2001 PLP 95 (PLC)

In reply the appellant showed his unwillingness to carry out his unfair/wrong instructions, if any. Thereupon, Mr. T.A. Mirza orally informed the appellant that his services were no longer required. Later on he also received the Termination Order in writing bearing the date of 5‑11‑1990.

2. Aggrieved by the aforesaid Termination Order which was in utter violation of law, the appellant served a grievance notice on the respondent on 19‑11‑1990 which was rejected by respondent's reply, dated 27‑12‑1990. He then approached the Labour Court having jurisdiction for redressal of his grievance. In their reply the respondent company inter alia took a stand that the appellant was not employed as workman in their establishment and as such his grievance petition not being maintainable was rightly rejected by the Labour Court.

3. In view of the conflicting versions of the parties with regard to the status of the appellant he was enjoying in course of the respondent's employment, the whole case revolved around the decision whether the appellant was workman or not. Answering this point in the negative the learned Labour Court dismissed the appellant's petition. Hence this appeal.

4. I patiently heard the lengthy arguments of the learned counsel of both the parties and also carefully perused every details of the Lower Court's order in the light of massive material brought on record as evidence in the case.

5. To begin with, I would like to reproduce hereunder the observations of Supreme Court borrowed from its judgment reported as PLD 1986 Supreme Court

103. The said observations read as under:‑‑ "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, so that, the fact 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. " Keeping the above observations in mind, I would now proceed to examine every such piece of evidence available on record which throws light on the status of the appellant during the respondent's employment. First of all his appointment Order deserves attention. It is in letter form at Exh.A.W.l/1, addressed to the appellant mentioning therein the details of terms and conditions on which his appointment was made. Admittedly his services were brought to an end under clause (6) of the said terms and conditions, which says that service may be terminated on one month's notice or on payment of one month's salary in lieu thereof. It is thus, clear from the appointment Order that appellant's employment in the respondent's company was rather a contractual service to be governed by the terms and conditions mentioned in the appointment Order. Had he been appointed as a workman the terms and conditions of his service would have been regulated by Standing Orders Ordinance. The appointment order further shows that he was appointed as Stores Officer in the Senior Confidential Staff Cadre and in that capacity he was required to perform such duties at such places in Pakistan as the company required him to serve from time to time.

6. The next important document is the' job description of Stores Officer (i.e. the position held by the appellant) which has been produced by the appellant himself in course of his cross‑examination at Exh.A.W.l/8. It is admittedly signed by the appellant. This document enumerates the duties the appellant was required to perform in the capacity of Stores Officer. Inter alia he was responsible for supervision and control of Sections' Heads Supervisors, Assistant Supervisors, Drivers and General Dlity Workers. I category of am afraid the person required to perform such functions cannot be put in the workman.

7. Mr. T.A. Mirza, the Manager of the respondent's company has stated in his affidavit and the appellant has not denied his statement, that though the appellant started in the company as Stores Officer in 1980, yet he took over charge of Scrap Disposal Section in March, 1983 from Mr. R.M. Gill who retired with effect from 1‑4‑1983. According to him right from his taking over the charge of Mr. Gill he remained designated as Superintendent of that Section until termination of his services. As pointed above the appellant also admitted himself that after taking over charge from Mr. Gill, he was doing the same job which Mr. Gill was doing. At this stage it may be beneficial to refer to a photo copy of the order, dated 27‑11‑1984 at Exh.R/1 of the same Labour Court when it was presided over by Syed Saeed Ashhad (now elevated as Chief Justice of Sindh High Court). In the said order Mr. Gill was held to be discharging supervisory and managerial duties. It was further held that merely because he performed some work of clerical nature such as preparing Invoices, issuing gate passes and receiving some material which was incidental to his main duties, his status could not change from Supervisor to workman. Since the appellant stepped in the shoes of Mr. Gill followings his retirement, the status determined for Mr. Gill in the aforesaid capacity would precisely be applicable even to the appellant. Thus, even on this count, the appellant cannot be held as workman.

8. Reference may now be made to some very significant admissions made by the appellant. According to his own admission there was Workers Union in the respondent's company but he was neither member of any such Union or availed any benefit flowing from periodical settlements made between the Union and the Company. As a workman the appellant could hardly afford to keep himself away from the activities of the trade union. It was also unbelievable that as a workman he would not avail the benefits of the periodical settlement arrived at between the trade union and the company. All this shows that he was not a workmen.

9. In course of cross‑examination the appellant was shown daily attendance report, overtime authorized sheet, Statements of temporary workers which, he admitted, were all prepared by charge hand and signed by him. He has also admitted the assertion of Mr. T.A. Mirza that he had right/power to hire and fire badli/temporary drivers and general workers. This admission on his part also finds support from job description (Exh.A.W./1/8) referred to above.

10. Apart from above it is appellant's own admission that during tenure of his employment in the company he made progress. In this connection reference to Exhs.A.W./1/9, A.W./l/10 and A.W./1/11 produced by the appellant clearly established the supervisory and administrative nature of his duties/responsibilities in 1980 as well as in 1983. I am inclined to believe Mr.. T.A. Mirza that preparation of 5 gate passes and 5 Deposit Notes on the average, besides other table work including the signing of the relevant papers by the appellant on any working day would not take more than half an hour and moreover that being the work incidental to appellant's main duties could not be held to determine the status of the appellant as a workman. It is also not denied by the appellant that clerical work of the Section was mostly done by the charge hand working with him.

10. After taking into consideration the above discussion I have come to an irresistable conclusion that appellant's status in the respondent's company was not of a workman and, therefore, the learned Labour Court has rightly dismissed his grievance petition. I find no error whatsoever in the Labour Court's judgment which is hereby approved. Consequently the appeal filed against the order of the Labour Court is dismissed. H.B.T./12/K (L. trib) Appeal dismissed