1994 PLP 157 (PLC)

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Date Nature Probable Permitted ACTUAL OVERTIME Approved of work time by by required From To Hrs. Mnts. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 1 2 3 4 5 6 7 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ A perusal of these documents would show that overtime to the workers was permitted by "AH" and others, as well as to the drivers from time to time subject to approval of another person. Akhtar Hussain, respondent No. 3, while appearing as P.W. 1 in the Labour Court, admitted in his examination‑in chief that the word "AH" mentioned therein meant Akhtar Hussain and it related to him. Akhtar Hussain also admitted in his statement that overtime sheets Exh. R‑2/1‑14 bore his signatures and he permitted the same. This statement is in the following terms:‑‑ The Distribution Officer of the petitioner/company, namely, Riaz Ahmad, appeared as R.W.

2. He also stated in his cross‑examination that the overtime- sheets and delivery challans related to the period prior to 1987. He admitted that respondent No. 3 was working under him and he was working under the Regional Sales Manager. In the circumstances, mere fact that respondent No. 3 had no power to appoint or dismiss any one and the grant of overtime was subject to sanction by another person, would not ipso facto exclude him from the category of persons performing work of supervisory nature. Furthermore, there is no evidence on record to support the contention of the learned counsel for respondent No. 3 that respondent No. 3 merely made relevant entries in the overtime sheets but the same were not signed by him. The learned Tribunal, apart from making bold observations to the effect that Exhs. R‑7/1 to 45 were overtime sheets approved by respondent No. 3 failed to appreciate its effect. Clearly these documents show that the respondent was performing duties of supervisory and managerial nature and this ground by itself is sufficient to quash the impugned order of the Tribunal.

12. Ch. Muhammad Farooq next relied on Invoices Nos. 231, dated 17‑2‑1986, 230 dated 17‑2‑1986, 222 dated 10‑2.1986, 206 dated 27‑1‑1986, 195 dated 13‑1‑1986, 190 dated 6‑1‑1986, 231 dated 17‑2‑1986, 212 dated 3‑2‑1986, 206 dated 27‑1‑1986 and 191 dated 6‑1‑1986, to contend that respondent No. 3 was conducting various sales. Respondent No. 3 has admitted in his cross‑examination that these documents were prepared by him and bore his signatures in his capacity as Sales Officer. He also admitted in his cross-examination that whenever he was deputed to go for sales he used to collect the sale proceeds from the market and the Company products were also sold by him. Riaz Ahmad (R.W. 2) also deposed that respondent No. 3 was assigned the duties of sale supervision, collection of sale proceeds and sanction of delivery challans and was given sale premium, which was not granted to the workers.

13. When faced with this, learned counsel for the respondent submitted that none of the documents relied upon by learned counsel for the petitioner have been signed by respondent No.3. He merely typed it or prepared the same by making relevant entries, as the case may be. The documents were signed by some other officers, and therefore, it cannot be said that the documents relied upon by the petitioner himself demonstrate that respondent No. 3 was doing clerical and typing work under the instructions of some other person. R.W.2, Riaz Ahmad has, however, clearly stated in his cross‑examination that respondent No. 3 typed some documents off anal on but that was not part of his main duties. In any event, the reading of oral evidence coupled with the documents referred above, would show that respondent No.3 was principally connected with the sale of the petitioner Company's products and also collected the sale proceeds on behalf of the Company.

14. Ch. Muhammad Farooq next placed reliance on an excerpt from the Register of Employment in Form IV, wherein the nature of work of respondent No. 3 has been described as Junior Officer. It is true that in determining the status of a person whether he is a `workman' or not one is not to see his designation simpliciter but the duties actually performed by him. Here the entries made in the register of employment of the Company coupled with the work performed by respondent No. 3, as discussed above, would show that he was performing functions of supervisory nature and was not doing any manual or clerical work except typing occasionally done by him.

15. Letter bearing No. ERD/0068, dated 3‑1‑1988 shows that respondent No. 3 was granted a salary increase of Rs.210 with effect from January, 1988. In the pay roll register (Exh. R.3), he has been shown as Junior Officer. He has been marking his attendance in the register (Exh. R.8) as Junior Officer. Thus visualised respondent No. 3 was not only designated as Junior Officer but is also proved to have been performing the duties pertaining to sales promotion.

