1991 PLP 126 (PLC)

(2) to declare the applicant as the permanent employee of the Corporation; (3) to pass an order directing the respondent to treat the applicant in service with and to pay full back benefits; (4) any other further, better and proper relief which this Hon'ble Court may deem fit under the circumstances of the case may please also be awarded."

3. The appellants resisted the grievance petition on the ground that the respondent was an officer and as such the application under section 25-A, industrial Relations Ordinance, 1969, was not maintainable. It was further contended that the respondent was a temporary employee and was nut entitled to concessions admissible to the permanent employees. The learned Labour Court partly allowed the grievance petition of the respondent. The operative part of the order is reproduced hereunder:- ?????????? "... the application is allowed for the prayers that the applicant be allowed earned leave and compensatory leave as per Regulation. 30 of the National Shipping Corporation (Established Officers) Service Regulations 1965 and the applicant is treated in service of the respondent Corporation till his services are legally terminated by the respondent...

4. Being aggrieved by this order, the appellants filed Appeal No.KAR-28 of 1990 whereas the respondent filed Appeal No.KAR-13 of 1990. I propose to dispose of both the appeals by this single decision.

5. I have heard Mr. Mushtaq Ahmed Shaikh, learned counsel for the appellants and Mr. Agha Faqir Muhammad, learned counsel for the respondent and have also gone through the record and proceedings of the case.

6. It is not disputed that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are not applicable to the employees of the appellants as the application of this Ordinance has been specifically excluded under section 3 of Pakistan National Shipping Corporation Ordinance, 1979. However, it will be evident that the application of the provisions of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance) has not been excluded under the provisions of the Pakistan National Shipping Corporation Ordinance, 1979. The employees of Pakistan National Shipping Corporation are also not excluded from the application of the Industrial Relations Ordinance, 1969 under subsection (3) of section 1 of the I.R.O., 1969. Thus, if the respondent has been able to show that he was a workman as defined under the Ordinance, he would have a right to invoke the jurisdiction of the Labour Court under section 25-A of the Ordinance for the enforcement of the rights guaranteed under Pakistan National Shipping Corporation Ordinance or the Rules and Regulations referred to above.??

7. The definition of `workman' under the Ordinance as defined in section 2(xxviii) is very wide and includes all the employees who are not employers and who do not hold any administrative or managerial post or who are not employed in a supervisory category drawing salary of more than Rs.1,

000. Admittedly, the respondent is not an employer and he does not hold any post of administrative or managerial nature. Mere designation as an officer would not be conclusive to exclude the respondent from the category of workman. In the case of Ganga R. Madhani v. Standard Bank Ltd., reported in 1985 S C M R 1511; it has been held that "nature of work performed by employee was deciding factor in determining is to whether or not employee was a `workman'." Similar view was taken by a earned Division Bench of Sindh High Court in the case of Rab Nawaz v. Sindh Labour Appellate Tribunal, reported in P L D 1987 Kar.

175. In the case of security Paper Limited v. Sindh Labour Appellate Tribunal, reported in P L D 1988 S C 180; their Lordships of the Supreme Court have observed, 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. 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 of 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."

8. The duties of the Deck Cadets are contained in the Instructions to Deck Cadets in the Book of Instructions issued by the appellants to the established officers. It enjoins the Deck-Cadets that on board ship they must obey every order of the Master, Chief Officer and any other Officer in whose charge they are placed and that all orders are to be carried out forthwith and without question and respect to be given to all senior officers on board. They are also required to clear their own cabins, make up beds, attend to their clothes and shine their own shoes. They are also expected to learn all the Jobs connected with the routine of a ship at sea and in port the magnetic compass navigation lights; types of ropes and wires; types and quality of canvas; knots and whipping; splicing ropes and wires; sewing canvas sails as well as tarpaulins and awnings; worming, parcelling and serving with emphasis on the use of serving mallet; wire seating; chipping, scrapping, painting cleaning of holds and bilges, care and upkeep of cargo appliances running gear, use of dunnage. They are also required to lower and hoist life boats, handling of life boats under ears and sails; lowering of a fitted telescopic top masts and hoisting top masts and guiding and securing them from sea; handling heavy lift derricks; more responsible functions in tophing, correct plumbing and guying of derricks. In the third and fourth years, they have been given responsible duties in regard to steering the ship, cargo handling appliances etc. These instructions do not indicate that their work was of any supervisory nature. Rather, it shows that their work was skilled and manual in nature, therefore, the finding of the learned Labour Court that the respondent was a `workman' as defined under the Ordinance, was un-assailable.

