1998 PLP 139 (PLC)

2. The facts of the case in brief are that appellant Ehsan Danish was initially appointed as a welder on 23-6-1976. On August 13, 1990 he received Promotion Order in which he was shown to have been promoted as Executive VII in Management Cadre (E-VII) with effect from 1st July, 1990. He was to get his pay, House Rent and other Allowances amounting to Rs.2,575 per month + medical expenses, Attendance Allowance etc. His duties and responsibilities were shown to be as supervisor in the Job Description which he signed, and returned the duplicate, accepting the same. Thus, according to the appointment order, Job Description, and the duties assigned the appellant was no longer a welder but his duties were entirely supervisory in nature.

3. It also appears from documentary evidence brought on record that the appellant was assigned duties as executive and not as manual worker. In the extra time work sheets which bear his signature, his duties are mentioned as 'supervision'. Then there are documents to show that the appellant used to assign work to the welders and distribute them in various shifts. He also used to recommend the Leave Applications of the workmen under him. He also recommended payment of temporary advances to workmen. There is nothing to show that the appellant was doing manual work as welder. He was a supervisor and an executive according to the evidence produced on record.

4. As held by Supreme Court in National Bank of Pakistan v. Punjab Labour Court 1993 SCMR 672: "It is a well-established proposition of law that a person who approaches a Court on the basis of averments that he is a workman within the definition of clause (28) of section 2 of the I.R.O., the burden of proof lies on him and not on the employer."

5. Likewise in the case of Shahi Bottlers reported in 1993 SCMR 488, Sajjad Ali Shah, J. also observed: "Coming back to the burden of proof, it was incumbent upon the respondent No. 3 to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witness in support of his contention. Evidence produced before Labour Court was insufficient and unsatisfactory and on the basis of which, finding given by Labour Court is proper and sustainable under the law. "

6. In PLD 1992 SC 118, Nasim Hassan Shah, J. also observed that where clause scrutiny of appellant's duties revealed that his work did not involve doing work of, a routine or manual nature but required application of mind and supervision of work done by others -- appellant was not a workman.

7. In Karachi Shipyard case reported in 1993 SCMR 511, it was observed that the principle is well-established that the functions performed by the employee were of supervisory nature he would be excluded from the definition of workman.

8. The appellant himself has admitted in his cross-examination that this job was of supervisory nature. Under the circumstances, there is over whelming evidence to show that job of the appellant was not that of a manual worker but he was actually working as a supervisor and as Executive Officer in the Allwin Engineering Industries.

9. Mr. Latif Saghar for the appellant has argued that the appellant was essentially a welder and there were other officers Incharge of his Department but the burden is on the worker himself to establish that he was assigned duties according to Job Description which were manual or clerical in nature. This he has failed to do. On the other hand there is bulk of documentary evidence to suggest that the duties of the appellant were entirely supervisory and he did not do any manual work himself.

10. I can, therefore, see no reason to interfere with the decision of the Labour Court that the Application under section 25-A of the I.R.O. by the appellant was not maintainable since he had failed to show that he was a worker' within the meaning of the I. R. O.

11. In the result the appeal is dismissed. H.B.T./227/Lb.S Appeal dismissed.