2000 PLP 166 (PLC)

"

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 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 feature i.e. the pith and substance of his employment must be manual or clerical before the definition is attracted." This authority has also been noticed by the learned Labour Court wherein the question had arisen whether Shift Engineer was a workman. Whereas in this present case, the respondents are "Shift Officers". Probably, this authority supports the appellant. (ii) Muhammad Sadiq v. Hotel Intercontinental, Lahore and another PLD 1988 SC

633. The relevant observations appear at page

8. Last paragraph is reproduced as under:‑‑ "We have heard and carefully considered the arguments of the learned counsel for the contesting parties. We are of the opinion that the real test for determining whether a person falls within ambit of the definition of 'workman' depends on the nature of duties performed by him. In the present case it is manifest from the evidence on record that the duties of the appellant at the relevant time were of a supervisory nature and since the nature of work performed by an employee is to be considered as the true criterion and the deciding factor in determining as to whether or not he was a workman the learned Judge in the High Court was justified in the light of the evidence on record, to reverse the concurrent findings of the Labour Courts below which were not based on the evidence on record." (iii) Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore etc. 1993 SCMR 1370. It was inter alia, observed in this case as follows:‑‑‑ ....it was incumbent upon respondent No.3 to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention."

6. Dealing with the above point learned counsel for the appellant submits that the learned Labour Court fell into an error in overlooking and ignoring that M/s. Kashif Ali and Siraj Abbasi were not appointed as Shift Officers but as Duty Officers, belonging to a different category of employees/officers. Reference is made by him to para.7 of the affidavit‑in evidence of appellant's witness, which has also gone unchallenged. He further submits that M/s. Kashif and Siraj were given some duties both inside and outside the factory premises, which were, somewhat at variance with the duties, assigned to the respondents. R6liance is made by him on a Karachi case, reported as Imran v. Sindh Labour Appellate Tribunal and another PLJ 1981 Kar. 413). In this case, it was, inter alia, observed that an employee who has a designation and a pay scale which is different from the designation and pay scale of ex‑employee, they belong to different category of workmen. In the case cited by the learned counsel, the ex‑employee was Waiter in a Restaurant whereas the persons employed were the pantry man and Storekeeper on higher pay. So is the position in the instant case, as submitted by the learned counsel that the designation has changed and the nature of duties as well.

7. Learned counsel for the appellant further submits that the observation of the learned Labour Court under paras. 9 and 10 is entirely misconceived inasmuch as firstly no allegation of mala fide was ever alleged by the respondents and secondly there is no material on which mala fide could be established. There is again no allegation that M/s Kashif and Siraj, who were appointed as Duty Officers after about four months, were junior to the respondents. The observation, on the point, seems to be subjective rather than objective i.e. with respect to persons and not to workmen. Learned counsel invites my attention to grounds B and C in this respect.

8. Mr. S.P. Lodhi with his associate Mr. Nishat Warsi submits that he relies on the decision of the Labour Court. Mr..Warsi places his reliance on the Supreme Court authority viz. PLD 1986 Supreme Court 103, which has also been relied by the learned counsel for the appellant cited as No. (i) above. This is all he relies on the point of workman. According to him, the notice of termination dated 27‑11‑1997 purports to be issued under Standing Orders 12 and 13, which, according to him, goes to show that the respondents are workmen.

9. After hearing the learned counsel for the parties and perusal of the entire evidence on record, I am firm in my view that the respondents are not workmen. They were Shift Officers looking after managerial and supervisory work of the entire shift not concerning any manual or clerical work. In case they were required to do some manual or clerical work that was merely ancillary, incidental and auxiliary in nature, which cannot form at all, by any stretch of imagination, the pith and substance of their job.

