2000 PLP 175 (PLC)

(1) Whether the applicant is a workman ? (2) Whether the respondents Nos.1 and 2 are one and the same establishment or have separate entity ? (3) Whether the services of the applicant were terminated in violation of Labour Laws?

8. The learned Presiding Officer, after hearing the arguments of both the parties, held, under issue No. l that all the four respondents are workmen and on issue No.2 held that "the respondents Nos. l and 2 are one and the same establishment and respondent No.2 is functioning as subsidiary branch of respondent No. 1". While deciding issue No.3, it was held that in view of its findings, given on the abovementioned 'issues, the learned Labour Court allowed the applications of the respondents and directed that they be reinstated in service with back benefits.

9. On questioning by me, as to why only Pakistani Company has filed the above appeals, Mr. Shahani, learned counsel for the appellants submitted that the Foreign Company, on the date of decision, passed on the grievance applications, was non‑existent inasmuch as at an earlier point of time, the said Foreign Company, on its application bearing No. l of 1997 under Standing Order 11‑A of Standing Orders Ordinance, 1968 for closing down the establishment in Pakistan, was accorded permission to close down its business in Pakistan, by the same Labour Court No.5, by its order, dated 22‑11‑1997. It was further submitted by him that the impugned decision was passed only against one respondent i.e. Pakistani Company.

10. Dealing with issue No.1 which is said to be the main issue, whether the respondents are workmen within the definition of section 2(i) of the Standing Orders Ordinance, 1968, Mr. Tasnim, learned counsel for the respondents, placing his reliance on PLD 1986 SC 103, as also referred to by the learned Labour Court submitted that it is not the designation alone which should have been considered to be‑ a deciding factor for holding, one way or the other, whether an employee is a workman or not. It is the charter of duties and the nature of job which he performs during his employment. 1t will, therefore, be advantageous to reproduce the Hon'ble Supreme Court's observation in this respect, in the case reported as General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and another (PLD 1986 SC 103). In this authority, in fact, guidelines have been provided as to who is a workman or not. It is a Full Bench Judgment, which has been rendered by Mr. Justice Zaffar Hussain Mirza wherein the principle has been set in, the relevant portion whereof appears at page 111, which reads as under:‑‑ "

11. 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 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 feature, the pith and substance of his employment must be manual or clerical before the definition is attracted. " .

11. On the facts that have come on record, it appears that all the four respondents are workmen within the meaning of section 2(i) of Standing Orders Ordinance, 1968. It is supported by evidence. These respondents were working as Computer Operators exclusively. They were neither assigned nor, in fact, doing any managerial duty. These respondents, furthermore, had no power to grant leave to anybody else. They were, in fact, doing all the jobs by themselves and without the assistance of anyone else under the supervision of a Supervisor.

12. The respondent Noorullah Kazi, in para.8 of his affidavit in evidence (which is common to all the respondents) has stated that, "I reiterate that I was working as a highly skilled Computer Operator and used to perform my work purely on computer myself". Mr. Shahani invited my attention to his cross‑examination wherein the said respondent stated that, "I was not doing any managerial or supervisory duty". He wanted to stress upon me that he was not doing any manual work. I wonder, if the computer is operated without any manual labour. In present time, the computer science is so much developed that every one knows that the operation of computer requires both manual as well as skilled labour. Therefore, so tar as the present point is concerned, I am fortified in my view; on the basis of entire evidence which I read with the assistance of both the counsel, on the turn, that the job of computer operation is coupled with manual and skilled work. It Is the pith and substance of the respondents' job as observed by the I Hon'ble Supreme Court, laid down in PLD 1986 SC 103 and I am in full agreement with the learned Labour Court that the respondents are workmen, as provided in section 2(i) of the Standing Orders Ordinance, 1968.

13. As regards point No.2, wherein it hag, been held by the learned Labour Court that both the Pakistani Company as well as Foreign Company (respondents Nos. l and 2 in the grievance application) are one and the same establishment, learned counsel for the respondents, referring to Exh.R.W.l/2 at page 113, captioned as "Direction Memo." submits that the direction memo. shows that both the Foreign and Pakistani Company were the same. I think the inference drawn by him is not supported by the contents of the said exhibit. It is a direction memo written by the Managing Director of the Pakistani Company conveying information that one Mr. Iqrar Baig, who has been appointed as Manager, Human Resources and Administration and has taken charge on 11‑6‑1995 will be available to employees for review and consideration of all matters concerning Human Resources.