16. When faced with this, learned counsel for respondent No. 3 reiterated his reliance on letters typed by respondent No. 3 during the course of his service relating to the period January to March, 1988, sales invoices typed by him during January 1988, entries made by respondent No. 3 in cash sales register during January and February 1988, debit/sale record prepared by respondent No. 3 during the month of December 1987 to March, 1988, debit balance lists, summary of outstanding amount prepared during the month of December 1987 by respondent No. 3, summary of dishonoured cheques prepared during the month of December 1987, monthly expenses statement for cars prepared during December, 1987, follow up report of over due payments prepared by respondent No.3 in the month of December 1987 and oral statement of respondent No. 3 before the Labour Court, to show that his primary duty was to do the typing work and preparation of some record, but he was not performing supervisory or managerial work, in that, in Faisalabad Depot he was working under Riaz Ahmad (R.W.2) and the latter was answerable to the Regional Office, Lahore and Head Office, Karachi. Mr. Munawar Ahmad Javed, learned counsel for respondent No. 3 vehemently submitted that respondent No. 3 had no power to recruit or dismiss anyone and the staff was not answerable to him. He merely permitted the overtime to the employees but was not competent to give its approval and, therefore, the Appellate Tribunal, after appreciating the evidence on record rightly concluded that respondent No. 3 had neither any managerial nor supervisory power and had been doing clerical work and was, therefore, covered by the definition of `workman' as given in section 2(xxviii) of the Industrial Relations Ordinance, 1969, and section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Learned counsel for respondent No. 3 also placed reliance on Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505), Allied Bank of Pakistan Limited v. Muhammad Humayun Khan and others (1988 SCMR 1664), Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 SCMR 304), Pasrur Sugar Mills Ltd., Pasrur v. The Punjab Labour Appellate Tribunal, Lahore and 2 others (1991 PLC 328), to contend that the High Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution cannot sit as a Court of appeal on the question of fact and substitute its own decision for that of the Tribunal, even if a wrong conclusion has been drawn by the Tribunal after appreciating the evidence.

17. Ch. Muhammad Farooq submitted that the petitioner cannot be permitted to raise this question, in that, the Supreme Court has remanded the case for appraising evidence to decide the question whether respondent No. 3 was workman or not and even permitted the parties to produce additional documents, if necessary and, there fore, the question whether respondent No. 3 was a workman or not is to be decided by this Court after appreciating the evidence on record. The submission made by learned counsel for the petitioner finds support from the remand order. After perusing the material available on record, respondent No. 3 has not been found to be a `workman'/`worker'.

18. Be that as it may, since a number of authorities have been cited from either side, I propose to deal with it. In the case of Ganga R. Madhani v. Standard Bank Ltd. and others (1985 SCMR 1511), a bank employee who was appointed as an Accountant, was not held to be a `workman' within the definition of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and para. 3(b) of MLO Zone `C' No. 50, in that, the employee had been conferred the power to manage some of the affairs of the bank and a number of powers he could exercise by himself. Here the petitioner had power to permit the drivers to do overtime work and was responsible for conducting sale and collection of sale proceedings which were the matters relating to management of the Company.

19. In the case of General Manager, Hotel Inter‑Continental, Lahore and another v. Bashir A. Malik and others (PLD 1986 SC 103), while determining the nature of employment of a shift manager, it was held that in determining the nature of duties assigned to the employees one is to look to the nature of duties of the employee as a whole with reference to his main and substantial part of work and not casual or occasional work done by him. The same principle was followed in the case of Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi (PLD 1969 Lah. 717). Thus, visualised, the mere fact that some typing work was done by respondent No. 1 and some reports were prepared by his hand were minor part of the duties and the same cannot convert the nature of his supervisory work to that of clerical. As held in the case of Hotel Inter Continental (supra), the real test is as to what constitutes the primary duties assigned to an employee during the course of his employment. Here the primary duty of respondent No. 3 at the relevant time was to do sales work and, therefore, this did not involve skilled or unskilled, manual or clerical Labour as mentioned in the definition of `workman' either under section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) or section 2(xxviii) of the industrial Relations Ordinance, 1969.

20. In the case of Muhammad Saddiq v. Punjab Labour Court No.1, Lahore and another (PLD 1988 SC 633), the employee was initially appointed as confectionary cook. Later, he was promoted and at the relevant time was in charge of the confectionary cooks. He used to take his meals in the Officers Canteen and stopped contributing to the union fund in view of his promotion, the employee was held not to be a workman. The High Court reversed the concurrent findings of the Labour Court and the Labour Appellate Tribunal, after appreciating the evidence on record. The judgment of the Court was upheld by the Supreme Court holding:‑‑ "The real test for determining whether a person falls within the ambit of the definition of `workman' depends on the nature of the duties performed by him. In the present case it was manifest from the evidence on record that the duties of the employee at the relevant time were of a supervisory nature and since the nature of work performed by an employee was to be considered as the true criterion and the deciding factor in determining as to whether or not he was a `workman' High Court was justified in the light of the evidence on record, to reverse the concurrent findings of the Labour Courts below which were not based on the evidence on record."