10. Lastly, the learned counsel for the appellant submits that the services of the respondents were terminated on 27‑11‑1997 whereas the grievance notice is dated 17‑3‑1998, which is apparently beyond three months, as provided under section 25‑A(1) of the I.R.O., 1969. This point, though taken in the reply statement by the appellant, but was not taken into consideration by the learned Labour Court nor any issue has been framed. Mr. Hafiz further submits that there is no notice from the respondent against the termination letter dated 27‑11‑1997 for reinstatement or back benefits whereas the learned Labour Court has ordered reinstatement with full back benefits, which is illegal and outside the pale of the application. This ground has been specifically taken by the appellant company under legal objection 'C' in the reply statement.

11. I then heard Mr. Warsi on the point of grievance notice on termination. He submits that he did not give any grievance notice for termination of service or made any complaint. It is thus clear that there is no grievance notice against said termination under section 25‑A(1) of the I .R.O., 1969. As such, the order of reinstatement is ab initio void, as without jurisdiction. For this view, I am supported by a Karachi ruling in Obaidullah v. The Labour Court No. 5, Karachi and' 2 others (1981 PLC 321). In the ease reliance having been placed on a decision in Koh‑e‑Noor Batteries Manufacture Company v. Lai Muhammad and another (1975 PLC 196) of this. Tribunal then headed by Mr. Justice (Rtd.) Inamullah Khan (Ex Chief Justice of West Pakistan), wherein it was held that: "The intention of the Legislature in framing section 25‑A of the Industrial Relations Ordinance, 1969 is two‑fold. Firstly, an opportunity should be given to the employer himself to redress the grievance of the individual workman expeditiously, and secondly, that it is only in case of failure on the part of the employer to redress the grievance, that the latter, if he so desires, can approach the junior Labour Court for his grievance." The learned judge in the High Court, thus, following the above dictum, laid down by the Ex‑Chairman of this Tribunal and referring to some other authorities, found that the prayer for reinstatement not made in the grievance notice, could not be agitated in the petition under section 25‑A of I. R.O. 1969. In the case referred to above, there was a grievance notice, but no prayer for reinstatement was made. Whereas the instant case stands on stronger footing as no notice for reinstatement against the order of termination was given. This, according to me, is fatal to the case of respondents in so far as reinstatement is concerned.

12. Mr. Warsi stated at the bar that he did not make any application for reinstatement. He wanted a fresh appointment, because under Standing Order 14, the Company had taken into employment Kashif‑and Siraj which gave him a new cause of action. His cause of action arose only when Siraj and Kashif were taken into employment.

13. In view of what has been stated at the bar by Mr. Warsi, the impugned order for reinstatement with back benefits, ipso facto, is null and void because the reinstatement was never prayed for in the application. For this view, I am supported by a Supreme Court authority reported as Pakistan' International Airlines Corporation through its District Manager v. Chairman, Labour Appellate Tribunal and others (1980 PLC 975). The relevant passage appears at page 981 wherein it has been held that, " re‑employment means fresh employment and not reinstatement". On perusal of the application under section 25‑A, IRO. filed by the respondents, it shows that the termination of the employment of the respondents was challenged as invalid and reference to employment of Kashif and posting of Siraj seems to be incidentally made because there is no prayer with regard to re‑employment in super session to others nor the two officers have been joined as parties.

14. In result, the impugned decision is set aside and the, appeals are allowed.

15. Before parting with the judgment, I would like to observe for the general guidance of the Labour Courts that after the pleadings are filed by the parties, the learned Labour Court should fix a date for settlement of issues. The practice, as followed in the High Court, should be that the learned Advocates be asked to file consent issues and if it is not possible, then in that case the Court should, itself, frame the issues in Court and in presence of the parties or their counsel, so that the parties should know, before the evidence starts, the issues on which they are supposed to lead their evidence. Miscellaneous Application Nos. 1/99 and 2/99.

16. In. view of the above, the stay applications having become infructuous, stand dismissed. Announced in open Court this the 16th day of March, 1999. H.B.T./277/K(Lab. (Trib.) Appeals allowed.