1988S68 (PLP)

DAVID IQBAL, J.‑‑Muhammad Sadiq appellant in this case was appointed on 20th April, 1971 as a confectionery cook by General Manager, Hotel Intercontinental Lahore (hereinafter called the respondent) or, a monthly salary of Rs.425 which included basic pay and allowances. He was promoted as pastry chef on 15th October, 1972, and was confirmed against this post or 15th January, 1973. After his promotion he became incharge of four workers of the rank of confectionery cooks who were to work under him and the appellant himself began to take his meals in the officers canteen and used to sign in the officers attendance register. According to the record of the respondent the contribution to the union fund which used to be deducted from his salary was also stopped after his promotion. It is alleged that on 19th July, 1974 he quarrelled with the Chief Accountant of the hotel and attacked him by throwing a heavy flower vase at his face thus inflicting injuries on the head. A complaint to this effect was made against him and a case was registered under section 307, P.P.C. with the police. He was placed under suspension by the respondent or. the same date i.e. 19th July, 1974 and was dismissed from service on 22nd July, 1974. The appellant then filed an application under section 25‑A of the Industrial Relations Ordinance 1969 in the Junior Labour Court challenging the validity of the dismissal order on the ground that it had been passed contrary to the mandatory provisions of the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 i.e. he had been dismissed without any show‑cause notice and without holding any inquiry against him. The respondent raised objections to the effect that the appellant was not a 'workman' but was performing managerial functions as a member of the management of the hotel, and that since he was not a 'workman' within the definition of the term in the Industrial Relations Ordinance 1969 as well as the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, his application under section 25‑A of the Industrial Relations Ordinance 1969 was not competent. The Junior Labour Court vide its order dated 19th November, 1975 accepted the application of the appellant and ordered his reinstatement in service with full back benefits holding that he was a workman. This order was upheld on appeal of the respondent on 18th May, 1976 by the Punjab Labour Court No.

1. Thereupon, the respondent challenged both ‑the aforesaid orders by way of writ petition which was accepted by learned Single Judge of the Lahore High Court, Lahore on 30th September, 1976. Leave to appeal was granted in this case on 20th February, 1979 in order to examine as to whether the learned Single Judge was justified in proceeding under Article 199 of the Constitution to make his own assessment of the evidence and to record his own findings and reverse the concurrent findings at‑out the nature of the work of the appellant arrived at by the two Labour Courts below. It was argued by learned counsel for the appellant that under section 2 (xxviii) of the Industrial Relations Ordinance 1969 'worker' and 'workman' is defined as follows: "(xxviii) 'Worker' and 'workman' means any person not falling within the definition of employer, who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied,' and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid‑off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off, or removal has led to that dispute but does not include any person‑‑ (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." Again in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 under section 2(i) a 'workman' is defined as follows: "'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." It was next argued by the learned counsel that according to the evidence on record the appellant was a 'worker' or 'workman' under the respondent who had acted illegally in terminating his service without show‑cause notice and without holding a proper inquiry as against him. This according to the learned counsel was the finding of the Junior Labour Court which had recorded the evidence adduced before it by the parties. The Junior Labour Court came to this conclusion on the evidence of executive chef Mr. Akhtar Ali P.W.4 who had admitted in his cross‑examination that he was the main incharge of the kitchen and bakery and that the appellant was one of his subordinates. It was further submitted by the learned counsel that the salary of the appellant did not exceed Rs.800 inclusive of the allowances at the time of his dismissal but as was evident from Annexure R/4 the increase in his salary to Rs.850 became effective only from the date of his dismissal from service on 22nd July, 1974 and this had been deliberately done by the respondent in order to take him out of the definition of 'worker' or 'workman'. In this connection learned counsel took us through the finding of the Junior Labour Court which was to the following effect: "There is not a single document on the record to prove that the petitioner (the present appellant) ever employed or dismissed anybody. The type of record produced by R.W.2 has not been signed by the competent authority. So much so that there in no page marking and it cannot be relied upon. The admission of this witness that the copy of Exh. R/4 was not supplied to the petitioner (appellant) is a lacuna for which the respondent has no explanation." It was next submitted by the learned counsel that even if the salary was not to be considered as relevant, the appellant was still a 'workman' on account of the nature of duties which he was performing. There was evidence on the record to the effect that he would on occasions be expected to work with his own hands and it was also a finding arrived at by the Junior Labour Court that no documentary evidence was produced before him by the management about the duties of the appellant as a pastry chef. It was then submitted by the learned counsel that the Punjab Labour Court on appeal of the respondent made a further appraisal of evidence on record and had arrived at the following conclusion: "It transpires from the parties' evidence that although the respondent (appellant herein) used to take meals in officers' mess and used to mark his attendance in officers' register