1984 PLP 352 (PLC)

SYED HAIDER ALI PIRZADA, J.‑This judgment will dispose off Cons titutional Petitions Nos. D‑521/11 and D‑168/82, as the common question of law involved in both these petitions are same. These petitions under Article 9 of the P. C. O. have been filed against the orders, dated 4th February, 1981 and 17th January, 1982 passed by the Sind. Labour Appellate Tribunal, respondent No. 1 in Appeals Nos. KAR-745/80 and KAR‑713/81 filed under section 37(3) of I. R. O. by Rice Export Corporation of Pakistan Ltd., and by Riazul Haq, the petitioner in. Constitutional Petition No. D‑168 of 1982.

2. The facts giving rise to this D‑521 petition, briefly stated, are that petitioner was employed as Assistant Analyser since 9th April, 1973 in the respondent No. 2 corporation. The petitioner was charge‑sheeted on 19th May, 1979 for irregularities, namely (i) improper inspection of the consignments (ii) faulty analysis on the spot ; and (iii) acceptance of poor quality rice. The petitioner submitted. a detailed reply to the afore said charge‑sheet wherein he emphatically' denied the allegations contained in the charge‑sheet. The explanation of the petitioner was not con sidered satisfactory by the respondent No. 2 Corporation which ordered a domestic enquiry to be held against him. The enquiry was held by Muhammad Mustafa Khan, Manager (Super Inspection Karachi) who submitted a report on 25th June, 1979 with a finding that the petitioner wag guilty of the charges of misconduct. On the basis of the said report, second show‑cause notice dated 20th July, 1979 was served on the petitioner. The petitioner submitted reply to the said second show‑cause notice. The Secretary of the respondent No.

2. Corporation, by his order, dated 20th September, 1979 ordered the dismissal of the petitioner, with effect from 20th September, 1979.

3. The petitioner challenged the orders of his dismissal through a grievance petition filed before the learned Sind Labour Court No.

1. The grievance of the petitioner was that the enquiry was not properly and impartially held and he was not given sufficient opportunity to defend himself and that the findings of the Enquiry Officer are not based on evidence. The respondent Corporation resisted the grievance petition on the grounds firstly, that it was not maintainable as the petitioner/appli cant was not a "workman" for the purposes of the Standing Orders Ordinance, and secondly, that the allegations against the petitioner were duly proved in an impartial enquiry. The learned Labour Court disagreed with the findings of the Enquiry Officer that the charges against the petitioner bad been established and accordingly it set aside the order of dismissal of the petitioner and directed his re‑instatement in service with full back benefits. He also agreed with the contentions of the petitioner that he is a workman and he was covered by the definition of "workman".

4. Aggrieved by the orders of the learned Labour Court, Corpora tion filed an appeal under section 37(3) of the I. R. O., 1969 before respondent No. 1 who allowed the same holding, that the grievance peti tion of petitioner was not maintainable as he was not a "workman".

5. Constitutional Petition No. 168/82. The facts giving rise to this petition, briefly stated, are that the petitioner was employed as Food Inspector since 1976. While he was posted at Pasroor Railway Station as Food Inspector, in place of Naeem Waheed, Food Inspector who was on leave, he was charge‑sheeted on 22nd April, 1979 for committing irregularities and illegalities in respect of eleven consignments of rice from Pasroor. On the said charge he was dismissed from service, vide order, dated 11th December, 1979 on the basis of mare than one domestic enquiry that was held against him. The petitioner challenged the order of dismissal before the learned Court No. Vth Karachi which has dis missed the grievance petition, while its decision, given on 22nd November, 1981. The said petition was dismissed solely on .the ground that the petitioner was not a workman for the purposes of the said Industrial and Commercial Employment (Standing Orders) Ordinance, 1968., and consequently was not entitled to file and maintain grievance petition against the termination of his service under clause (3) of Standing Order 12 read with section 25‑A of I. R. O. , The petitioner filed appeal before the respondent No. 1 which was dismissed in limine.

6. Aggrieved by the aforesaid orders the petitioners have filed these Constitutional Petitions. We have heard Mr. Shafiq Qureshi, learned counsel for the petitioner and Mr. Obaidur Rehman, learned counsel for the respondent No. 2, Rice Export Corporation of Pakistan Limited.

7. Mr. Shafiq Qureshi has raised the following contentions :‑ (i) That the petitioners are covered by the definition of "workman" as contained in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and hence they are entitled to file or maintain grievance petitions under clause (3) of Stand ing Order 12 read with section 25‑A of

1. R. O., 1969 ; (ii) Respondent corporation charge‑sheeted the petitioners and sub mitted to domestic Tribunal ; (iii) Assistant Analyser has been treated as workman by virtue of the two settlements entered with the Union which are annexed to petition as Annexures I and J."

8. It was strongly contended by Mr. Obaidur Rehman, the learned counsel for respondent‑Corporation, that the petitioner at the relevant time was holding the posts of Food Inspector and were posted at Pasroor Railway Station as sole representatives of the respondent‑Corporation and that they were responsible for purchase of rice from the dealers in accordance with the procedure and specifications and on their certificates signed and issued in the capacity of sole representatives of Corporation payment in lacs of rupees were made to the dealers and their certificates were final words for Corporation. It was further submitted that the duties required to be performed as Assistant Analyser/Food Inspectors were of supervising and managerial in nature and at no stage they were required to do any manual or clerical work.

