2002 PLP 1 (PLC)

SAIYED SAEED ASHHAD, C.J.‑‑‑In the Constitutional petition the petitioner has sought the following reliefs:‑‑ "(i) Set aside the First, Second and Third Impugned Orders; (ii) declare that the respondent No. l was not a worker or workman and as such could not file a grievance application before respondent No.2; (iii) suspend the operation of the First, Second and Third Impugned Orders until the disposal of this petition; (iv) Grant cost; and (v) any other, better or further relief that this Hon'ble Court may deem fit to grant in the facts and circumstances of the case." The brief facts which compelled the petitioner to file this Constitutional petition are that respondent No. l was appointed as Accounts Assistant vide letter of appointment dated 13‑10‑1985 and his service was to be governed by the terms and conditions embodied in the said letter of appointment which also spelt out the duties and responsibilities of respondent No.

1. Subsequently, respondent No. l was promoted/re‑designated as Imports Officer and his salary was increased. Thereafter, he was terminated from service vide letter, dated 30‑9‑1998. Respondent No. l feeling aggrieved with the termination of his service served a grievance notice on the petitioner asking the petitioner to reinstate him in service and on their refusal to reinstate him filed a grievance application under section 25‑A of the Industrial Relations Ordinances, 1969 (hereinafter referred to as the "Ordinance of 1969") in the Court of First Sindh Labour Court, Karachi, which was allowed by order, dated 21‑9‑1999 ordering his reinstatement in service with full back benefits. The petitioner feeling aggrieved and dissatisfied with the said order filed an appeal before the Sindh Labour Appellate Tribunal, who vide its decision dated 31‑10‑2000 dismissed the appeal and upheld the order of the First Sindh Labour Court, Karachi. Again feeling aggrieved and dissatisfied with the said order, the petitioner has challenged the same by way of this Constitutional Petition: We have heard the arguments of M/s. Qazi Faez Isa and Ch. Rasheed Ahmed, learned counsel for the petitioner and respondent No.

1. Both the First Sindh Labour Court, Karachi and Sindh Labour Appellate Tribunal in deciding the grievance application filed by respondent No. l and appeal filed by the petitioner had come to the conclusion that from the evidence adduced by the parties it was established beyond any reasonable doubt that respondent No. l throughout his service in the establishment of the petitioner was a workman as the functions performed by him were clerical and/or manual in nature. The only question to be decided in this Constitutional Petition is whether respondent No. l was a workman or was performing supervisory or managerial duties so as to be excluded from the definition of workman as provided in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as "the Ordinance of 1968") so as to be entitled to invoke the jurisdiction of the Labour Court under section 25‑A of the Ordinance of 1969. This question is to be decided basically on the actual work performed by, respondent No. l in the establishment of the petitioner and not on the basis of the designation of the office or name of the post held by him. It is the case of the petitioners that during his entire period of service in their establishment, respondent No. l was performing superisory/managerial functions and further after re‑designation he was provided additional and extra benefits and facilities, which were not available to a workman, as such the petitioner were not required to have recourse the provisions of Standing Order 12 for terminating the service of respondent No. l as he was never governed by the provisions of the Ordinance of 1968 as ‑was evident from the contents of his appointment letter. On behalf of respondent No. l it was submitted that respondent No. l was a workman and after his promotion/re‑designation continued to be a workman and though he was promoted or re‑designated as Imports Officer yet he continued to perform manual or clerical work and duties. It was submitted that right from the date of his appointment as Accounts Assistant till the termination of his service on 30‑9‑1998 respondent No. l never performed managerial or supervisory functions. It was further submitted that the payment of high salary or providing a car for his use did not in any manner reflect that he was an officer or was performing managerial or supervisory functions when in fact he performed clerical and manual functions. It was further submitted that the amount of salary or emoluments paid to an employee was no consideration for determining whether he was a workman or an officer. As has already been submitted by the learned counsel for the parties the test for determining whether an employee was workman or an officer is not the designation or the post held by such an employee but the nature of work which was being performed by him or the salary/emoluments. An employee might be holding a post, which from its designation would appear to be a supervisory or managerial post but if he mainly performed manual or clerical work then such an employee would fall within the definition of a workman. On the other hand, if an employee did not hold a post the designation of which suggested it to be a supervisory or managerial post but the incumbent thereof mainly performed supervisory and managerial functions then such incumbent would not be considered to be a workman. In the light of the above it now requires examination as to whether respondent No.1 during the course of his employment in the establishment of the petitioner performed clerical and manual function and was a workman inasmuch as Mr. Qazi Faez Isa, the learned counsel for the petitioner vehemently assailed the orders of two forums below on the ground that they had completely misread and misconstrued the evidence on record in holding that it conclusively established that respondent No.1 throughout his service in the establishment of the petitioner was performing clerical and/or manual work and at no stage performed supervisory or managerial functions, while Ch: Rasheed Ahmed, the learned counsel for respondent No.1 submitted that the evidence adduced was sufficient, satisfactory and credible to hold that respondent No.l was a workman and the two forums below did not commit .any illegality or irregularity in holding respondent No. l to be a workman and vehemently controverted the contention of Mr. Qazi Faez Isa that there was misreading and misconstruing of evidence. In view of the above it will be necessary to go through the entire evidence for determining whether the two forums below had correctly read and appraised it. The evidence before the trial Court consist of the affidavit‑in‑evidence of respondent No.1 and his cross‑examination by the representative; affidavit- in‑evidence of M. Iqbal Hussain, Chief Accountant/Manager Administration of the petitioner and his cross‑examination by the representative of respondent No.