but he worked with his own hands for preparation of confectionery items. He had no power to hire and fire. His pay admittedly was Rs.850 but this included basic pay as well as allowances. Moreover, he was not employed in supervisory capacity and therefore the quantum of wage drawn by him has hardly any relevancy. In view of the above it is concluded that the respondent (appellant herein) is a workman under the Industrial Relations Ordinance 1969." However, despite the concurrent findings of the Labour Courts below to the effect that the appellant did not work in a supervisory capacity learned Single Judge in writ jurisdiction had erroneously made his own assessment of the evidence and recorded his own findings in reversal of the concurrent findings of the two‑Labour Courts when he arrived at the following conclusion: "In the present case there is the evidence of the respondent (appellant herein) himself showing his own promotion from the job of a worker to that of a supervisor. His own evidence showing that he was supervising the work of four persons, making reports against them complaining about their conduct and recommending disciplinary action. His own evidence shows that he was mainly to supervise the work and to assist in manual work only in exceptional situations when there was rush of work or it was not possible for the four employees to deal with the situation single handed or even collectively." It was also argued that the learned Single Judge had wrongly interpreted section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 when he arrived at the conclusion that to qualify as a 'worker' under the aforesaid Ordinance the work entrusted to the employee must be either manual or clerical and that the work of supervision was neither manual nor clerical and that therefore although the work of the appellant required skill, he could not fall within the definition of a 'workman' even under the said Ordinance. In support of his arguments learned counsel relied upon 1985 SCMR 1511 (Ganga R. Madhani v. Standard Bank Ltd. and others) in which it was held that under section 2(i) of the West Pakistan Industrial ‑and Commercial Employment (Standing Orders) Ordinance 1968 the definition of a 'workman' is that a person employed merely to do manual or clerical work, whether it be skilled or unskilled is a 'workman', and that persons employed in supervisory, administrative or managerial capacity were completely excluded from ambit of definition of 'workman', that duties of a 'workman' have nothing to do with control or management nor do they involve taking any initiative or making decisions and are more or less involved in work of routine and repetitive in nature, nature of work performed by employee was therefore the deciding factor in determining as to whether or not he was a 'workman'. Reliance was also placed on 1979 SCMR 304 (Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another) in which it was held that according to section 2(i) of the aforesaid Ordinance a 'workman' would inlcude chief accountant drawing monthly salary of Rs.1,050 and acting under instructions of incharge of accounts section of the company. He further relied on PLD 1981 SC 172 (Mufti Mushtaq Ahmed v. The Federation of Pakistan). In that case the appellant was appointed as Ticket Collector in Railways but at relevant time was performing duties primarily of a clerical nature in office of Station Master. There were charges relating to irregularities in the preparation of passes etc. for members of Railway staff served on the appellant in that case while performing such duties, held that these were served on him not in his capacity of Ticket Collector but in capacity of one performing clerical duties and thus he did not fall within the definition of 'workman' at the relevant time. The main argument of the learned counsel for the respondent in reply to the learned counsel for the appellant was that the concurrent findings of the Labour Courts below were not based on evidence on record and therefore the learned Single Judge while exercising his powers in writ jurisdiction was perfectly justified in reversing them. It was submitted that the evidence and the other material on the record clearly indicated that the appellant started his career as a confectionery cook about thereafter he was promoted as pastry chef with four confectionery cooks working under him. He himself had stated that before his promotion contribution was deducted from his salary for the workers union of the hotel by the management but after his promotion the payment of such contribution had stopped. It is also on record that at the relevant time the appellant was drawing Rs.850 as salary including allowances. Furthermore the nature of his duties at the time of the termination of his services indicated that these were of a supervisory character and not that of a worker. In the circumstances the appellant did not fall in the definition of 'workman' whether considered in terms of section 2(xxviii) of the Industrial Relations Ordinance 1969 or section 2(i) of the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance 1968. In that view. of the matter the respondent was not required to serve any show‑cause notice or hold an inquiry against him. According to him the learned Single Judge therefore was justified in arriving at the conclusion that since the appellant was not a 'workman' as such he could not take his grievance to the Labour Court, and that further the adjudication of his grievance by the Labour Courts was completely without any lawful authority. We have heard and carefully considered the arguments of the learned counsel for the contesting parties. We are of the opinion that 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 is manifest from the evidence E on record that the duties of the appellant at the relevant time were of a supervisory nature and since the nature of work performed by an employee is to be considered as the true criterion and the deciding factor in determining as to whether or not he was a 'workman', the learned Judge in the 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. The upshot is that there is no substance in this appeal which is accordingly dismissed, but there shall be no order as to costs. M.B.A./M‑504/S Appeal dismissed.