1982 PLP 299 (PLC)

M. M. Aqeel for Appellant. Date of hearing; 16th April, 1981. The appellant, who was lastly employed in the Muslim Commer cial Bank Ltd., the first respondent herein, was dismissed from service by order, dated 30th July, 1979 on certain charges detailed in the letter, dated 19th December, 1978 which letter was duly served upon the appel lant. The dismissal orders were challenged by the appellant before the learned VIth Labour Court which has dismissed his grievance peti tion, by its decision, dated 20th January, 1981 on the sole ground that it was not maintainable as the appellant, being an officer of the respondent‑Bank, was not a workman for the purposes of the Standing Orders. The appellant has now come up in appeal to this Tribunal. against the said decision. The sole ground on which Mr. M. M. Aqeel, the learned counsel for the appellant, has assailed the impugned decision is that the learned Labour Court has taken an erroneous view of be evidence on record and that apart from the fact that learned Labour Court has wrongly placed on the appellant the burden of establishing that he was workman for the purpose of the I. R. O., it has ignored evidence to show that the appellant was required to perform duties and work of clerical nature.

2. It has been held by this Tribunal in the case of Johnson cg Johnson Ltd. v. Zubair Ahmad (1980 f L C 620) after an exhaustive review of the authori ties on the subject, that a person whose services have been terminated and such termination of services has not been in connection with or as a con sequence of an industrial dispute or has led to such a dispute, is not entitled to file a grievance petition under section 25‑A, I. R. O., but inch person would be entitled to file a grievance petition under the pro visions of clause (P L D 1969 Lah. 717) of Standing Order 12 read with section 25‑A, I. R. O., provided that he falls within the definition of "Workman" as given in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It was further held in that decision that the burden of proving that a person is a workman for the purposes of the Standing Orders is upon the workman himself but if it is established that he is an employee in an establishment, the burden may be a light one. I has, therefore, to be seen whether the appellant has been able to establish that he was employed to do any clerical or manual work. Before examining the evidence on this point, f would like, with respect, to refer to the observation of their Lordships of the Lahore High Court in the case of Chairman, Brooke Bond (Pak.) Ltd. v. Genera Secretary, Union, Karku nane Brooke Bond(2) that "the true test, therefore, is to look to the direct, immediate arid substantial part of the work for which he (the employee) employed and not to the sundry duties incidentally performed him". 3 In the instant case, neither in his grievance notice served upon the bank nor in his grievance petition, the appellant has claimed that he was required to perform manual or clerical duties leave alone giving details of such duties. No doubt in his evidence before the learned Labour Court he has claimed that his duties were purely clerical in nature and hence he was a workman for the purposes of the Standing Orders but again he has giver no details of the so‑called clerical duties required he has given no details of the so-called clerical duties required to be performed by him, Further more, it has not been established that such duties were the main or substantial part of his duties and were not merely incidental to the performance of his principal or train duties. On the other hand he has frankly conceded that he was employed as a 'Trade officer in the respondent bank and that officers in Grades 11 and III in the Bank were inferior to him in rank and status. He has further admitted in his cross‑examination that his basic salary at the time of dismissal was Rs. 1,575, that he was in receipt of conveyance allowance Rs. 300 per month and was also provided with free furnished residential accommodation, the rent whereof was Rs.

650. The appel lant has also admitted that he was holding a power of attorney on behalf of the Bank, that he was rune of the authorized signatories on behalf of the Bank, that he used to recommend application for leave of the persons in his Section and used to give guidance to other staff members working in his Section. All these circumstances in disputably establish that he was not employed to do clerical or manual work, but was employed in a supervisory capacity.

4. It was contended by Mr. Aqeel that the appellant was required to do typing, work as there was no Typist in the bank or the office where he was employed. The appellant, however, in his evidence before the learned Labour Court has admitted that one of the other officers was doing the work of typing. Since that officer was inferior in rank to the appellant, it is unlikely the appellant was required to do typing work. Further more, the appellant has admitted in his evidence before the learned Labour Court that there were 3 clerks employed in the section where he was employed. It is, therefore, quite unlikely that in the presence of these clerks, the appellant would be required either to do typing work or clerical work unless it was of very important or confi dential nature. As such, even if it be assumed that the appellant was required to do any clerical duties, though there is no tangible evidence g in support of this assertion made on behalf of the appellant, such duties would be incidental to the main duties for which the appellant was employed and would not form part of the direct, immediate and sub stantial part of work for which he was employed.

5. It was next contended by Mr. M. M. Aqeel, that the appellant was not even incharge or the head of the office or section in which he was employed but was required to work under the manager of the branch and had no power of hire and fire. The mere fact, however, that the appellant did not have the power to hoe or fire or that he was required to work under someone else, does not bring him within the forum of the C workman for the purposes of the Standing Orders, as the criteria for determining whether an employee is a workman is to see whether be is employed to do manual or clerical work. Their Lordships of the Supreme Court in the case of Talat Farooq v. Messrs Chloride (Pakistan) Ltd. (Civil petition for Special Leave to Appeal No. K‑145 of 1976) expressly dissented from the view of the Karachi High Court in the case of Dost Mohammad Cotton Mills, that the determining factor for holding whether an employee was a workman is whether he was directed to work under some one else and observed that "after" all even the General Manager of the Company has to work under the Directors of the Company and this by itself, would not make him workman, and the question would also be on the facts and the circumstances of each case."

6. It may also be reiterated that the appellant admittedly holds a power of attorney on behalf of the bank. It has been held by my learn ed predecessor in the cases reported in 1978 P L C 360 and 1979 P L C 156 that an officer of the bank who holds a power of attorney on behalf of the bank does not fall within the purview of workman as given in the Standing Orders. The latest decision of this Tribunal on this issue is in the case.‑of Syed Kifayat Hussain v. United Bank Lid. (Appeal No. KAR‑137/81, decided on 9th April, 1.981), where it has been held that a Grade III officer in the United Bank Ltd., is not a workman for the purposes of the Standing Orders, even though he may not be holding a power of attorney, since he was not employed to perform any clerical or manual work.

7. I have given my very earnest consideration to this case and am satisfied beyond any reasonable doubt that the appellant was an employee to do any clerical or manual work. In any case, it has not been establish ed that the substantial and direct part of his duties was to perform clerical work. I accordingly find no merit in this appeal and dismiss the same in limine. Appeal dismissed.