21. In Abdul Razzaq v. Messrs Ihsan Sons Limited and two others (1992 SCMR 505), it was held that the fact that a person employed in the supervisory capacity does some manual or clerical work as ancillary or incidental to such employment would not bring him within the ambit of the definition of `workman'. But the pith and substance of his employment must be manual or clerical before the definition is attracted. In the precedent case, it was also held that "the High Court in its Constitutional jurisdiction under Article 199 could not sit as a Court of appeal on the question of fact but the finding of fact recorded by a competent Tribunal could be interfered with by a High Court in the exercise of Constitutional jurisdiction, if the same was based on no evidence or was recorded by ignoring material evidence on record. However, the finding of fact cannot be interfered with by the High Court in exercise of Constitutional jurisdiction merely on the ground that a different view on the basis of some evidence was possible".

22. In Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 SCMR 1664), it was held that where the finding of fact recorded by the Labour Court and the Appellate Court and upheld by the High Court in the exercise of its Constitutional jurisdiction was established in evidence, it called for no interference.

23. In Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 SCMR 304), the employee was appointed as Chief Accountant at a salary of Rs.1,050 per month. Later he was ordered to act under the instructions of another person who had been given the full charge of the Accounts Section. His services were terminated for the reason, "Although we gave you a reasonable time to work as Incharge of the Account Section, but unfortunately, we could not get the satisfactory results". A question arose before the Labour Court whether the employee was a workman within the definition of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; the Labour Court recorded a finding against him. The High Court took the view that the findings of fact by Tribunals of limited jurisdiction were not sacrosanct and it could examine the finding of such Tribunal if the decision was arrived at on the basis of "irrelevant facts or was not based on the evidence on record". After appreciating the evidence, it was held by the High Court in the precedent case that the Tribunal rightly held that the employee was a workman. The Company sought Leave to Appeal. The Supreme Court refused to take any legitimate exception to the finding of the High Court. It also examined the chart of duties of the employee and the statement in his affidavit that he had no supervisory function at all after he was asked to act on the instructions of another person who was given full charge of the Accounts Section. Consequently, the petition for leave to appeal was dismissed.

24. In Pasrur Sugar Mills Ltd., Pasrur v. The Punjab Labour Appellate Tribunal, Lahore and others (1991 PLC 328), it was held that the High Court in the exercise of Constitutional jurisdiction cannot interfere with the judgments of the Labour Appellate Tribunal where it neither suffered from any jurisdictional shortcomings nor any material irregularity or misreading of evidence.

25. In the case of Ittehad Chemicals v. Punjab Labour Appellate Tribunal and others (1990 PLC 227), it was held that where an employee was predominantly working in supervisory capacity, the mere measurement work and ancillary job would not bring him within the ambit of `worker' or `workman' as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Ordinance, 1969.

26. In the case‑law discussed, it has been consistently held that it is the nature of the work done by the employee that would be essential and fundamental consideration and not his designation simpliciter. The nature and scope of duties performed by the employee is to be considered as a whole in determining whether the employee is performing supervisory work or work of a clerical or manual nature. Where a person performing manual work also does some clerical work which is ancillary or incidental to his employment, he does not fall within the ambit of `workman'/`worker' as defined in the Ordinance and the Standing Orders. Here the Labour Appellate Tribunal recorded a finding of fact that the respondent was doing some typing work or prepared documents etc. which were of clerical nature but failed to appreciate that it was established on record that when respondent No. 3 was promoted as Junior Sales Officer, he was entrusted to conduct the sales and the clerical work performed by him was merely ancillary or incidental to his employment. I, therefore, hold that the nature of duties performed by respondent No. 3 before his termination was supervisory and cannot be treated as manual or clerical and that he cannot be treated as `workman' within the ambit of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and section 2(xxviii) of the industrial Relations Ordinance, 1969. In view of the above, the impugned judgment dated 11‑7‑1990 passed by the Punjab Labour Appellate Tribunal is declared as without lawful authority and of no legal effect. The writ petition is accepted with no order as to costs. AA./D‑26/L Petition accepted