1991 PLP 353 (PLC)

"Office Services Officer, Personnel and Administration Department, Stationery, Mail and Office Service Section. (1) is entirely responsible for smooth functioning of Stationery, Mail/Dispatch Section, Office Equipments and Services. (2) is responsible for arranging distribution of incoming mail and dispatch of outgoing mail which includes ordinary and registered letters, telegrams, parcels etc. through staff working under him. (3) is responsible for allocation of duties to Messengers/Peons working under his direct administrative control. (4) is supposed to maintain good supply of printing materials, stationery, forms etc. and arrange their printing as and when required. (5) General Administrative functions of stationery, mail and Office Services. (6) insures that the Cyclostyling, Photo-copying, Franking, Adding and Calculating Machines and Office Typewriters etc. are kept in perfect running condition at all times and arrange for their regular maintenance/servicing. (7) is supposed to maintain complete record of stationery supplies stamps and the material used for office services jobs. (8) receives application for leave etc. from staff reporting to him and accords his approval as the case may be. (9) takes disciplinary action for the staff working under his jurisdiction. (10)? Exercise control over the following staff:- (1) Peon for Distribution of Incoming Mail (1) (2) Peon for Dispatch of Mail, Parcels cables (1) (3)Peon for General Office Work. (11) carries out other responsibilities as and when assigned by his superiors. (12) is responsible for Personnel and Administrative Manager."

8. Mr. Khalil-ur-Rehman, learned representative for the respondent, submitted that the nature of duties that the respondent was actually performing would be clear from the `show-cause notice' that was served upon the respondent on 10-2-1988 in which he is alleged to have failed in performing his following duties:- (1) Staff Tiffon Room is in extremely disguising condition. Empty bottles, tin boxes, unserviceable items including old records is lying all over. Broken table and damaged cushion of benches have not been repaired. You did not bother to get it cleaned although you were told several times since November, 1987. (2) Uniforms of Peons not yet arranged. They did not get it in 1987 and neither for the current year. You have been repeatedly asked for it since November, 1987. (3) List of addresses of Company Shops and Dealers not updated for making Computer Disc for printing addresses on stickers to be used on mailing envelopes. Job pending since 28-12-1987. (4) In December, 1987 you were instructed to plan stationery requirements of 1st quarter, 1988 for placing orders with our Material Division which has not yet been done. This has created tremendous problems as every single item cannot be printed on emergency basis. (5) Visiting Cards of DSM, DSO, Stores Managers and others not printed although reminded from time to time since December, 1987. (6) List of Company Shops and residential telephone numbers of Executive not made for reprinting in the Telephone Directory to be issued in June, 1988 although demand note was paid on 9-1-1988 and this should have been sent to Divisional Engineer, Telephones by 17-1-1988. (7) Attendance register of Workers/Staff when checked was found blank and no entries made from Ist to 8th February, 1988. (8) Stationery Items are not available when demanded. (9) Tea, Coffee and sugar being purchased from the Market in bits and pieces instead of arranging it from Korangi Warehouse as per instructions. (10) Excessive overtime being performed in Mail Section due to poor planning and lack of attention." This show-cause notice has been produced by SA. Hameed, General Secretary of the C.BA. as Annexure A-2.

9. The respondent has denied in the cross-examination to have received the `job description'. It may be pointed out that in the letter of his promotion which is Ex. AW 1/4 it is clearly written that a copy of `job description' for information and guidance was enclosed. It is admitted in the cross-examination that in spite of this fact mentioned in the Promotion Order, which he admittedly received, he did not ask in writing for being supplied with copy of the `job description'. He has denied the suggestion that he did not ask for `job description' in writing because he had received the copy. It may be pertinent to note that though this `job description' was produced by the appellant alongwith the Reply Statement, the respondent did not, in his affidavit-in-evidence which was filed afterwards, deny receipt of the job description. It is submitted by Mr. Mahmood Abdul Ghani that the denial of respondent in his cross-examination is an afterthought. Mr. SA. Hameed, witness of the respondent had admitted that he had received the `job description' alongwith his `appointment letter'. It shows that the practice in the Company is to supply `job description' to their employees. The presumption in law would be that ordinary course of business would have been followed in the case of respondent viz. that he would have been supplied `job description' and burden to prove otherwise shifted upon the respondent which, under the circumstances of this case does not appear to have been discharged. Therefore, his mere denial that he did not receive job description' or the signature on the 'job description' was not his does not prove that this ordinary course of business was not followed in the case of the respondent. Keeping all the circumstances in view I am inclined to hold that the respondent was supplied the copy of the `job description' alongwith his promotion order.

