1994 PLP 582 (PLC)

(iv) He examines rate analysis of items of work prepared by contractor and recommends rates; (v) In his discretion inspected the works at site, directed the Surveyors to provide levels and supervise their work. He controlled and checked the inventory of stock at site. He had to make recommendations for smooth functions of work at site by the contractor."

11. The agreement between Korangi Fisheries Harbour Authority and Netherlands Engineering Consultants working in collaboration with the appellant has been placed on the record. It clearly shows that the appellants have nothing to do with any construction activity. That is with M/s. Mowlem and the services of the consultants have been enumerated therein :‑ "(1) The Consultants will be responsible for the supervision of project works in accordance with recognized International standards and practices for quality control on works. (2) Examination, review and approval of the contractors planned constriction schedule, in conformity with the contract agreement Documents. (3) Examination and approval of the contractor's proposals for construction of works. (4) Exercise resident site supervision on the works through qualified, competent and experienced Engineers and staff. (5) Monitoring the progress of works by preparing charts at the end of each month comparing the anticipated progress with actual achieved. This comparison will be included in the monthly progress report to be submitted to KFHA with explanations on stoppages or delays in the implementation of the project, giving details of measures recommended to avoid any future delays as well as possible measures to recover any lost time in the implementation of the project. (6) Such on site inspection of the work including work to be covered up as the Consultants shall consider necessary to check and report on performance of the Contractor and execution of the project in accordance with contract documents, particularly the specifications and sound engineering practices. (7) Checking of the Contractor's surveys, soundings, setting out of works and detailed measurements necessary for satisfactory construction of the works and for interim and final payment certificates to formats agreed with and approved by KFHA. (8) Preparation of any detailed construction drawings and, designs, in addition to those already prepared, as may be necessary for the Contractor to execute the Project. (9) Carrying out in Pakistan, as may be necessary, the inspection and testing of any materials, manufactured products, electrical and communication equipment, plant and machinery for the project in compliance with accepted international standards and practices and furnishing requisite certificates and reports to KFHA. (10) Ascertaining and recommending to KFHA the suitability or otherwise of manufacturers and sources of machinery and equipment, and materials that the contractor propose to use to construct the work, either for temporary works or for incorporation in the permanent works. (11) Checking and recommending to KFHA the adequacy and authenticity of all certificates, insurances, performance bonds, indemnities, ownership of plant, etc. and any other requirements for which the contractor is liable under the Conditions of Contract. (12) Recommending to KFHA on any changes in plans and specifications which may prove necessary or desirable during the course ' of constriction, together with production of the necessary revised plans, design calculations, specifications etc. for any changes which KFHA may approve. (13) Advising KFHA on possible ways to reduce project expenditures and advising the Contractor on possible measures for improving efficiency. (14) Issuing all necessary instructions to the contractors in writing where required in particular with reference to variation orders/extra works as provided under the condition of contract with the approval of KFHA. (15) Recommending to KFHA the acceptance or rejection of the work or any part thereof constructed by the contractor in accordance with the specification and Conditions of Contract. (16) Preparing Interim Payment Certificates, Certificates of Completion, Final Payment Certificates and Maintenance Certificates in accordance with the conditions of contract for approval of KFHA to formate agreed in advance with KFHA. (17) Periodic checking of quantities of work still to be executed and review of project expenditure (both local and foreign). (18) Negotiating with the Contractor and making recommendations to KFHA on the rates for any unscheduled items of work which may arise. (19) Instructing the Contractor to carry out any on‑site tests including loading test, test records and settlements records as may be considered necessary, including supervision and verification of such tests and submission of reports to KFHA. (20) Delivery to KFHA on completion of work such records and manufacturer's manuals including `As Built Drawings and maintenance instructions as may be necessary to satisfactorily operate and maintain the completed project facilities. (21) The preparation and submission of contract completion, maintenance completion and other reports. (22) Assisting KFHA if necessary, in appointing an arbitrator to settle any dispute or difference of opinion between KFHA and the Contractor concerning the execution of the works. (23) Satisfactorily carrying out all other duties of the Engineer with diligence and care as may be necessary and incidental for satisfactory construction supervision procurement or implementation of the project."

12. There was no room for any clerical or manual work unless incident 'i. The respondent could not be counting and measuring the whole day long. The pith and substance of the duties performed by the respondent was certainly of a technical nature involving mental application and Engineering skill. It was not a work of routine or manual nature but required application of mind and supervision of work done by others. Even the bio‑data furnished by the respondent at the time he had applied for the job is a clear pointer in that direction. Looking to the ratio laid in General Manager Hotel International v. Bashir Ahmed PLD 1986 SC

103. Abdur Razzaq v. M/s. Ihsan Sons Ltd. and others to 1992 SCMR 505 to mention only a few, the respondent cannot be said to be a workman,

13. As according to me the respondent was not a workman that is enough to dispose of the appeal. The alleged solecism in the letter of termination in the circumstances will be wide of the mark.

14. In the result, the impugned order is set aside the appeal is allowed. H.B.T./2309/Lb.S Appeal allowed.