1. A perusal of the affidavit‑in‑evidence of respondent No.1 reveals that he did not specifically state with regard to the exact work which was being performed by him after his promotion/re‑designation as Imports Officer and what he had stated therein was that his duties were along manual/clerical. He further stated that no one was working under him nor he had any administrative control over any worker or work. He admitted that he was provided vehicle of the company to undertake outdoor work of clearance of imported cargo. In his cross‑examination he stated that he used to prepare voucher, returns of income tax, wealth tax, challans of E.O.B.I. and social security besides submitting details of accounts before the auditors. He also admitted that he used to look after the bank affairs of the petitioner. He also admitted that he used to work on Saturdays as well as after duty hours for which he was not paid overtime or any extra emolument. He admitted to have received an increment of Rs.2,000 in 1997 and a further raise in salary of Rs.1,

500. He admitted that he was the Honourary Secretary of United Gymkhana and used to play cricket there. Respondent No. l in his cross‑examination admitted the preparation of certain vouchers, income‑tax and wealth tax returns and challans of E.O.B.I. and social security. It was submitted by Mr. Ch. Rasheed Ahmed that all the aforesaid work was clerical work inasmuch as the preparation of the vouchers and return was a mechanical, routine and stereotype work, which did not involve application of mind, bring into focus the intellectual faculty, or knowledge of any law or decision on controverted and disputed questions of fact' and a person who would be performing such functions would come. within the definition of a workman. This contention was vehemently refuted by Mr. Qazi Faez Isa who submitted that preparation of returns of income‑tax and wealth tax was not a mechanical, routine and stereotype work and any person who would be performing the aforesaid jobs definitely required knowledge of income‑tax and wealth tax laws inasmuch as in preparing the returns of income‑tax and wealth tax so many factors had to be taken into consideration. He further submitted that the preparation of challans of social security also involved knowledge of the social security law relating to the determination of question of the amounts payable to the Social Security Institution after taking into consideration several factors and exemptions available under the social security law. He further submitted that submission of details of the accounts before the auditors meant that the respondent No. l was being entrusted and was incharge of the accounts of the petitioner and after checking and examining them used to submit them to the auditors for their examination and such a work would not be entrusted to a workman as maintenance of accounts required knowledge of accounts and expertise in the field of accounting which was a specialised field. We have given due consideration to the arguments advanced by the learned counsel for the aforesaid parties and we are unable to agree with the contention of Mr. Ch. Rasheed Ahmed that the preparation of returns of income‑tax and wealth tax and challans or social security payments of a mechanical and routine process which could be performed by a skilled worker/workman. Preparation of income‑tax and wealth returns can never be considered to be a mechanical, routine or repetition process. In submitting returns of income‑tax so many factors such as the nature of income deductions by way of expenses and exemptions granted by the Income Tax Ordinance are to be considered. A person who has no knowledge of the income‑tax laws would not be able to decide as to what expenditures would be deductible from the gross income for arriving at the net income. Similarly he would have no idea of the exemptions granted by the law in respect of certain income from being charged to tax which is not to be included in determining the net income. Questions of personal allowance/exempt amount from being charged to tax is also to be taken into consideration. Similar exercise would be required to be undertaken by a person in filling the wealth tax returns. The Wealth Tax Act has provided exemptions to certain assets from being charged to wealth tax and a person who has no knowledge of the provisions of the Wealth Tax Act would not be in a position to claim exemption in respect of such assets. It may also be pointed out that some of the assets have been totally exempted while some have been partially exempted from being charged to wealth tax and all these factors cannot be decided by a workman. All the aforesaid jobs require application of one's mind. Intellectual faculty to the provisions of the statute, procedure, the instructions and the circulars of the C.B.R. which cannot be expected of a workman. Respondent No.l used to submit the accounts to the auditors. It means that he was involved in preparation of accounts of the petitioner for submission thereof to the auditors. It is pertinent to note that in his cross -examination respondent No.l stated that he also used to look after the bank affairs of the petitioner. Matters relating to the bank