1992PLC271 (PLP)

This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. III at Karachi, dated 4-5-1991 whereby the grievance petition filed by the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Mehmood A. Ghani for the appellant and Mr. Raja Shamsuzzaman for the respondent and I have also gone through the record and proceedings of the case.

3. The brief facts of the case are, that the respondent initially appointed the respondent as stitcher. He was admittedly promoted as technical supervisor. The appellants however contend that the promotion of the respondent as technical supervisor was on trial basis in June 1990 and that he himself, after working a few days as technical supervisor, approached the management and requested the management to be allowed to work as stitcher as he was unable to perform the work as a Technical Supervisor which request was allowed by the appellant. However, on--18-8-1990 the respondent was charge-sheeted for refusing to work as stitcher and domestic enquiry was held in which he was alleged to have been found guilty and consequently he was dismissed vide order dated 17-9-1990. Aggrieved by this order the respondent served grievance notice upon the appellant and then filed grievance petition.

4. It is not disputed that the respondent used to attend the factory of the appellant and used to punch attendance card every day. The respondent claims that he was promoted as technical supervisor on permanent basis and had nothing to do with the work of stitching, whereas the appellants claim that the respondent was promoted on trial basis and as he showed his inability to work as technical supervisor he was allowed to work as stitcher, which work he performed for a few days, but from 30-7-1990 he refused to work as stitcher though he punched card daily. It may be relevant to reproduce the relevant part of the charge-sheet:- "You were appointed as a Stitcher and you were working in Stitching II Department. You were asked to perform work of a Technical Supervisor with increase in salary. However, for a few days, you worked as Technical Supervisor but during this period you did not show any interest in your work and thereafter you orally requested that you be retransferred back to your stitching II Department as a stitcher, you were allowed accordingly. You worked on your previous job from 24th to 29th July, 1990 but since 30th July, 1990, you have stopped working and you are only punching your attendance card but you thereafter did not perform any work. You are, for all intents and purposes, absent without permission since 30th July, 1990, as merely punching the card without performing work is not sufficient. You are also causing loss and damage to the Company by your refusal to perform work. You are also committing wilful disobedience of your superiors by not performing your work."

5. It may be pointed that neither there is any order in writing promoting the respondent as technical supervisor nor is there any order in writing reverting him back as stitcher. Both the orders are oral orders. Both the parties admit the first order, whereas the respondent denies the second order.

6. Mr. Mehmood A. Ghani contends, that if the respondent was stitcher, he was admittedly workman but he admittedly did not perform the duties of workman sine 30-7-1990 and therefore charge stood proved against him. In alternative it is contended, that if the respondent was technical supervisor as alleged by him, he has not proved that 'as technical supervisor he was doing any manual or clerical work skilled or unskilled, so as to bring him within the definition of workman and as respondent admits, that he was supervisor drawing a salary more than 800 he would be excluded from the category of workman, and therefore, he could not move the Labour Court under section 25-A of I.R.O., 1969 for reinstatement in service. Mr. Mehmood A. Ghani has relied upon several authorities. In the case of Pakistan National Oils Ltd., Dacca v. The Chairman, Second Labour Court of East Pakistan and 2 others 1970 PLC 733, Earstwhile High Court of East Pakistan had set aside the judgment of Labour Court who had held that a supervisor who did not perform the managerial or administrative work and had no power to appoint or dismiss any of his subordinates was worker. It was held by the learned Division Bench of the High Court, that mere absence of power, in discharging duties of a supervisor of Manager or Administrator, of appointment and dismissal did not exclude him from the category of the excluded persons as mentioned in sub?-clauses (i) and (ii) of clause (v) of section 2 of the Standing Orders Act, 1965 and as such he would not be entitled to the benefits under section 19 of the Act. In the case of Pioneer Insurance Co. Ltd. v. Presiding Officer, Labour Court No. V, Karachi, 1978 PLC 293, this Tribunal held "where the employee approached the Labour Court claiming himself to be workman the burden of proof, would, lay upon the employee to establish himself as a workman co entitle him to apply under section 25-A.

