1989 PLP 153 (PLC)

Special provision.‑‑For the purposes of distinction from the category of "workers" or "workmen", officers and employees of a department of the Federal Government or a Provincial Government or local authority, who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employer": (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof." It was clear that the respondents' Organization was an industrial concern and a corporate body. The petitioner at the most can be stated to be falling in the definition of employer in clause (e) of section 2 of the I.R.O., 1969. But a careful reading of clause (e) would show that it was not applicable in the case of the petitioner. This clause was a residuary clause clearly indicating that this clause would be applicable in those cases only which were not covered by the clauses (a), (b), (c) and (d). Moreover, this clause would be applicable in those cases only, which did not fall within the opening para of subsection (viii), i.e. the opening para clearly stated that the "employer" in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employees workmen in the establishment under a contract of employment. Clause (e) clearly, stated that it would be applicable in those cases, which were not covered by the above‑mentioned opening para of subsection. The establishment of the respondents is an incorporated establishment. So this was fully covered by the opening para of the subsection. Subsection (e) was not to govern this incorporated establishment. It was to govern some establishments, which were not incorporated like the establishment of the respondents. This clause probably to my mind was included in the section to cover the cases of joint Hindu family as the business of joint Hindu family or industries run by joint Hindu family was neither incorporated nor otherwise covered by the opening para of subsection (viii). So this residuary subsection had been added to cover the establishment or industrial establishment run by the joint Hindu family, or the cases of local bodies or semi‑Government or autonomous bodies.

8. Even if it be held to cover the present case, it would not govern the present case. The reasons are obvious. It clearly stated that the persons working in the establishments covered by this clause would be employer, if they are Director, Manager, Secretary, Agent of other Officer or person concerned with the management of the affairs thereof. The petitioner was and is not admittedly the Director in the establishment. He is not the Manager in the establishment He is the Chief Accountant. No doubt, it has been stated that he was working by virtue of Resolution of the Board of Directors as Secretary of the Suraj Ghee Industries Ltd. But it was also clear that the post of Secretary of Suraj Ghee Industries was not of any administrative nature as far as the running of the management of the establishment was and is concerned. The statement of R.W.1 in answer to the Court questions was quite clear regarding the functions and duties of the Secretary of the Company. It was "There is a Chairman of the Board of Directors of Suraj Ghee Industries Ltd. It is under his orders that the meeting are called. The Secretary fixes the dates of the meetings of the Board of Director under instructions of the Chairman of the Board of Directors". He further stated "The Secretary of the Company draws the pay to the amount of Rs.5,

000. No staff is given to him in the capacity of Secretary of the Company. The Chief Accountant works as Secretary without any additional remuneration. He draws pay as Chief Accountant not more than Rs.5,

000. I cannot tell the pay of the Secretary, if some body other than Chief Accountant works as Secretary." The witness has also stated in the cross‑examination of the counsel for the petitioner as under‑ There is a Secretary of Suraj Ghee Industries Ltd. He maintains the Minutes of the Meetings of the Directors of Suraj Ghee Industries Ltd. He prepares the Agenda of the meetings as well. The Secretary calls the meetings of the Directors according to the Company Law." This extensive quoting from the statement of R.W.1 clearly brought out that the Secretary of Suraj Ghee Industries Ltd. has no say in the management of the establishment. He has no powers of recruitment, dismissal or disciplinary action 1 against the employees of the establishment. He works under the direct orders and control of the Chairman of the Board of Directors of the Company. His functions and duties as Secretary are to maintain the record of the Minutes of the Meetings of the Board of Directors, to call the meetings of the Board of Directors and to do other connected things under the orders of the Chairman of the Board of Directors or Members of the Board of Directors. He has no subordinate staff as Secretary. He does every thing personally and with his skill and hands. This clearly proved that the Secretary of Suraj Ghee Industries Ltd., was at the best a glorified Clerk. Mere designation of Secretary would not raise his position and enhance his powers of active control of any branch of the management or the managerial affairs. So even from that point of view, this type of Secretary ship, was not envisaged in clause (e), it did not fall within the definition of "employer". Under the circumstances, this clause is not applicable in the case of the petitioner come what may. So the petitioner was not the employer as asserted in the written statement by the respondents under the Industrial Relations Ordinance, 1969.