accounts are very secretive and personal in nature and if a person permits another person to look after and handle his bank affairs then he would be entrusting a great responsibility and reposing confidence in such a person. Bank affairs cannot be managed or handled by a layman and for this purpose a person has necessarily to possess knowledge of banking practice and procedure which a workman cannot be expected to have. We may refer here to the case of Ganga R. Madhari v. Standard Bank Ltd. and others reported in 1985 SCMR 1511, wherein an employee of the Bank who amongst other duties was entrusted with the duty to receive deposits and sign receipts which were not held to be manual or clerical work. It is also in evidence that after promotion/redesignation he had become imports officer and in this connection he was incharge of the imports of the petitioner. For performing this job he used to go to the port and other offices for clearance of the imported goods of the‑ petitioner which requires knowledge of certain provisions of Customs Act as well as of the S.R.Os., circulars and instructions issued from time to time by the Central Board of Revenue. Without such knowledge a person cannot be expected to undertake and perform the work of clearance of imported goods. Thus, the work of clearance of imported goods also cannot be considered to be manual work or was a routine and stereotypoe work which could be undertaken by any person. Respondent No.3 in obtaining with the clearance of the goods would have been required to deal with the import invoices, bill of lading, bill of entry and other shipping documents of which for a workman would be unknown documents. Respondent No.1 was being provided company's car for going to the port and other concerned offices for clearance of the imported goods of the petitioner and a driver was assigned to perform this duty. A workman cannot even think of using the company's car even for performing some outdoor work of the employer. Allowing an increment of Rs.2,000 on one occasion and of Rs.1,500 on another occasion in the salary of respondent No.1 very adversely affects the claim of respondent No.] of being a workman. Such high increases are allowed only to the officers/supervisors and not to a workman. It is also pertinent to note that in the letter of appointment, annexed to the petition, it has no where been stated that his service was to be governed by the labour laws which is a necessary requirement in respect of an appointment letter issued to a workman. Employer is required to specifically state that the services would be governed by the Ordinance of 1968 and other laws applicable to him. In the appointment letter dated 13‑10‑1985 paragraph ‑7 is related to dismissal and it will be useful to reproduce the same as under: "

7. Dismissal.‑‑If you are found guilty of disloyalty, divulging of business matters, disobedience working against Company's interests grant and corruption of every kind unauthorised commitments false representation of acting in any manner prejudicial to the interest of the Company, your services will be terminated without any notice or salary in lieu thereof will consequent damages payable to the company. A perusal of the above paragraph‑7 reveals that respondent No.l was to be dismissed in accordance with the provisions of the aforesaid pargraph‑7 and not in accordance with the .provisions of the Ordinance of 1968: This letter was duly signed by respondent No. l in token of acceptance of the terms and conditions. His dismissal was to be governed by the above. paragraph‑7, according to which, he could be dismissed/terminated without any, notice or payment of salary in lieu thereof if he was found guilty of disloyalty, divulging or business matters, disobedience working against company's interests, grant and corruption. This paragraph‑7 was in conflict with clause 5 of Standing Order 12 of the Ordinance of 1968 which provides that no permanent or temporary workman would be terminated on the ground of misconduct, which definition would include various allegations referred to in the said paragraph‑7, otherwise than in the manner prescribed in Standing Order

15. By signing the appointment letter without raising any objection to the contents of paragraph‑7, respondent No. l admittedly denied himself to be a workman and now it is not open to him to claim that he was a workman and carried on clericial/manual work. It may also be observed that respondent No. l in his cross -examination categorically admitted that he often used to work after office hours as well as on weekly holidays but was never paid any overtime either for working in the late hours or on weekly holidays. Non‑payment of overtime to any workman by the employer would amount to violation of the statutory provisions and would render him liable for action but there is nothing on record that respondent No. l ever made any complaint to the concerned authorities for non‑payment of the overtime for working after duty, hours as well as on closed holidays. This also clearly suggests that he was aware of his status in the establishment of the petitioner which was not a Paragraph 3 of the appointment letter dealt with leave permissible to respondent No.

