1999 PLP 456 (PLC)

It is a complex job as I have to cater to the requirements of the entire imports requirement of the company. I have performed this job successfully." It will also be beneficial to reproduce the comment on future career' development/ expectations as under:‑‑ "As a very hard and dedicated Executive within house and outside training and motivation can prove a real asset to the company."

3. It seems relevant to refer to the job description as to the responsibilities of the appellant, attached with the main grievance petition by the appellant as under:‑-- "To maintain and file all documents that are exchanged with foreign suppliers and with customs. To attend Banks for original shipping documents, credits, pay orders, draft, amendments, bank guarantees and other related work of imports. Separate files for each credit to be maintained. To arrange clearance documents to clearing agents." It also seems relevant to refer Exh.AW‑1, which is a letter dated 11‑10‑1996, addressed to the Assistant Drugs Controller by the appellant himself, Exh.AW‑2 is another letter dated 17‑12‑1996, addressed to Daroga & Co signed by the appellant for Manager Imports, Exh. AW‑3 relates to some settlement, arrived at between the Collective Bargaining Agent and the Company.

4. Mr. Khan, referred to the relevant portion as to the annual increment/pay scales wherein the categories employed by the company have been listed with an agreement that all the workers on the pay roll of the company as on 1‑1‑1996 will receive one time increment of Rs.400 per month on the salary as on 31‑12‑1995. This settlement excludes the management group of which the appellant was a member. Special Power of Attorney executed by the Managing Director on 22‑1‑1992,in favour of a number of executives (named therein) including the appellant as Procurement Executive, to do, execute and perform all deeds, matters and assignment with respect to Excuse Department and other departments on behalf of the company.

5. Reference has also been made to the cross‑examination of the appellant by the counsel for the respondent. It has been admitted by the appellant in his cross‑examination that he was representative of the Company in the various Departments such as Banks, Customs, Shipping Agents, Ministry of Health, Excise and Taxation and that he used to deal with those Departments in connection with Imports formalities of the company. He also admitted that he was working on photo-stat machine though he started as Machine Operator as long back as 1961. He also admitted that he used to sign letters in the different departments. He also admitted that he was placed in the management cadre.

6. During the course of submission of Mr. Khan. I inquired Mr. Warsi would he like to refer to some document, showing that the appellant was a workman. He said whatever documents have been looked into by this Tribunal are sufficient and he would not like to refer to any other document to substantiate the plea as to whether the appellant is a workman or not.

7. MT. Warsi, learned counsel for the appellant, in support of his plea that the appellant is a workman, has placed his reliance on (1) General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLD 1986 Supreme Court 103) and (2) Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 PLC 424).

8. In the first named case, the appellant was working as Shift Engineer in the respondents Hotel. It was held that he was not a workman. However, the golden rule laid down by the Hon'ble Supreme Court is very much relevant. Providing guideline for determination of the question as to an employee under the Industrial Relations Ordinance/Standing Orders Ordinance, was a workman or not. The relevant observations read as under:‑‑ "

11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial, opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation, which is not conclusive. The question to be examined is whether manual or electrical work is incidental to the main work or a substantial part of it, so that, the fact a person 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 feature, the pith and substance of his employment must be manual or clerical before the definition is attracted." In the second case, the rule, referred to above, has specifically been relied on.'

9. On the other hand. Mr. Khan, placing his reliance on the first named case, also referred to the following case:‑‑ (1)Pakistan International Airlines Corporation v. Punjab Labour Appellate Tribunal and others PLD 1979 Lah.

415. The relevant paragraph appears at page 100, which is reproduced as under:‑‑ "(1) Recovery of all PIA dues against all Ministries of the Government of Pakistan and other Government Departments/Offices by personal visits, correspondence and other means of communications. (2) Expedite recovery of PIA dues from all Foreign Missions at 'Islamabad in the manner aforesaid. (3) Actively follow‑up with the above Office and deal with all queries raised by any office, in accordance with the laid down procedure. (4) Assisting Station Accountant‑PIA, Rawalpindi in maintaining a complete and upto date file of all outstanding dues recoverable from all category of debtors. (5)' Follow‑up with the department concerned any matter referred to by the Head Office." Reference may also be made to para. 10 which reads as under:‑‑ "