9. Now I will advert to the Standing Orders Ordinance. The definition of employer has been given in section 2(c) of it. It is also quoted for convenience sake, which is as under:‑‑ "2(c) `employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes‑‑ (i) in a factory, any person named under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory: (ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government, the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department: (iii) in any other Industrial or Commercial establishment, any person responsible to the owner for the supervision and control of such establishment." The petitioner never fulfilled the qualification of an officer or a person working in c the Suraj Ghee Industries Ltd. and having any say in the management as defined in the above‑mentioned clauses.

10. It has been vehemently argued by the learned counsel for the respondents while referring to the statement of R.W. 1 that the petitioner was the Chief Accountant of the Suraj Ghee Industries Ltd. He had the Deputy Manager (Finance) and Accountant and many Accounts Clerks working under his subordination and supervision in that capacity. So he could not be a worker but could only be an employer. I will deal with this aspect of being worker later on. I am concerned only here whether the petitioner was an employer or not. The learned counsel for the respondents has not been able to show me how the petitioner in any way was contributing any of his part towards the management of the Suraj Ghee Industries Ltd: How he had any say in the management. How he influenced the day to day management or policies of the management as Chief Accountant. No doubt, the learned counsel for the respondents has referred to the statement of the petitioner in cross examination, which is as under:‑ "I have seen the 17th Annual Report of 1984 of Suraj Ghee Industries Limited and the same is correct. The said Annual Report is Exh. R.1. It is correct that in this Exh. R.1 my name is printed as Chief w" Accountant/Secretary. It is wrong to suggest that the Chief Accountant in Suraj Ghee Industries Limited remains Incharge of the Account Branch of the Unit. It is wrong to suggest that in Suraj Ghee Industries Limited there is no higher Officer in the Accounts Branch other than the Chief Accountant. Rather the General Manager (F) controls the said Department. It is correct that the General Manager (F) is the employ" of the Ghee Corporation of Pakistan and performs his functions while sitting in the Head Office of Ghee Corporation of Pakistan. It is correct that all the work performed by the subordinate staff of the Accounts Department used to come to me. All the work of [lie staff used to be checked by the Deputy Manager (Accounts). Thereafter I used to examine the statements with reference to Ledgers and had been preparing the collective data. I used to make this checking with a view to find out whether the work undertaken by the subordinate staff was correctly made or not."