1. According to this paragraph, respondent No. l was entitled to all closed Muslim holidays including bank holidays admissible to other staff members. It also. provided that after confirmation he would be entitled to 20 days earned leave, 10 days sick leave and 10 days casual leave for every completed year of service. Standing Order 8 of the Ordinance of 1968 deals with leave to a workman/worker and provides 14 holidays with pay, 10 days casual leave with pay and all festival holidays declared by Provincial Government with pay. A perusal of paragraph‑3 of the appointment letter and Standing Order 8 of the Ordinance of 1968 would show that, the various kinds of leave allowed to respondent No. l were not in conformity with the various kinds of leave available to a workman under Standing Order 8 of the Ordinance of 1968. This factor would also contribute to the circumstances of respondent No. l not being a workman as he accepted the entitlement of leaves as per the appointment letter of his entitlement to leaves. Mr. Ch. Rasheed Ahmed submitted that the petitioner did not bring on record sufficient and satisfactory evidence to establish that respondent No. l throughout his service in the establishment of the petitioner was doing supervisory or managerial job and did not perform any manual or clerical work whether skilled or unskilled and on their failure to produce such reliable and satisfactory evidence the two forums below were justified in holding respondent No. l to be a workman. This contention is without any substance inasmuch as when a person claiming himself to be a workman invoked the jurisdiction of a Labour Court under section 25‑A of the I.R.O. for redress of any of his grievance then the burden of proving that he was a workman/worker lies heavily on him and it was he who has to produce credible, reliable and satisfactory evidence to establish beyond any doubt that during the course of his service with the employer he was doing primarily and basically manual and clerical work. The Supreme Court in the case of Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others, reported in 1993 SCMR 488 observed that it was incumbent upon the workman to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. It will be appropriate to reproduce the relevant portion as under: " ....Coming back to the burden of proof, it was incumbent upon 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 witnesses in support of his contention. Evidence produced before the Labour Court was insufficient and unsatisfactory and on the basis of which finding given by Labour Court is proper and sustainable under the law. " In the present case respondent No. l did not produce any evidence either oral or documentary in support of his assertion of being a workman. In his affidavit‑in‑evidence also he did not spell out the exact manual or clerical work which he was performing and furthermore the description of the work which was being performed by him as disclosed by him in his affidavit‑in -evidence after close scrutiny was not found to be manual or clerical work even of skilled nature. In the circumstances the petitioners were not under any obligation to produce evidence to establish that respondent No. l was not a workman when no evidence was led by respondent No. l to prove that he was a workman. The Supreme Court in the case of Rana Mukhtar Ahmed v. Punjab Labour Appellate Tribunal and 2 others, reported in PLD 1992 SC 118 while considering the question whether an employee was a workman or was excluded from the definition of a workman observed as under: "In the instant case we find that the essential work that the appellant was doing was to supervise the work of the contractor and see that he was carrying out the work in accordance with the drawings etc. given to him, No doubt, the drawings of the project were handed over to him by the appellant and he would demarcate the area on which the digging etc. was to be carried out in accordance with the drawings but he was not the draughtsman or the person who made the drawings. Such a work, no doubt, would involve skill. But the work performed by him, did not involve any skill nor did he do any work of a clerical or manual nature. True enough he checked the bills and the measurements, but this work was largely of a supervisory nature and not involving personal exertion which are associated with the work done by the workers and the workmen. Hence, the High Court appears to be correct in holding that the pith and substance, of his duties was to supervise the work of the contractor and to see that it was carried out in accordance with the drawings handed over to him and the demarcations made. It was work that involved more application of mind and responsibility rather than the doing of some work of repetitive or routine nature. The appellant, it was stated before us, enjoyed the rank of Junior Officer, but there is no evidence on this score. Be that as it may a close scrutiny of his duties reveals that his work did not involve doing work of routine or manual nature but required application of mind and supervision of work done by others. Hence, the High Court was justified in upsetting the concurrent finding of the two Labour Courts below since their decision was not in accordance with law." It is quite possible that in performing some of the duties such as preparation of vouchers and accounts he might be doing some manual or clerical work but basically the greater, portion of the work performed by him was of supervisory and managerial nature. An employee who performed some clerical or manual work ancillary or incidental to or in addition to the supervisory and managerial duties performed by him would not become within the definition of a workman. In the case of Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others (supra) the Supreme Court observed that an employee could not be said to be a workman if his duties did not primarily entail clerical and manual work. In the cited case the employee used to attend Court work as the representative of factory, maintained the accounts of petrol, bottles and motor transport, maintained the accounts of subsidiaries of Shahi Bottlers and in addition to this he also used to operate photostat machine and do typing work thus claiming himself to be a workman and the employee was held to be not a workman. A similar observation was made in the case of Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore, reported in 1992 SCMR 227, wherein the Supreme Court pronounced that an employee whose duties did not predominantly involved manual or clerical work would not fall within the definition of workman. In the case of Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others reported in 1992 SCMR 505 the Supreme Court while considering the question as to whether an employee could be included in the definition of workman or was to be excluded observed that the essential and fundamental consideration for determining the question was neither the designation of the post nor the emoulments paid to the concerned employee but the nature of the duties performed by him. The Supreme Court further observed that the substantial part of the work or duties performed by the employee was of supervisory capacity but he also performed manual or clerical work ancillary or incidental to the supervisory work but such manual or clerical work could not bring him to the ambit of the definition of a workman. In the case of Pakistan Engineering Co.‑ Ltd. v. Fazal Beg and others reported in 1992 SCMR 2166, in deciding whether an employee was a workman or was outside the ambit of a workman the test laid down was whether the work involved physical exertion more or less as distinct from intellectual one or work involving decision on a higher or lower level. As it has already been observed above, while dilating on the nature of the duties of respondent No. l it has been held that basically and predominantly the duties performed by him involved application of mind, knowledge of statutes relating to income‑tax, wealth tax and social security which was more or less intellectual work and also involved decision‑making. As such respondent No. l on account of the duties performed by him in the establishment of the petitioner could not be said to be a workman. Mr. Ch. Rasheed Ahmed vehemently submitted that the two forums below had given a concurrent finding that respondent No. l was a workman and this Court in exercise of its Constitutional jurisdiction would not sit as a Court of appeal to reappraise the evidence and further that it would also not substitute the findings of the two forums below of its own findings in place of the findings given by the two forums below on the ground that the evidence adduced by the parties warranted a different view. In support of the above he referred to us the case of Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others, reported in 1993 SCMR

