2017 PLP 96 (PLC)

JAWAD HASSAN, J.

Through this constitutional petition, the Petitioner has called in question judgment dated 29.10.2009 and 06.07.2011, whereby his grievance petition and appeal respectively, were dismissed.

2. Brief facts for the disposal of this petition are that the Petitioner joined service of Bank as Officer Grade-III on 19.03.1994 and remained posted at different places at Faisalabad. Subsequently, on account of his best performance, he was posted as Manager Bank of Punjab at Jaranwala Branch. He assumed the charge of Jaranwala Branch on 13.10.1997. Thereafter, he wrote many letters to the Regional Chief regarding shortage of staff and working condition of the Branch. The Petitioner was charge sheeted on 7.10.2000 containing certain allegations. He replied to the charge sheet on 14.11.2000 and rebutted all the allegations. Subsequently, as a consequence of fact finding enquiry the Petitioner was given a notice on 26.03.2001 for personal hearing and thereafter he was dismissed from service. Subsequently, the Petitioner filed Departmental Appeal against dismissal order on 28.04.2001 which was rejected on 28.07.2001. Then the Petitioner instituted writ petition before Hon'ble Lahore High Court, Lahore, which was disposed of on 30.11.2001 for want of jurisdiction. Being aggrieved, he served a grievance notice, but in vain. Thereafter, he filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 (the "1969 Ordinance") before the Labour Court No.4, Faisalabad, which was dismissed vide judgment dated 29.10.2009. Being aggrieved by the said judgment, the Petitioner filed appeal before the Punjab Labour Appellate Tribunal, Lahore, which was also dismissed vide judgment dated 06.07.2011. These judgments have been assailed through this constitutional petition.

3. The Counsel for the Petitioner has argued that the Petitioner has fully proved through his oral as well as documentary evidence that he is not only a Manager but in fact, he used to discharge his duties of clerical and manual staff as such he falls within the definition of 'Workman'. He further argued that there is nothing on record to show that the duties contained in the job description were ever performed by the Petitioner moreover the majority of the duties captioned even in the job description are that of clerical nature and both the Courts below erred in holding that he is not a workman and his petition is not entertainable before the Labour Court. He further argued that the Courts below wrongly inferred that the Petitioner has supervisory and administrative role, therefore, he did not fall within the definition of workman as given in 1969 Ordinance but in fact, the Petitioner was workman under West Pakistan Industrial and Commercial (Standing Order Ordinance), 1968 which has neither been considered nor brought into consideration while deciding the grievance petition of the Petitioner. In support of his contentions he has placed reliance upon Allied Bank of Pakistan v. Muhammad Humayun Khan and others (1988 SCMR 1664), National Bank of Pakistan v. Muhammad Aslam Dar and another (1999 SCMR 483 = 1999 PLC (C.S.) 397), Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505) and an unreported order passed by Hon'ble Supreme Court of Pakistan in Muslim Commercial Bank Ltd. v. Rana Najam-ul-Haq and another (C.P. No.2760 of 2004),wherein it has been held that Bank Manager in view of his duties and functions, employee was a "workman" and that Labour Court had jurisdiction to entertain and decide grievance petition.

4. On the other hand, counsel for the Respondents has argued that learned Labour Court No.4, Faisalabad has passed the judgment dated 29.10.2009 after appreciating the record and available evidence; that during cross-examination the Petitioner has admitted about the nature of his duties and job descriptions and that the duties of Petitioner are Managerial or Supervisory in its nature, therefore, the Petitioner does not fall within the definition of a "Workman". Learned counsel has further argued that the Petitioner after dismissal of his case from the Labour Court has assailed the same before the learned Punjab Labour Appellate Tribunal by way of filing appeal, but after hearing both the parties, the learned Appellate Court, observed that duties and responsibilities show that pith and substance of the duties of the Petitioner was Supervisory, Managerial and Directional. It was observed that Petitioner was Manager of the Branch. He further argued that concurrent findings of facts cannot be interfered and/or reversed unless a question of public importance is raised by the Petitioner. It is settled law that concurrent findings are not interfered by the Superior Judiciary and that too under constitutional jurisdiction. In support of his contentions, he has placed reliance upon Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505), Muslim Commercial Bank Limited through President and 3 others (2008 PLC 322), Dilshad Khan Lodhi v. Allied Bank of Pakistan and others (2008 SCMR 1530), Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited (2009 SCMR 857), Ganga R. Madhani v. Standard Bank Ltd. and others (1985 SCMR 1511), A.F. Ferguson & Co. v. The Sindh Labour Court and another (PLD 1985 SC 429), Messrs Ihsan Sons Ltd. v. Abdul Razak Habib and 2 others (1987 PLC 390), Messrs Textile Services through Senior Sales Executive v. Syed Faisal Aziz and another (2012 PLC 20), Muslim Commercial Bank Limited Karachi through Attorneys v. Abdul Majeed Mirza (2004 PLC 182) and Messrs Samkar Tameerat (Pvt.) Ltd. v. Mumtaz Hussain (2008 PLC 72).

