employer" as stated in section 2(c)(iii) of the Standing Orders Ordinance. Therefore, we hold that the respondent was a "workman" acid not within the definition of "employer" as it covers whose who employ workmen under a contract of employment, in an "establishment" as defined in clause (ix) of the Industrial Relations Ordinance". Contrary to it learned counsel for respondents contended that the very execution of power of attorney is a sufficient proof of the fact that the appellant was empowered with supervisory jurisdiction. Being attorney holder of bank, he was entitled to perform a number of managerial and administrative acts on behalf of bank since December, 1993. Apart from that he was also drawing salary of grade-III Officer, which is sufficient proof of fact that neither appellant was posted as clerk, nor any work of such nature was assigned to him. The term "workman" as defined in section 2(i) of the West Pakistan Industrial. and Commercial Employment (Standing Orders), Ordinance, 1968 is that:- "2(i). "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." The term clearly expresses that a person employed to do any skilled or unskilled manual or clerical labour for hire or reward will be termed as workman. Though learned counsel for appellant had stressed much that in spite of promotion of appellant as Grade-III Officer, he was stuck hold to the place of clerk. If it be accepted then it is an astonishing fact that in spite of promotion in Officer's category on 16-7-1990, not for a single time' till the issuance of charge-sheet on 6-10-1996, he ever attempted to claim his supervisory authority as Grade-III Officer, which in presence of power of attorney executed in favour of appellant by bank authority to him to perform administrative acts on behalf of bank, promotion in officer's grade and drawing of salary as Grade-III Officer is difficult to accept. I do find support to my view from the observation referred by learned counsel for respondent in the case of Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511, wherein discussing the contents of power of attorney executed in that matter, which are almost of the similar nature as discussed in the present case are that:-- "A reading of the above mentioned paragraphs clearly shows that powers thereby conferred on and functions thereby required to be performed by the appellant can neither be termed as manual nor clerical work and evidently involve the exercise of discretion and taking of important decisions. It is noteworthy that he has also been given in clear and unambiguous words the power to manage some of the affairs of the bank. He was also given a number of powers which he can exercise by himself. This is clear from a reading of paragraph No.10 of the power of attorney which authorizes him to do all acts, deeds and things, which are necessary requisite or expedient for the better or efficient performance of several acts, relating to the affairs of the bank. Similarly paragraph No.11 authorizes him to do things, perform functions and transact in the name of and on behalf of the respondent-Bank alone and singly, or jointly with any other attorney or officer of the bank, a large number of functions which can by no means, be said to be manual or clerical in nature. As such we are of the view that the learned Division Bench of the High Court of Sindh and Balochistan at Karachi, had rightly held that Ganga Ram appellant was not a "workman" within the meaning of clause (i) of section 2 of the 1969 Ordinance." In the same line of discussion, while examining the term "workman" as embodied in Industrial Relations Ordinance, 1969, it is observed in the case of Muhammad Ali v. Sindh Labour Appellate Tribunal and 2 others 1985 PLC 403 that:-- "It is not disputed that the petitioner at the time of termination of his services was working as Manager of the PIA Branch or both of the respondent-Bank and further a power of attorney had been given to him by the Bank as far back as 1965. The said power of attorney entitled the petitioner to perform a number of managerial and administrative acts and generally to act on behalf of the respondent-Bank. Some of these acts were authorized to be done by the petitioner jointly with another attorney and others by him individually. Looking to the wide powers conferred upon him by the aforesaid power of attorney it is clear that the petitioner was empowered to do important administrative and managerial functions which are wholly outside the ambit of a workman employed to do manual or clerical functions." Even if the statement of appellant that he was doing clerical work in contrary to the powers assigned to him in the power of attorney execution of which has been admitted by him in his cross-examination, it was for him to prove the same and brought on record the nature of work being done by him on that particular post to be of clerical nature. Except raising a plea that he was doing clerical job, the nature of work performed by him during the period was not proved by him. The burden of proof still remains on him that he was performing his duties as a workman or of supervisory nature. Even otherwise, causal or ancillary work on a particular post does not determine the nature of duties of an employee as a whole. It is a well-settled principle that nature of work done by an employee during the whole tenure of his service would be the essential and fundamental consideration for determining the question. However, such question that whether the appellant was doing manual or clerical work is incidental to the main work or was a substantial part of it requires satisfactory evidence, which is lacking in the present case. hi the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 it is observed that if a person is employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted. The term "workman" has further been elaborated in this very judgment reported as PLD 1986 SC 103 (supra) which reads as under: "The definition clause contained in section 2(i) of the Ordinance, which requires interpretation uses the expression "any skilled or unskilled manual or clerical labour". As already indicated the word "labour", was substituted with the word "work" by Act XXIII of 1973. Thus, the scope of the definition was widened subsequently. Under the Ordinance the employees in an Industrial or Commercial establishment may be broadly divided into the following classes:-- (i) Those who are workmen within the meaning of the term "workman" as defined in section 2(i) of the Ordinance; (ii) those who are not such workmen, as for instance, a manager of a factory or a person responsible to the owner for the supervision and control of such establishment in any industrial establishment under the control of any Government department, the authority appointed by such Government in this behalf." In addition to what has been discussed and referred it would be beneficial to reproduce the observation made in a case reported as Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33 as under:-- "The fact remains that undoubtedly the petitioner in his capacity as Officer Grade-II has been heading a department of the respondent establishment independently and supervising the work of at least five persons. No doubt, he did not have the power of hire and fire, the nature of job as performed by him and evident from the record, including the power of attorney executed in his favour tends to show that he was not primarily employed as a workman doing manual or clerical skilled or unskilled work. The nature and duties performed by him primarily and essentially appeared to be of managerial and supervisory nature, which clearly fall beyond the ambit and purview of the term "workman".." In view of the foregoing reasons I do not find any sufficient ground for setting aside the order dated 20-5-2005 passed by Sindh Labour Court No.V, Karachi. In terms whereof appeal of the appellant is hereby dismissed. H.B.T./K-8/K Appeal dismissed.