1995 PLP 184 (PLC)

"Since very beginning and till the last day of my service I had been mainly doing clerical and skilled work i.e. to receive raw and packing material, ware‑housing, the work of assessments of bill of entries and arrangements of payments, to despatch the goods, to check and keep the material/goods according to the category and to liable it and to prepare the report. I had no hiring and firing power. All the workers/employees working in my department were under the direct control of Production Manager, Production Director and Dy. Tech. Director."

3. The respondent has stated that his services were governed by the Standing Orders and he had not signed any contract of service nor agreed to any other terms and conditions of service. The pay grades of the respondent were upgraded from time to time and the last pay grade given to him was of the Assistant Manager but the nature of his duties remained unchanged. the last salary drawn by him was raised to Rs. 8,550 per month and thereafter he was offered further increase of Rs.1,l60'to bring his salary to Rs.9,650 from 1‑1‑1990.

4. It has been admitted by the appellants that the respondent, during the entire tenure of his service, remained as Incharge Warehouse but it has been contended that he had Warehouse Supervisions, Assistants, Lift‑operators and Sweepers etc. working under him. Even according to the appellants the respondent's managerial duties amounted ‑ to forwarding their leave applications to the concerned Director. He could neither grant leave nor supervise and check their work in any manner. His rise in pay to the grade of Junior Manager from January, 1989 related to the pay grade only but he was not performing any duties as a Manager even according to the appellant Company.

5. On 11‑12‑1990 the respondent's services were terminated simpliciter without any enquiry and without assigning any reasons. In lieu of notice he was allowed three month's pay.

6. The respondent then filed a petition under section 25‑A of I.R.O. before the Labour Court, No. VI, Hyderabad alleging that his services were terminated illegally on 11‑12‑1990 and he was rendered jobless, that the was performing the duties of a `workman', as defined under the Standing Orders Ordinance, 1968. He has, therefore, come with his grievance petition to the Labour Court.

7. The learned Labour Court found that the respondent by nature of his duties came within the definition of workman and his petition was, therefore, maintainable. He, therefore, ordered reinstatement of the petitioner awarding him all the back benefits. The appellants feeling aggrieved by this order have preferred this appeal. The appellants have been granted ad interim stay in respect of reinstatement on condition of depositing the back benefits and this order they have, fully complied with.

8. It is contended ‑ by Mr. Muhammad Humayun, counsel for the appellant‑company that the respondent being a Junior Manager, just before termination of his service, was not a workman or worker as defined under the Standing Orders Ordinance, 1968 or the I.R.O., 1969. Under section 2(i) of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (No. VI of 1968) "workman" is defined as: "Any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

9. Admittedly the respondent was appointed as a warehouse‑keeper doing skilled work in the Dyes Department and also doing the clerical work. He was given pay rise from time to time raising his grade to that of Junior Manager but there is nothing in evidence to show that he was assigned any Managerial Duties, as such. Forwarding of leave application to the higher authorities for final orders is a routine job. It is not a function involving supervisory control a discretion. No where, in the affidavit filed, has the assertion of the respondent been rebutted that he was doing the job as a workmen and not as Manager. It has been held in a number of such disputed cases that the approach should be not from the angle whether the person concerned is a supervisor, officer or manager or the extent of emolument he gets, but from the angle of examining the actual work he performs, regardless of his designation and pay.

10. The learned counsel for the appellant has referred to a decision reported in PLD 1986 SC 103 on the point. It has been held in that decision also that the test for determining the question whether an employee is a workman, depends on the nature of the work done by the employee and not his designation. The question to be examined is whether manual or clerical work is incidental to the main work or is substantial part of it. It has not been denied that the respondent in this case was doing skilled, manual or clerical work in Dyes Department and .has no qualifications requisite for an Officer. In PLD 1988 Supreme Court 180, cited by the learned counsel, it has been held that the test for determining the question whether an employee is a workman within the meaning of the statutes is the nature of the work done that is essential and fundamental consideration. The main feature of the employment mast be manual or clerical and not managerial or supervisory. This is always a question of fact and no hard and fast rule can be laid down. In 1992 SCMR 505 on the question of "workman" it has been emphasised that it the nature of work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. It has been observed that the workman means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or reward. It does not speak of excluding a person who is employed in a supervisory capacity also and draws wages exceeding Rs.800 per month. It has been observed in that judgment, relying on PLD 1986 SC 103, that "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 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 that a person employed in a supervisory capacity does soma 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 features, the pith and substance of his employment must be manual or clerical before the definition is attracted.

11. The learned counsel for the respondent has also relied on the question regarding nature of duties that would determine whether a person was a worker or an officer. The designation or grade would be immaterial. He too has relied upon the decisions cited earlier in this Order.

12. In this case the respondent continued to work as warehouse‑keeper. His ten years service entitled him to increments raising his final pay to the initial grade of Junior Manager. But he was not designated as such nor were the duties of that post assigned to him. If by reason of seniority he was given some supervisory duties in addition to his original functions, they did not form substantial part of his work. Any one else was not posted as warehouse‑keeper in his place nor was he transferred to rill the post of Junior Manager.

13. Therefore, on the evidence recorded by the lower Court I come to the conclusion that the respondent continued to work as Warehouse‑Keeper mainly doing the same type of work in spite of his rise in the pay‑grade to the initial grade of Junior Manager.

14. The decision of learned Labour Court is, therefore, maintained and the appeal is dismissed. The respondent may be reinstated in service with all the back benefits. Amount deposited in Court may be withdrawn by the respondent. H.B.T./2385/Lb.S Appeal dismissed.