1989 PLP 461 (PLC)

8. I have fully attended to the said contentions and the material placed on record. The respondent has failed to bring on record any documentary proof indicating that the petitioner had actually relinquished charge at Sadiqabad. The said order shows that he had been merely attached with Marketing Division, Lahore. The petitioner being a Purchase Officer must have in his custody of valuable record etc. It is strange that he was not directed to hand over the charge. The learned counsel for the respondent has failed to convince me that the petitioner had been transferred to Lahore and in fact working there when the impugned order of his termination was passed. The contention of the learned counsel for the petitioner in the circumstances appears to be forceful. Resultantly, the said legal objection is hereby rejected.

9. Now reverting to the merits of the case, the petitioner has alleged violation of Standing Order 12(3) of Ordinance, 1968, and in order to maintain the petition under section 25‑A of the I.R.O. 1969, he must be a workman under the definition of workman in Section 2(1) of the said Ordinance, which provides as under:‑ "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.

10. In case Hotel Intercontinental, Lahore v. Bashir A.Malik etc. P L ~D 1986 S C 103, the Honourable Supreme Court has laid down the following test for determining the question whether an employee is a workman within the meaning of various statutes in the field of Labour Legislation. 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 clerical work is incidental to the main work or a substantial part of it, so that, the fact that 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 features, the pith and substance of his employment must be manual or clerical before the definition is attracted.

11. Now, I proceed to examine the nature of work done by the petitioner employee, in the light of the above dictum laid down by the Supreme Court.

12. No documentary proof has been led by the either party in the shape of Duty Roster etc. of the petitioner. We have, therefore, to examine and analyse the oral evidence on record. The petitioner has deposed that he had been doing manual and clerical work by receiving Requisition, calling quotations, preparing comparative statements. Purchase orders were issued by Procurement Manager, '', while he would prepare the purchase orders. The bills were paid by the Accounts Department. He would deposit the necessary material purchased by him in the warehouse. He used to count the bags for the supply of Fertilizers etc. In the cross‑examination, it was admitted that he had the authority to purchase material valuing at Rs.15,

000. He clearly admitted the documents Ex.R.5 to Ex.R.7. The petitioner sanctioned leave of the Typist, purchase Assistant and clerk who worked under him. He also recorded the ACRs of Purchase Assistant for a period of three years. Documents Ex.R.8 to Ex.R.12 stand admitted. In rebuttal Abdul Majeed R.W.1 (Purchase Assistant) has stated that he worked under the control of the petitioner. The petitioner had no clerical job to do. He would prepare the requisition statement and purchase order and petitioner signed the said documents. He categorically stated that the petitioner never counted the bags. He would only see that bags were according to the sample. The petitioner would only go and survey the market. It is interesting to note that the petitioner did not cross‑examine this witness on the said point. He has, therefore, indirectly accepted the statement of this witness as for the nature of duty performed by him, is concerned.

14. Major Ihsan Oadir Tariq, R.W.2 is the Purchase Officer. He has emphatically asserted that he had not been performing any manual or clerical duty. He rather performed supervisory duty.

15. From the said discussion, I am convinced that the petitioner controlled Assistant Purchase Officers, typists and clerks. He recorded the Confidential Reports of Assistant Purchase Officer and sanctioned leave to the said subordinate staff. It is thus amply proved that the petitioner had power to control his subordinates. The petitioner has half‑heartedly tried to show that he used to do certain manual work by counting the bags, but I am of the view that his main duty was to survey the market, purchase material, collect quotations and send requisition etc. The preparation of comparative statements and getting them typed was ancillary to his main duty. The manual work is that which is done with hand. There is nothing on record to show that petitioner had been doing manual Labour. It would not be out of place to observe that petitioner drew basic salary of Rs.2,820 per month. fie had been provided with a three bed furnished house at Officer Colony. He also received CAT allowance. He is, therefore, not a workman.

16. While forming the said view, I have also sought guidance from the case of Sultan Masood Tiwana v. General Manager Dawood Hercules Chemicals Ltd. Lahore 1975 P L C 556 (Labour Appellate Tribunal Lahore). In case of Purchase Assistant it was held: "From the statement of the appellant I find that his duties were to collect quotations from the market about the stores to be purchased and subsequent to the approval of the quotations by the Supervisor to purchase and collect the stores from the sellers. Since in his petition under section 25‑A he was claiming a right guaranteed to him under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968, he has first to establish that he is a workman under the said Ordinance. He was dismissed from service on 1‑8‑1972. At that time section 2(i) of the said Ordinance read as follows: A workman means any person employed in any Industrial or Commercial establishment to do any skilled or unskilled, manual or '' clerical Labour for hire or reward." The learned counsel for the respondent contended that since the appellant did not do any manual Labour in the discharge of his duties he was not a workman within the meanings of the aforementioned definition of workman. According to Stroud's Judicial Dictionary, Labour is defined as manual Labour and not manual work. The true meaning of the Labour is that which tests a man's muscles and sinews. Since the appellant's duty was merely to collect quotations from the market about the stores to be purchased and after approval of the supervisor to go and purchase the said stores, he clearly does not come within the definition of manual labour. He is, therefore, not a workman under the said Ordinance.

17. In case ICI, Pakistan Manufacture Ltd., v. Muhammad Iftikhar Ahmad 1986 P L C 1133 Punjab Labour Appellate Tribunal, Lahore, held that supervisor purchaser was not a workman. It was observed. "It is thus apparent from the above discussion that the little manual or clerical work which the respondent had to do was either casual or ancillary to his main duties and, therefore, did not bring him in the pale of the definition of workman defined in section 2(i) of the Standing Orders) Ordinance, 1968 or clause (b) of section 2(xxviii) of the I.R.O. 1969. In view of the fact that the salary of the respondent was Rs.1,800 and that his main duty was supervisory and little clerical work done by him was not the main duty, he was not covered by section 2(xxviii) of Industrial Relations Ordinance, 1969, and section 2(i) of the Standing Orders Ordinance, 1968 and thus the Labour Court had no jurisdiction. The learned lower Court did not go into the details and thus, fell in error in holding the respondent as a workman.

18. In view of my said finding, I need not dilate further. For the foregoing; reasons, the petitioner has failed to prove himself a workman. He is, therefore, not competent to invoke the jurisdiction of this Court under section 25‑A of the Industrial Relations Ordinance, 1909. In the circumstances, the petition is found without any merit and is hereby dismissed, leaving the parties to bear their own costs. M.Y.H./644/Lb.P Petition dismissed.