10. Apart from his normal duties as a Liaison Officer respondent No.2 performed other extra duties of conducting departmental inquiries. In his statement before the Labour Court, however, respondent No. 2 stated his duties as under: (1) To maintain a ledger; (2) to write letters in order to recover credits from various establishments; (3) to prepare invoice. (4) to maintain thirty files and six registers. He, however, denied that he had any managerial or supervisory duties and stated that he neither had any subordinate nor did he have any power to engage or discharge any employee." After considering all the aspect of the case, the Lahore High Court came to the conclusion that the respondent/employee was not a workman. (2) Naeem ‑Wahid v. Sindh Labour Appellate Tribunal and another (1984 PLC 352). In this case our own High Court laid down the rules as to the parameters of manual and clerical work. It was, thus, observed that: "Both the manual and clerical work in the sense these terms are used here, connotes that it is more or less a routine work,. not requiring any great amount of initiative imagination, direction, control and supervision in discharging the same".

10. After going through the facts, coming on record and the submissions of the learned counsel for both the parties, it appears that the appellant's main job was to keep in contact with the Banks, Customs, Excise Department, Drug Inspector of the Government of Sindh in connection of performance of his duties as Procurement Executive. The clerical work was merely included carrying out his assignment in which he has to apply his mind, as such, I agree with the finding of the learned Presiding Officer of the Labour Court in holding that the appellant was not a workman.

11. Mr Warsi next submitted that service of the appellant could not be terminated. The plea of re‑orgainsation is misconceived. The relevant portion of the termination letter dated 8‑8‑1997 will be relevant to be quoted:‑‑ "Pursuant to a decline in sales (in volume terms) and a significant decrease in the profits‑it was necessitated to review the organisation structures in order to become more cost effective and remain competitive in the market place. As a consequence of above review of organizational structures, it has been decided that the position of Procurement Executive should be abolished." Mr. Warsi then submitted that there were two officers in the Company M/s. Hanif and Muhammad Naeem. They being juniors working in the same Department, their services should have been terminated first. The appellant, being senior, should have been retained. Mr. Khan had two‑fold contention to meet this objection: Firstly, that these two officers belong to other category as admitted by the appellant himself in cross‑examination (page 141) and secondly that Hanif resigned from his job. As regards Naeem, he continues in the employment of the company, but has a different job assignments as proved by the Job assignment sheet at page 175,R/A/5, as such, the plea of the appellant is not tenable, on fact as well as in law because the Standing order '13 of the Standing Orders Ordinance, 1968 provides the retrenchment on the basis of "last come first go" but this principle will apply to the workmen of the same category.

12. Mr. Warsi further submits that the plea of shrinkage of the business and decrease in profit is not correct. He relies on press report printed in a Magazine. These Magazines were taken on record subject to objection from the learned counsel for the respondent by the learned Labour Court and I say that mere placing these documents on record are not admissible in law. He should have produced the annual report which could give a correct figure, the volume of work and the profit. This plea is not sustainable. .Mr. Khan referred to R/A/1, statement showing shrinkage of business in two pages, which goes to prove it.

13. Lastly Mr. Warsi submitted that the appellant had put in 37 years of service. His retirement would have taken place under the policy of the company at the age of 58 years. He has, therefore, 31 months more to go further in service, as such, he would have earned more than what has been offered. But it is not a case of termination on crossing the age of superannuation; it is retrenchment. In any case, I have noticed that the company has paid a sum of Rs.2,82,026, being ex gratia amount, which according to Mr. Khan, comes to about 22 months full salary. In this respect, the observation of the learned Presiding Officer is also noticeable that the amount, if calculated comes to 74.09% of the salary of the appellant for 31 months (without any work. because he is free to take employment anywhere he likes).

13. For all the discussion as aforesaid, I feel that the decision, which is well‑considered on the points of facts and law, by the learned Labour Court, requires no interference by this Tribunal. The appeal is, therefore, dismissed. Announced in open Court, this the 14th day of April, 1999. H.B.T./268/K/Lab. (Trib). Appeal dismissed.