9. The next question that requires consideration is whether the respondent was a temporary or permanent employee. Admittedly the respondent's initial appointment was temporary. In fact his regular appointment was to made by Messrs National Tankers Corporation after he was released by the appellants. However, admittedly, he continued to work for 3 years as Deck-Cadet on the hoard the Vessel in the Sea. The employees of the appellants are admittedly governed by Service Regulations, 1965. There is no provision for temporary appointments in the Service Regulations 1965. However, under Regulation 8(a) the appointment is probationary of Assistant Purser for one year and in respect of any other officer for six months. Under Regulation 8(b), on successful completion of his `probationary period' the officer shall be entitled to apply to the Managing Director to become Established Officer. It may also be mentioned that the word `permanent officer' is not used in this Regulation, but, word `established officer' is used which is defined in Regulation 3(iv) which may be re-produced, as under:- "Established Officer" shall mean a seagoing officer, who holds a Certificate of Competency/Service either as Master or Ist Mate (F.G.) or 2nd Mate (F.G.) or as Ist Class or 2nd Class Engineer (Combined) or has rendered not less than six months Sea service with the Corporation and has been accepted as such by the Corporation."

10. It is not disputed that the respondent does possess the necessary qualifications required for Established Officers and has rendered sea service for more than 6 months. The question arises as to whether he has been accepted as such by the appellants Corporation. Admittedly the Provident Fund has been deducted from the salary of the respondent. In this respect, he has produced the letter No.2537/Marine, dated 29-4-1968, issued by appellants to All Masters of N.S.C. Vessels regarding deduction of Provident Fund from the wages with effect from the date of acceptance of the Officers as Established Officers. It also contained the Note as to who should regarded as Established Officer, which is as under:-- "(1) Certificated Officer: will be considered as Established Officer from the date of appointment in the Corporation. (2) Uncertificated Officer: will be considered as Established Officer after successfully completing sic months service with the Corporation." The fact that the Provident Fund was admittedly deducted from the wages of the respondent would clearly show that in view of the above order, the respondent was accepted as Established Officer. Thus, he is entitled to all such reliefs and privileges which under the Regulations, Established Officers are entitled to. As such, I am of the opinion that the learned Labour Court has rightly held that the respondent was entitled to the earned leave and study leave as laid down under Chapter-VII of the Regulations. The Established Officer would continue to be in service until his services are terminated in accordance with Regulation Nos. 8, 9, 10,11and12.

11. Admittedly the respondent signed off from the Ship on 8-9-1988 and since then he has not written to the appellants Corporation for allowing him to resume his duties on the ship. However, he alleges that he did not sign off the ship on his own accord or sweat will. He has not alleged in his grievance application or grievance notice that he was forced to sign off from the ship, therefore, his services would stand terminated from 8-9-1988, the date he signed? off which amounts to resignation under Regulation No.11 subject to his right of getting the earned leave due to him arid study leave under Regulation Nos.30 to 33.

12. With respect to the question of limitation, the application dated 1-11-1988, was made by the respondent to the Chairman of the appellants for the grant of earned leave. The cause of action arose to him on 6-12-1988, vide letter Exh.5, when he was informed that he was not entitled to such leave. Thereafter, he gave grievance notice dated 26-12-1988, which is Exh.2 and then filed grievance petition on 15-2-1988 viz., within 2-1/2 months from the date of his grievance notice. His grievance notice/application with regard to his claim for study leave or earned leave, cannot be considered as time-barred. However, his claim for being considered to be in service is time-barred as cause of action arose to him on 8-9-1988 when he signed off from Ship. He did not mention this grievance in application dated 1-11-1988. Therefore, his grievance notice, dated 26-12-1988 for this grievance would be beyond the period of 3 months from the date of cause of action viz., 8-9-1988, and, therefore, would be time-barred.

13. In view of the above discussion, both the appeals stand disposed of in the following terms:- (a) that the respondent was an Established Officer of the appellants Corporation whose services stood terminated on 8-9-1988; and (b) he is entitled to the earned leave due to him as well as study leave in accordance with the Regulations contained in Chapter-VII of the National Shipping Corporation (Established Officers) Service Regulations, 1965.

14. The orders to be implemented within two months from the date of this decision. M.Y.H./1665/Lb.S ????????????????????????????????????????????????????? Appeal disposed of accordingly.