7. It is settled law that it is not the designation or amount of salary, which determine the character of employee as a workman but nature of duties performed by him, would determine whether he was workman or not. In the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 their Lordships have observed: "Employees, who are not workmen within the meaning of the Ordinance, may be subdivided further into the following two classes: (i)???????? those who are officers, that is to say, who have got directional and controlling power; and (ii)??????? those who may not possess any such power yet not be workmen because the nature of duties required to be performed by them does not involve manual or clerical labour. A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of `workman'. The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of `employer' then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of `workman', namely, skilled or unskilled, manual or clerical labour" need not have been mentioned in the definition. 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 clerical work is incidental to the main work or a substantial part of it, as 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."

8. It is argued by Mr. Raja Shamsuzzaman that the appellant had not challenged the contention of the respondent that he was a workman and therefore it was not necessary for him to have produced any evidence to show that he was doing manual or clerical work skilled or unskilled even as technical supervisor. On the other hand Mr. Mehmood A. Ghani contends that the appellant had accepted the status of the respondent as workman in his capacity as stitcher but they had never accepted the respondent as workman in his capacity as technical supervisor. He has drawn the attention of this Tribunal to the grievance petition itself. He has referred to para. 1 of the grievance petition, grievance notice and affidavit-in-evidence of the appellant in which he has stated that he was permanent worker employed in the respondent mills on or about 1-1-1988 as a stitcher and was earning about Rs.5,000 per month as his average wages. In the second par a. of the above document he claims to have been promoted to work as Technical Supervisor but he has not described himself as a workman. In para 2 he contends that he was promoted to work as Technical Supervisor to check the quality of Singer stitching and to make the design/samples and his salary was fixed Rs.2,400 per month basic excluding all other allowances. In this para the duties of the respondent as Technical Supervisor appear to be of supervisory nature. He has not stated anywhere he worked manually to make design/samples or that he had to do any manual or clerical work skilled or unskilled. He has not elaborated what he meant by making design/samples and whether it was pith or substance of his duties or it was ancillary or incidental to his main duties as Supervisor.

9. I have already pointed that it was admitted fact that the respondent was promoted as Technical Supervisor. There is only word of the appellant that he himself showed his inability to work as Technical Supervisor therefore he was allowed to work as stitcher. There is no order in writing reverting the respondent as Stitcher. No satisfactory reason is shown as to why the respondent should have himself requested to be reverted to a lower post. If he had himself requested to be posted back as Stitcher, it also does not appeal to reason why he should have refused to work as Stitcher. Under the circumstances I am inclined to believe that the respondent continued to work as Technical Supervisor. As pointed above the evidence on record shows that the duties of the respondent were of Supervisor and he was doing job of supervisory nature and drawing pay more than Rs.800 per month and therefore it was for him to prove that he still continued to be workman even after promotion. I have already pointed that he has not given any derailed evidence about the nature of his duties whether it involved manual of clerical work, skilled or unskilled and whether such work was main part of his duties or it was ancillary or incidental to his supervisory duties. No such question has been suggested even to the witness for the appellant. There appears to be force in the argument of Mr. Mehmood A. Ghani that appellant had not admitted that the respondent was a workman even as Technical Supervisor. There being no evidence, which could bring the respondent as Technical Supervisor within the ambit of definition of workman, therefore in his capacity as Technical Supervisor the respondent could not move the Labour Court for reinstatement under section 25-A of I.R.O., 1969.

10. However, on the other hand if it is held that the respondent was Stitcher then admittedly he did not perform his duties as Stitcher. There is sufficient evidence in the enquiry proceedings that he was asked to work as Stitcher but he did not do work. Thus the charge that he refused to work/perform duties and thus caused loss to the appellant stood proved. Mr. Mehmood A. Ghani has also relied upon the case of Nazar Muhammad v. Divisional Superintendent, Pakistan Railways, Rawalpindi and another 1985 PLC 579 where the learned Labour Appellate Tribunal Punjab had observed that "since the appellant refused to obey the order of calling the members of the running staff, he is being rightly treated as absent for the purpose of pay. He has not been locked out. An employee who refused to do his duty cannot be said to be present in his duty. Mere physical presence is not sufficient when one refuses to do duty. The petition has been rightly dismissed". It is contended that mere fact that respondent punched his card daily would not make respondent present in the premises but the respondent would be deemed to have been absent as he refused to perform his duty as Stitcher.

11. Considering all the facts discussed above, I allow the appeal and set aside the impugned order of the learned Labour Court. H.B.T./1995/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal allowed.