11. Apart from this, the learned counsel for the respondents has also referred to the statement of R.W.1, Zia‑ud‑Din Shaikh, Acting Chief Accountant. This witness stated "The Chief Accountant is in the full Manager Grade. Suraj Ghee Industries is a Public Limited Company .......................................................There are many Departments in: the Company. Accounts Department is headed by the petitioner. The Chief Accountant is responsible for the efficient running of that Department. The petitioner by virtue of his office was also acting as Company's Secretary." The witness in answer to Court questions stated "Chief Accountant has got no powers to employ persons in the Company or dismiss persons employed in the Company He has no power to suspend any body from service on the basis of dereliction of duty". The learned counsel for the respondents then referred to the statement of R.W. 2, Shamshad Hussain. This witness also stated "The Chief Accountant is the Head of the Accounts Department in our Mills. I used to prepare the accounts of the Mills, when the petitioner was Chief Accountant there. Overall supervision of the accounts of the Mills is of the Chief Accountant it, the Mills. I have seen the Financial Accounts Books of the Mills for the year 1982‑83, which is Exh. R. 8 and for the year 1983‑84, which is Exh. R. 9". The witness further elaborated in answer to Court questions as under:‑ "The instructions and pro formas regarding the financial matters come from the General Manager, Ghee Corporation and then they are conveyed to the relevant Departments. The data is collected from the relevant Departments, then put up before the Chief Accountant and he re‑submits the report to the higher authorities." The learned counsel after referring to the above‑mentioned statements stated that the petitioner was Chief Accountant in the Suraj Ghee Industries Ltd. He was Head of the Department, controlled the said Department fully and by no stretch of imagination can be taken out of the definition of employer. But as quoted by me the witness of the respondents himself had stated that the petitioner as Chief Accountant had no powers of hire and fire. He had no say in the formation of policies regarding the running of the Milts, i.e. he had no part to play in the management of the Company. He could not interfere, intervene or change the lines and directions regarding the running of the Mills. The running of the Mills was something big, he had even no powers in the preparation I of the financial statements of the Mills. He is provided pro formas and conveyed orders to prepare the financial statements of the Company according to the advice and lines given to him by the General Manager of the Ghee Corporation of Pakistan. Then he had to get the things done according to those instructions and on the lines provided to him by the General Manager of the Ghee Corporation of Pakistan. Thereafter without any independent opinion of his and independent action of his, those pro formas after having been filled, were submitted by him to the General Manager for final action and policy. In this way, he had no part to play in the management of the Company. He was not conceded any independent action even as Chief Accountant. The argument that it has come in the evidence of R.W. 1 and R.W. 2 that no cheque of the Company could be encashed, unless and until it is countersigned by the Chief Accountant, has been well answered and well met by those very witnesses in cross‑examination, that the counter‑signatures on the cheques for payments were required for the purpose that the amount due to the person, in whose favour, cheque was issued, was available with the company. It was for this purpose that he signed the cheques and submitted for authorised signatures of the Managing Director or General Manager for payment to the person, in whose favour, it had been issued. This also showed that the petitioner even as Chief Accountant had no financial powers to make independent payment to any body (R.W. 1, Zia‑ud‑Din Shaikh). All this showed that the, petitioner as Chief Accountant was as powerless as a simple Accounts Clerk. So by any concession of any type to the respondents, it cannot be said that the petitioner as Chief Accountant was an Officer connected with the management of the Suraj Ghee Industries Ltd. or played any part in the formation of the managerial policies of the Suraj Ghee Industries. He was thus riot covered by the definition of employer as given in the Industrial Relations Ordinance, 1969 or Standing Orders Ordinance. 1968. The point therefore; clearly went against the respondents.

12. Note, taking up the other point that the petitioner was a workman or a worker and entitled to the jurisdiction of this Court, it would be seen as discussed in the earlier paragraphs of the judgment that the petitioner was powerless person working under the designation of Chief Accountant in the Suraj Ghee Industries Ltd. No doubt the learned counsel for the respondents had vexed his eloquence on the point that the petition had Deputy Manager (F) and so many Accountants as well as the Accounts Clearly working under his supervision and he was drawing monthly pay to the tune of more than Rs.800, so he was supervising the Finance Department of the Company and was out of the definition of worker or workman, but that was all in vain. It has come very clearly in the statements of R.W.1 and R.W. 2 that the petitioner was a skilled person and on the technical side of maintenance of accounts and finance. He was not supervising the persons working in his Department. It was quite clear from the statement of R.W. 2, when he stated that the petitioner got instructions and pro formas regarding the financial matters from the General Manager of Ghee Corporation of Pakistan. He conveyed those instructions and pro formas to the persons working in his Department and other Departments of the Suraj Ghee Industries. The pro formas duly filled were submitted by him. The data thus collected was put together by the Chief Accountant and then submitted to the General Manager. Ghee Corporation of Pakistan for his perusal and action. This clearly showed that he, as Supervisor, if the argument of the learned counsel for the respondents be accepted had no managerial or effective powers to deal with the persons working under his supervision. He could not take any disciplinary action against them. He could not send anybody on leave. He could not suspend anybody from service. He could not recruit new persons in his Department. So even as Chief Accountant he was nothing, but as already stated by me a glorified Accountant. No doubt the learned counsel for the respondents has referred me to leave applications Exh. R.2/1‑6 and argued that the petitioner had been sanctioning leave of his subordinates and thus was an effective supervisor. But this was begging the question. A careful study of these documents would show that the petitioner was not final leave sanctioning authority. Those leave applications are put up on printed Forms. It has three columns. One column is for the remarks of the Section Incharge. It appeared that the application, when brought in the office, was put up before the Section Incharge, who filled the relevant columns and signed it supplying the information of leave due. Thereafter there is the column whether the leave is recommended or not. This action has to be signed, but by whom, is not clear. But obviously this column appeared to be for the Head of the Department, i.e. Chief Accountant. Thereafter there is the final column, wherein it is written whether the leave is granted or not and underneath it there is a space for the signatures of Personnel Manager. So it is clear from the form that the final leave sanctioning authority was the Personnel Manager and not the Chief Accountant. If the petitioner by mistake has signed over the wrong column of "leave granted" after scoring "not granted", that did not mean that he was authorised to sanction the leave. If he was authorised to sanction leave, then what was the fun in obtaining the signatures of the Personnel Manager thereafter on this application. My view is that the petitioner has wrongly signed and scored out the words "leave not granted". He was only to recommend or withhold the recommendation for leave, it was clerical mistake. Even if true it did not and does not mean that the petitioner was an effective supervisor as envisaged in the definition of workman or worker.