14. It is established on record that all the four respondents were the employees of the Foreign Company. Merely by issuing letter of appointment, dated 16‑11‑1994 under the signature of an officer of the Pakistani Company, will not make the respondents to be the employees of Pakistani Company for a number of reasons; firstly, the letter of appointment itself states that this appointment is being made for and on behalf of Foreign Company and secondly, the respondents all along, considered themselves as employees of Foreign Company. The letters of confirmation of their appointment were also issued by the Foreign Company. The letters of termination of their services too were issued by the Foreign Company. The cheques in full and final settlement of their dues, as alleged, were issued by the Foreign Company. Retaining one month's salary for the month of September, 1995 and returning the balance by the respondent was all to the Foreign Company. The grievance notices had been issued to the Pakistani as well as Foreign Company. The grievance petitions were also filed against both the respondents and so on and so forth.

15. All these facts, taking together, clearly show that according to the respondents themselves, both the Companies had distinct identity. It has been specifically admitted by the respondents in the evidence in cress‑examination that they were employed for and on behalf of the Foreign Company and that they worked all along for the Foreign Company. These and several other averments, on record, go to prove that the respondents/employees all along treated the Foreign Company to be their employer. Mere fact that the office of the Pakistani Company end the Foreign Company situated in the same building at Islamabad (not Karachi) would not make them as one establishment. It is pertinent to note, as submitted by Mr. Shahani, that the Pakistani Company is a Joint Stock Company registered under the Companies Ordinance, 1984, established as long back as 1990, whereas the 'Foreign Company was established only as an "Agency" in 1994 after getting a contract from Central Board of Revenue, Government of Pakistan for re shipment inspection of imports. It, therefore, appears that the Foreign Company was a "Commercial Agency" which had its registered office in Geneva (Switzerland). In fact, the contract was between the Government of Pakistan and the Foreign Company for "pre‑shipment inspection of imports to Pakistan from foreign countries" whereas it has come in evidence that the Pakistani Company was engaged in "pre‑shipment inspection of exports from Pakistan to other countries". Precisely speaking, both the companies were engaged in their business activities and affairs in two different directions. Admittedly, the respondents were appointed under the designation of Import Officers. This business was mainly concerned with Foreign Company and not the Pakistani Company. I am therefore, clear in my mind that the Pakistani Company and Foreign Company are two different entities and establishments within the term of section 2(c) of the Standing Orders, Ordinance 1968, which relates to commercial establishment only.

16. Reliance was placed by Mr. Shahani on Muhammad Aqil, v. Sindh Labour Appellate Tribunal (PLD 1974 Kar.25 at page 254) which was also reported in PLD 1984 Kar.

292. Mr. Shahani, concluding his submissions, on the point, refers to para.1 of the grievance petition, wherein it has been specifically stated that the respondents were employed on, behalf of the Foreign Company, w.e.f. 5‑12‑1994.

17. In view of clear admission, by the respondents, it will not be available to the respondents to claim themselves to be the employees of Pakistani Company.

18. Learned counsel for the appellant, as the last leg of his arguments, invited my attention to an order, dated 22‑11‑1997 passed by the learned Labour Court No. 5, granting permission to the Foreign Company for closing down its business ' in Pakistan. In fact, the Government of Pakistan had terminated the Foreign Company's contract by giving three months' notice in accordance with the contract. Thus on 11‑3‑1997, the appellant's contract stood terminated and its business in Pakistan came to an end and the Foreign Company was left with no option, but to close down its establishment in Pakistan. The Foreign Company, having thus decided to wind up its business in Pakistan, terminated the services of almost all its 64 employees except the four respondents, who had chosen to get the matters settled in the Court of law.

19. Mr. Tasnim submitted lastly that Standing Order 12(3) of the Standing Orders Ordinance, 1968 provides for termination of employment of a permanent' workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. It is further provided in clause (3) thereof that the services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicity ,state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25‑A of the industrial Relations Ordinance, 1969.

20. Mr. Shahani, in reply, refers to the terms of appointment regarding termination of service that the services can be terminated by either side upon one month's notice or one month's pay in lieu thereof and it will be read into the termination letter because the letter itself stated that, "you are apprised that your contract of employment, dated 16‑11‑1994 is hereby terminated within the terms of the said contract".

21. It has been held by me that the Foreign Company was separate establishment and the respondents were the employees/workmen of the Foreign Company. I do not think it proper to dwell anymore on the question as the Foreign Company is not before me.

22. In view of the above, the question of reinstatement and back benefits, against the appellant, does not arise. The respondents will, however, be free to seek their remedy against the Foreign Company, if so advised and permissible in law.

23. In result, the appeal is allowed. Announced in open Court, this the 2nd day of March, 1999. H.B.T./287/K/Lab. (Trib.) Appeal allowed.