1993 PLP 578 (PLC)

SYED KHURSHEED HYDER RIZVI, J.‑‑‑This petition calls in question the two orders passed by the learned Sindh Labour Appellate 'Tribunal, dated 6‑5‑1987 and Vth Sindh Labour Court, Karachi, dated 31‑1‑1983 whereby respondent Rashid Ahmed was directed to be reinstated in service with full back benefits holding that he was a workman. The facts, briefly stated, giving rise to this petition, are that respondent No. 1 Rashid Ahmed had filed an application under section 25‑A of the Industrial Relations Ordinance, 1969 before Vth Sindh Labour Court, Karachi praying for his reinstatement in service with full back benefits. According to him, he was serving with the appellant with effect from 5‑12‑1974 as a Distribution Assistant. He was confirmed by letters dated 6‑3‑1975 and 1‑1‑1976. He was also granted ex gratia payment equivalent to Rs.50 per month in addition to raising the applicant's salary as per Collectively Bargained Agreement. The respondent was treated as `workman' under the provisions of Industrial Relations Ordinance, 1969 and the (Standing Orders) Ordinance, 1968. He was also confirmed as Grade V employee. According to respondent Rashid Ahmed, the petitioner had graded the workmen of the Company from I to VII in ascending order and management personnel are graded after that. It is alleged that the respondent No. 1 was also a bona fide member of the Hoechst Employees' Union. That on 7‑1‑1980 he was promoted from Grade V to Grade VI as a Junior Officer. According to him, the Junior Officer in the petitioner‑Company concedes with the duly recognised Grade VI of workman. Subsequently, he was designated as Product Officer but, according to him, the label of Product Officer could not alter his legal status of a `workman' as he continued to work under the same officer namely Mr. Talha Siddiqui in the same department and that nature of his duties and work remained identical despite this change of his designation. His services were terminated on 10‑9‑1981 by a letter dated 9‑9‑1981 without giving any show‑cause notice or making any enquiry against him. The petitioner denied the case of respondent No. 1 that on promotion as Product Officer, he continued to be a `workman in the Company. It was stated that the duties performed by him as Product Officer were neither manual nor clerical in nature within the meaning of `workman. We have heard counsel for the parties and have also examined the material available on the record. The definition of the `workman' as given in section 2(a) of the West Pakistan (Standing Orders) Ordinance, 1968 is 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 of reward:' The Vth Sindh Labour Court as well as Labour Appellate Tribunal have held respondent Rashid Ahmed as a `workman'. 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 the authorities on the point show that the test for determination of the question whether a person is or is not `workman' wholly depends upon the nature of duties for which he has been employed to perform which must be skilled or unskilled, manual or clerical in nature. In Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511 it has been held: "The meaning assigned to the said word in Ordinance (VI of 1968), makes it abundantly clear that a `workman' as defined in that Ordinance, is a person employed merely to do manual or clerical work, whether it be skilled or unskilled. This definition completely excludes from its ambit persons employed in supervisory, administrative or managerial capacity and makes it amply clear that the duties of a workman have nothing whatsoever to do with the control or management. Nor do they involve taking any initiative or making decisions and are, more or less, of routine and repetitive in nature, In another case reported as Zubair Ahmed v. Sindh Labour Appellate Tribunal, Karachi and another (PLD 1985 Karachi 760) also it has been held: "Any person doing any skilled work or any unskilled work or any skilled clerical work or unskilled clerical would, therefore, be covered by definition of workman'." In yet another case reported as I.E. Saleh v. M/s. International Laboratories Ltd., Karachi and 2 others. (PLD 1975 Kar. 279) it has been held: "It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing the inferior work which is normally called manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of a specialised nature designed to achieve the end of promoting sales, entering in competitive field with other producers and finding best available markets Such type of labour cannot be called manual or clerical." In the case in hand, the Sindh Labour Court as well as Labour Appellate Tribunal have examined the evidence and have concluded that the respondent No. 1 is a `workman'. Since it is a question of fact, and the finding recorded by the Labour Court has remained in field undisturbed by the Appellate Tribunal, this question cannot be dealt with in this Constitutional petition. In this connection, reference may be made to the decision reported in PLD 1988 SC 180 (Security Paper Limited v. Sindh Labour Appellate Tribunal and another). In view of the fact that the question involved in this petition is a question of fact which cannot be dealt with in a Constitutional petition, we dismiss this petition. H.B.T./H‑354/K Petition dismissed.