13. Then again the learned counsel for the respondents has referred me to the other documents of Annual Financial Report of the Company, which (it has been asserted) the petitioner has signed as Chief Accountant and he was thus not a workman or worker. But then again he has signed those documents as the documents went through him and those signatures is~ no way provided him the authority in the management and affairs of the Suraj Ghee Industries Ltd. It was a simple authentication of accounts, the publication of which carried authenticity and final verdict only after and under the signatures of the Managing Director and the Board of Directors. His signatures were meaningless, if this Report was not approved by the Board of Directors or the Managing Director of the Company. So this also instead of helping the learned counsel for the respondents went against him. Mere designation or high sounding the name of office would not convert a worker or workman into an officer, if substantially and materially he performed the duties of a worker or a workman according to the provisions of the Labour laws. The witnesses R.W. 1 and R.W. 2 could not deny, although they were interested to disprove the contention of the petitioner on personal grounds as their own promotion was and is affected, if the petitioner's dismissal is set aside, that the petitioner had been working and worked with his own hands. They D also could not deny that while preparing the budget and regulating the finance, he used his skill. They admitted that he after the submission of the data by the staff working under him according to the orders of the General Manager of the Ghee Corporation of Pakistan studied it, converted it into a joint and comprehensive statement and then submitted it to the General Manager of the Ghee Corporation of Pakistan. So he was working manually as well as using his skill and intellect in preparing the budget and finances of the Company. The assertion of the petitioner that he as Chief Accountant worked manually with skill and intellect could not (effectively) be rebutted by the R.W.1. They had to concede in one form or the other against their wishes that the petitioner had to work with his skill and hands in the preparation of the budget and financial matters of the Suraj Ghee Industries Ltd.

14. The pay that he had been drawing to the tune of Rs.5,000 was of no help to the respondents. The amount of remuneration is not substantial and basic thing in the definition of worker or workman. What is basically required is the nature of duties done by a person. It has been proved that the nature of duties and work done by the petitioner was not such, which let him fall within the definition of employer. Once this was done, then the other definition has to be looked into, i.e. the definition of worker and workman. The petitioner did and does qualify according to the nature of his duties and the position he occupied that he was a worker or workman. It has been admitted by both the RWs. that the petitioner had no administrative power even in his own Accounts Department as Head of the Department'. Under the circumstances there is no way out but to hold that he fully qualified to be declared as a "worker" or "workman".