5. Arguments heard and record perused.

6. The basic and precise question to be determined by this Court is that whether the job description of the Petitioner and duties assigned to him are of manual or clerical in nature and whether the duties performed by him falls within the ambit of "workman". From the perusal of record it reveals that nature of duty of the Petitioner being Manager of the Branch was supervisory and managerial and he does not fall within the definition of "workman". The definition of word "workman" has also been defined in clause (i) of section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which indicates that person is a workman if he is employed in any industrial or commercial establishment or doing any skilled or unskilled, manual or clerical work for hire or reward. Para-2 of Ex.R-1 describes the description and responsibility of the Petitioner, which have been admitted by the Petitioner during his cross-examination as PW-1. In case the duties of an employee predominantly involved clerical or manual work, he would be regarded as "workman", the same are rather ministerial and administrative in nature and are not predominantly of clerical or manual working nature. The nature of duty of the Petitioner was a Bank Manager, the same cannot be said to be clerical or manual rather the same are managerial and supervisory in its nature, therefore, the job mentioned in the Appointment letter of the Petitioner itself speaks that he was appointed as Manager so his duties were of supervisory in nature, therefore, he does not fall within the definition of word "workman". It is discernible from perusal of record that in "Ground-e" of the writ petition, the Petitioner himself has admitted the fact that one Cashier, one peon and two guards were working under him. He also admitted in the grievance petition that he joined Bank in Officer Grade-III and then he was promoted to the Officer Grade-II and then he was posted as Branch Manager Jaranwala Branch. In examination in chief before Labour Court No.4, Faisalabad, the Petitioner stated that one OG-III Kh. Rahat Ali gave him in writing that he cannot manage the burden of work, which he forwarded to Chief Sahib. All the above said facts and circumstances demonstrate that he was playing an administrative and supervisory role as his juniors forwarded and discuss their difficulties with him, therefore does not fall within the ambit of "workman".

7. Recently, the Hon'ble Supreme Court in case titled National Bank of Pakistan v. Anwar Shah, (2015 SCMR 434) had held that:- "the 'worker' and the 'workman' defined in the Act mean person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice but does not include a person who is employed mainly in managerial or administrative capacity. On the other hand, the 'employer' as defined in the Act includes a person who is proprietor, director, manager, secretary, agent or officer or person concerned with the management of the affairs of the establishment. The term 'officer' is specifically mentioned in the definition of term 'employer'. However, as has been noted from the case-law cited by the learned counsel for the parties, the Courts have not considered the designation of a person to be a factor determining his status of employment in an establishment to be that of an officer or a workman rather the Court has always considered the nature of duties and functions of a person to be the factor which will determine his status as to whether he is a workman or not." Further the Hon'ble Supreme Court of Pakistan in National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad (1993 SCMR 672), held:- "that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman. As the Officer Grade-II failed to discharge his burden, he was held not to be a 'workman' and his grievance petition was dismissed. The ratio of this case and also of the other cases that have been relied upon by the learned counsel for the parties is that the person who approaches a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman being denied by the employer, it becomes a bounden duty of a person who approaches the Labour forum to demonstrate through evidence that his nature of duties and functions were that of a Workman and not that of a managerial or administrative capacity and that he was not an employer. Unless such categorical evidence is led by him, he will not be considered to be a workman and his grievance petition will not be maintainable before the Labour forum. It, therefore, implies that the officer cannot be assumed to be workmen nor such can be declared on mere asking. The argument that officers Grade-I to III are performing supervisory function in itself means that this has to be established by evidence. In this view of the matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen."

8. The test laid down by the Courts to see whether person is a workman or not, it is not the job designation which is material but the nature of duty that is performed by the person concerned. In this regard reliance is placed on the case titled Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others (PLD 1994 SC 273) in which it has been held as under:-- "Case-law covering contentions mentioned above, requires that is on the workman to show that he is so within the meaning of labour laws and that onus must be discharged by leading sufficient evidence. While evaluating the evidence pith and substance of duties should be considered and not the designation. Even salary is not of much relevance. To answer the contentions much depends on the evidence produced in that case and facts of each case are different from another." In the case titled Ganga R. Madhaani v. Standard Bank Limited and others (1985 SCMR 1511) it has been held as follows:-- "It would, thus, be noticed that in determining the status of an employee, i.e., deciding as to whether or not he is a 'workman', what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties, because even a person employed at the highest managerial or supervisory level has, sometimes, to perform functions or do some work which may be termed as 'manual' or 'clerical'." In view of the evidence and the judgments of the Supreme Court relied above, it is evident that the Petitioner was not a workman because he was employed as Branch Manager of the Bank and his duties were managerial and supervisory and the Petitioner admitted the same during his cross-examination, hence the Labour Court dismissed his Petition, which was upheld by the Appellate Tribunal by rightly holding the Duties and Responsibilities and Entitlement show that the pith and substance of the duties of the Petitioner was supervisory, managerial and directional.

9. In view of the above, learned counsel for the Petitioner has failed to point out any illegality and irregularity in the impugned judgments warranting interference by this Court in its constitutional jurisdiction. Writ petition being devoid of merit is hereby dismissed. ZC/I-14/L Petition dismissed.