9. In order to appreciate the contentions of the parties it is neces sary to produce section 2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the cross‑examination of the petitioner and para. 7 of the Instructions for Procurement of 1978‑79 Crop Rice from Punjab by wagons :‑ Section 2(i) of 1968 Ordinance reads as under :‑ Workman" means any person employed in any Industrial and Commercial establishment to do any skilled or unskilled, manual or clerical (work) for hire or reward." Para. 7 of the instructions for Procurement of 1978‑79 Crop Rice, Punjab‑‑‑ "

7. Inspection of Stocks "The inspection, check weighment, sampling of stocks to be pro‑cured at rail‑head shall be done jointly by Food Inspector of the Rice Export Corporation of Pakistan Limited and the Representa tives of the Provincial Government." (a) Inspection: (i) The lot to be accepted shall be accessible for inspection from all sides. In case it is not so, the consignment shall not be inspected at all. (ii) The entire lot is of uniform quality and weight as far as possible. (iii) The consignment of rice accepted does not exceed the rejection limit/limits provided for in the relevant specifications. (iv) Deliveries of rice shall be accepted in lots of 240/2501260 bags each in case of delivery by wagons. (v) After inspection of the stocks the Food Inspector of the Rice Export Corporation of Pakistan Limited shall decide about the quality and weight etc. However, in case of disagreement the matter shall be referred to the Deputy Manager of the Rice Export Corporation. of Pakistan Limited and District Food Controller of the Provincial Government for resolving the issue". Cross‑examination of the Petitioner "I was the only personnel 'of Rice Export Corp. posted at Pasroor Station although Mr. Maqbool Ahmed Dar, Deputy Manager used to supervise my work and he often came to station. One Mr. Khawaja Shahid Anwar, a Food Inspector of R. E. C. was also posted at Pasroor Station. Mr. Dar used to visit the station about two or three times a week. Mr. Dar had no office to sit in either at Pasroor or. Sialkot even at Lahore. Mr. Dar was Incharge of the entire Sialkot District. There were five procure ment centres in Sialkot District at that time. At each procurement centre there were posted one Inspector (or Assistant Food Con troller) and one analyst of Punjab Food Department and one Inspector (or Assistant Analyser) of R. E. C. It is correct that on 16th February, 1979, 18th February, 1979 and 3rd March, 1979 I was also acting as Food Inspector of R. E. C. It is correct that weight and quality certificates were signed by two representatives of Punjab Government, one representative of dealers and one repre sentative of R. E. C. I produce three such certificates as Exh. 3‑D to 3‑F and they bear my signatures as representative of the Corpo ration. It is not correct that payments to dealers were made on the basis of these certificates. Actually, Food Inspector of A. F. C. used to prepare purchase bill on the basis of weight and quality certificates and payment was made on the basis of the purchase bill. Rice used to "be received at the station duly packed in bags. Loading and unloading is done by dealer who pays the labour. I have no knowledge that the dealer charges the labour expenses to the account of Corporation. It is not correct that this labour works under the supervision of Assistant Analyser. The main duty of Assistant Analyser was to obtain samples and submit them to Government Analyser, to count gunny bags at platform and in wagons, to check the stitching etc. I see instruc tions for procurement of 1979‑80 Crop Rice from Punjab by Wagons" of October, 1979. They were not supplied but we were expected to work according to them and according to other instruc tions conveyed to us by our supervisors from time to time. I did not attend the enquiry held against me. It is not correct that the enquiry was fair and impartial. I see my statement, dated 2nd June, 1979. It is correct. I produce it as Exh. 3‑G."

10. In support of his contentions Mr. Shafiq Qureshi has referred to PLD1982Kar.913,PLD 1961 SC 444apd1979SCMR318.

11. It is to be considered whether the petitioners are workmen for the purpose of the said Ordinance, since their claim is based on the provisions of Standing Order 12, particularly clause (3) thereof. In order that an employee should be a workman for the purpose of the said Ordinance, the nature of his work must be either manual, weather skilled or unskilled, or clerical. According to this definition a "workman" is employed in an industry or commercial establishment to do skilled of unskilled work. which is manual or clerical. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. 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, imagina tion, direction, control and supervision in discharging the same. The true nature of duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his res ponsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report‑he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct immediate, and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him.

12. In the instant case the petitioners were appointed by the respon dent Corporation as Assistant Analyser and at the relevant time they were working as Food Inspectors at Pasroor Railway Station. Their duties are detailed in para. 7 of the "Instructions for procurement of 1978‑79 crop rice from Punjab by Wagons" which is at page 133 of the Labour Court's record and also admitted in his cross‑examination reproduced in para. 7 hereinabove. He himself admitted in cross‑examination that he was not doing any manual or clerical work. We have no hesitation in agreeing with the respondent No. 1 that the petitioners were not workmen and they are not covered in the definition of the term in the said Ordinance.

13. We are also in agreement with judgment of D.B. of this Court in P L D 1982 Kar.

713. In this case the burden wasp on the respondent Corporation to prove that the petitioners was not workmen and this burden was discharged. The D. B. authority lends support to the view that we have taken looking to the duties which the petitioners were required to perform and their status, they cannot be considered to be "workmen" for the purpose of the said Ordinance;.

14. The upshot of the above discussion is that these Constitutional Petitions fail. We accordingly dismiss the same but the parties have to bear their own costs. A. E. Petition dismissed.