15. The third point that has been raised was and is about the territorial jurisdiction of this Court. It has been stated that the Head Office of the Suraj Ghee Industries Ltd. was located on Link McLeod Road, which was within the Police Station of Guwalmandi. The Police Station of Guwalmandi was not within my jurisdiction. It has been further stated that the impleading of Ghee Corporation of Pakistan as well as Secretary of Ghee Corporation of Pakistan as parties to the petition was and is irrelevant. No relief has been claimed against them and so they had been made parties to create the territorial jurisdiction of this Court as their Head Office was and is situated within the jurisdictional area of this Court. But that again did not help the learned counsel for the respondents. It has been asserted and not denied by the respondents that the petitioner originally joined the service of the Ghee Corporation of Pakistan. His services were transferred or placed at the disposal of Suraj Ghee Industries by the Ghee Corporation of Pakistan, i.e. Ghee Corporation of Pakistan has lent its own employee to Suraj Ghee Industries. Then again it has come in the statements of R.W. 1 and R.W. 2 that the overall charge of management of financial as well as other affairs of Suraj Ghee Industries remained with the Ghee Corporation of Pakistan. The Manager or General Manager of the Ghee Corporation of Pakistan controlled not only the management, but also the finance and annual budget of this Organization. It had never been (in fact it had never been proved on record) the case of the respondents that the services of the petitioner were not handed over by the Ghee Corporation of Pakistan to Suraj Ghee Industries. It had not dissociated completely from the petitioner. Nothing has been brought on the record by the respondents to show that the petitioner had been employed in the Suraj Ghee Industries directly and independently by the management of Suraj Ghee Industries whether before nationalization or after nationalization or taking over of Suraj Ghee Industries by the Ghee Corporation of Pakistan. So it was established that the petitioner was serving in the Suraj Ghee Industries as an employee of Ghee Corporation of Pakistan. It had nowhere been the case of the respondents that they had never and they will never in future take into consideration the service period spent by the petitioner with the Ghee Corporation of Pakistan towards the calculation of remuneration to be allowed to the petitioner at the time of his retirement. In view of this, the petitioner was very much within his right to implead Ghee Corporation and its Secretary as parties to the proceedings, his stand and argument throughout had been that if at all he was not required by the Suraj Ghee Industries, then his dismissal on the score of lack of confidence by the management was not justified. He should have been reverted back to his substantive post, which he was holding and from which he had gone to Suraj Ghee Industries as Chief Accountant. In that view of the matter, then the Ghee Corporation of Pakistan and its Secretary were necessary and proper parties and they have been rightly impleaded as parties. Strangely enough the Ghee Corporation of Pakistan and its Secretary in their reply to the petition never stated that they had no connection with the petitioner after his transfer from Ghee Corporation of Pakistan to Suraj Ghee Industries or after his having been placed at the disposal of Suraj Ghee Industries. The absence of this denial expressly or by implication on the part of the respondents in their written statement completely closed the door of any argument on the score that they were irrelevant parties and they had no obligation towards the petitioner. If the argument of the learned counsel for the respondents on that score had to be taken into consideration, it was imperative for Ghee Corporation of Pakistan and its Secretary to outright deny any obligation towards the petitioner after his services had been placed at the disposal of Suraj Ghee Industries. But that had not been the case of the respondents Nos. 1 and 2, as such this argument was not available to the learned counsel for the respondents. In view of this, the respondents Nos. 1 and 2 were necessary and proper parties and were correctly 1 impleaded as parties to the petition. Once this was conceded, then their Head Office was located within the jurisdictional area of this Court and this Court was fully competent to entertain the petition of the petitioner. The territorial, jurisdiction is, therefore, settled accordingly.

16. It has been held and decided by me that the petitioner was a worker and workman and not an employer as defined in the Labour Laws. Once this was there, then the petitioner was entitled to the protection of Labour Laws: It had been the case of the respondents that the services of the petitioner had been terminated simpliciter, i.e. without assigning any reason and without any fault or misconduct on the part of the petitioner. This obviously could not be done by the respondents under the Labour Laws. The services of the petitioner could only be terminated, if the post of the petitioner, against which he was working, had been abolished or became redundant or no longer required by the respondents or if the I petitioner was disqualified technically to hold that post, or the secured or guaranteed right of some senior person to the petitioner had been infringed, and that post had been made available to set the wrong right. In that case the petitioner's services cannot be terminated. He was and is entitled to be reverted back to the post, from where he was promoted as Chief Accountant and that post was with the Ghee Corporation of Pakistan. Under the circumstances, the respondents could not terminate the services of the petitioner simpliciter. The provisions of the Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 barred the action in question.

17. The upshot of the whole discussion is that the petitioner is entitled to the relief prayed for. It is granted. The petitioner be re‑instated in his service with full back benefits within one month of this order. A.A./613/Lb. P Grievance petition allowed.