10. A perusal of the `job description' would show that the nature of the, of the respondent was supervisory. He has admitted in the cross-examination he used to take work from sweepers. It has also come in the examination Aqiluddin, witness of the appellant and Manager Legal Affairs, that Khan Gul Peon, Gulzar Ahmed. Peon, Muhammad Hussain Peon, Abdul Hameed Teaman and Purchatum Praimjee Sweeper used to work under the respondent. Keeping the `job description' in view the respondent would be performing his duties by getting the work done through Peons, Teaman and Sweepers.

11. The respondent in his affidavit-in-evidence stated that he used to work as Clerk/Dispatches. In his cross-examination he stated that he used to work as Electrician and change the switches. His own witness Abdul Hameed has admitted in the cross-examination that there was no Electrician but in the case of need the respondent used to bring some Electrician from outside for repairing of switches, tube-lights and air-conditioners etc. He, however, stated that the respondent used to do work of Dispatch. Muhammad Aqiluddin has stated that the clerical work nominally done by the respondent was only incidental or ancillary to his main nature of work, which according to him was the work of supervisor of stationery which was administrative function done through peons and other staff working under him. He has admitted in the cross-examination that all the entries in the Dispatch Register were in the handwriting of the respondent and these dispatch entries were from 12 to 30 which only took five to ten minutes. The question that requires consideration is whether the pith and substance of the work for which the respondent was employed was clerical viz. despatch work or it was of supervisory nature and this clerical work was incidental or ancillary to his main work. Admittedly there are clerks and typists in the establishment of the appellant. It does not appeal to reason that the appellant would have appointed a person with such a high salary and designation to do only the work of Despatch Clerk. The Annexure A-2, referred to above which was relied upon by Mr.Khalil-ur-Rehman does not show that the duties mentioned therein were to be performed by the respondent personally or he had to get these duties performed through his staff which he failed to do. The nature of some duties mentioned therein were of manual nature and respondent never alleges to be doing manual work. The fact that he had to maintain attendance register of workers/staff would also show that certain staff and workers were working under him. This document also does not help the respondent in establishing that pith and substance of his duties were clerical in nature.

12. The respondent has further contended that he had no power of `hire or fire' and that he simply recommended the leave applications. Mr. Mahmood Abdul Ghani has relied upon 1982 P L C 294, wherein this Tribunal has held that power of hire and fire was not a determining factor for holding whether or not employee was workman. The respondent admitted to have received EX.AW 1/7. It is letter, dated June 5, 1979 viz. after promotion of the respondent and addressed to him wherein he was informed that overtime slips submitted by the staff and duly recommended by the respondent had rather become a regular feature and required to be given immediate attention. This admitted document also shows that certain staff was working under the respondent.

13. As already pointed the respondent belonged to managerial or supervisory class. The criteria of determining the status of such employee as workman would be different from the criteria for holding an employee from labour class as a workman. In the case of latter if he does any manual or clerical work he would be a workman as defined under the Standing Orders Ordinance but in the case of former it would be purpose for which he was employed for the pith and substance of duties which would determine his status as workman. I have carefully considered the evidence on record and am of the opinion that the respondent was not a workman.

14. It is also contended that the respondent was victimized because he had joined the Union on 10-2-1988. No evidence has come on record to show that the appellants were intimated of his joining the Union. The first information that they received was the letter from Mr. A. Hameed, General Secretary, which is Annexure A-1 produced by A. Hameed and is dated 21-2-1988 viz after the termination of the services of the respondent. Admittedly he has been elected as Secretary of the Union after the termination of his services, which is nothing unusual because under the I.R.O. some office-bearers of Union may not be Members of the Union. Admittedly the respondent left the Union after his promotion till he is alleged to have joined the Union again some where in February, 1988 for which the appellants received the intimation only after the services of the respondent were terminated. Therefore, this cannot be said to be a case of victimization.

15. In view of the above discussions and finding that the respondent was not workman, the grievance petition was not maintainable and was liable to be dismissed. As such the impugned order passed by the learned Labour Court is set aside and the grievance petition filed by the respondent is dismissed as not maintainable. M.Y.H./1719/Lb.S ????????????????????????????????????????????????????????????????????????????? Appeal allowed.