511. Mr. Qazi Faez Isa on the other hand submitted that finding of the two forums below was not based on proper appreciation of the evidence on record and was not just and proper and as such it could be set aside by this Court in exercise of its Constitutional jurisdiction. In this connection he submitted that both the forums below bad failed to dilate upon the duties performed by respondent No. l in the establishment of the petitioner which a close examination and scrutiny would reveal that respondent No.l was basically and predominantly performing supervisory/managerial functions but in doing so he also performed some manual/clerical work which was ancillary or incidental to the supervisory/managerial duties performed by him and as such would not fall within the definition of a workman. In support of his above contention he placed reliance on the case of Distribution Officer, Hoechst Pharmceuticals Pakistan (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal and 2 others, reported in 1993 SCMR 1282. In this case the Supreme Court pronounced that this Court in exercise of its Constitutional jurisdiction could interfere with the concurrent findings of the Labour Appellate Tribunal if it was found that the same was based on misreading of the evidence or on extraneous material. The Supreme Court further pronounced that this Court in such circumstances could strike down the order passed by a subordinate forum as being without lawful authority and of no legal effect. A similar observation was made by the Supreme Court in the case of Muhammad Sadiq v. Punjab Labour Court No. l and another reported in PLD 1988 SC

633. On consideration of the foregoing discussion we find that the two forums below misread and misconstrued the evidence on record in holding respondent No.l to be a workman. The evidence adduced 1ky respondent No. l was not at all satisfactory, sufficient and reliable in establishing him to be a workman and both the forums below had erred in allowing his grievance application under section 25‑A of the I.R.O. as the same ought to have been dismissed on the ground that respondent No. l was not a workman and could not invoke the jurisdiction of the Labour Court under section 25‑A of the I.R.O. for enforcement of the provisions of Standing Order

12. Orders/decisions of the two forums below cannot be sustained. Accordingly, we admit this Constitutional Petition to regular hearing and allow the same. The orders of the two forums below are set aside and the grievance application filed by respondent No.l under ,section 25‑A of .the Ordinance of 1969 stands dismissed. Q. M. H. /M. A. K./G‑80/K Petition allowed.