1994 PLP 11 (PLC)

2. This question arises in the following circumstances. Sadiq Ali Khan, petitioner herein, was employed as Assistant Accountant in K.S.B. Pumps Co. Ltd. On 10‑1‑1987, he was charge‑sheeted on certain allegations, which need to be mentioned here. In the inquiry held by the management, as the petitioner was found guilty of the charges he was dismissed from service vide order-dated 18‑2‑1987. Feeling aggrieved, the petitioner invoked the jurisdiction of the Punjab Labour Court No. 2 by filing an application under section 25‑A of the Industrial Relations Ordinance, 1969 which was contested by respondent No.3 on various pleas inter alia that as the petitioner was not a workman, jurisdiction of Labour Court could not be invoked. Vide its order dated 3rd November, 1990, the Labour Court accepted the application of the petitioner and directed his reinstatement with full back benefits. On appeal by the respondent No. 3, this order was set aside by the Punjab Labour Appellate Tribunal on 19th December, 1990 and case was remanded to the Punjab Labour Court on a technical ground. The Labour Court once again directed reinstatement of the petitioner with full back benefits by its order dated 17;2‑1991. This order was challenged by respondent No. 3 again before the Punjab Appellate Tribunal by filing an appeal which was accepted by it on 24th March, 1991 primarily on the ground that as the petitioner was not a workman, he could not have filed an application under section 25‑A of the Industrial Relations Ordinance, 1969. Hence this petition.

3. Mr. Asmat Kamal, learned counsel for the petitioner has contended that the learned Labour Appellate Tribunal acted under legal misconception by considering as to whether or pot petitioner was a workman within the meaning of Industrial Relation Ordinance, 1969 though in the present case, law applicable under which the appellant claimed to be workman was the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Learned counsel for the petitioner has emphasized that the definitions in the two enactments are materially different having different connotations. On merits, it was maintained by the learned counsel that as the petitioner was doing clerical work, he was clearly a workman within the meaning of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

4. In support of his contention, the learned counsel for the petitioner has relied upon the judgment of Supreme Court in Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 SCMR 304). Learned counsel has also pointed out that while coming to the conclusion that the petitioner was not a workman, the Labour Appellate Court has totally ignored the evidence led by the petitioner as also certain admissions made by the witnesses produced by respondent No. 3.

5. Learned counsel appearing on behalf of respondent No. 3 has, however, supported the judgment of the Labour Appellate Tribunal and view taken by it by contending that the onus to prove that the petitioner was a workman was upon him which he failed to discharge by leading sufficient evidence and as such Punjab Labour Appellate Tribunal was fully justified in taking the view which it did that the petitioner did not fall within the definition of a workman. In support of this submission, Ganga R. Madhani v. Standard Bank Limited and others (1985 SCMR 1511), United Bank Ltd. and another v. Muhammad Ali and 2 others (1984 PLC 1), National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad (1993 SCMR 672) and Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore arid others (1993 SCMR 1370) were cited by the learned counsel for respondent No. 3.

6. In order to appreciate the contentions of the learned counsel for the parties, it is necessary to refer to the definition of workman as appearing in section 2(xxviii) of the Industrial Relations Ordinance, 1969 and section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which are as under:‑‑ "Section 2 (xxviii)_of the Industrial Relations Ordinance. 1969: ‑?`Worker' and `workman' means any person not falling within the definition of employer who is employed (including employment (as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid‑off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge retrenchment, lay off, or removal has led to that dispute but does not include any person‑‑‑ (a)??????? who is employed mainly in a managerial or administrative capacity, or (b)??????? Who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reasons of the powers vested in him, functions mainly of managerial nature." Section 2(i) of the 1968 Ordinance: ‑‑`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."

7. Learned counsel for the petitioner is correct in submitting that the Punjab Labour Appellate Tribunal has examined the case from the angle as whether or not petitioner was a workman within the meaning of Industrial Relations Ordinance, 1969 and section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not considered. However, the matter does not end here as in view of the findings recorded by the Punjab Labour Appellate Tribunal which, as would be presently shown, are fully borne out from the record, petitioner does not qualify to be a workman even under the West Pakistan Industrial and Commercial Employment (Standing Orders) Or4inance,,1968.

8. From a review of the decided cases including those cited by the learned counsel for the parties, certain legal principles which can be deduced are; firstly that the onus to prove that a particular person was a workman within the Labour Laws was upon him and that onus must be discharged by leading sufficient evidence; secondly that while determining this question, it is the substantial nature i.e. pith and substance of the duties of the person concerned which, should be taken into consideration and neither the designation of the post nor salary is of much relevance; and lastly that while considering nature of the duties, subsidiary and incidental nature of duties are not to be given much importance.

9. Learned counsel for the petitioner has contended that as the petitioner was doing clerical work and was not incharge of the establishment, he was a workman. The question as to whether the work being performed by the petitioner was clerical in nature is essentially one of the facts. The Punjab Labour Appellate Tribunal after reviewing the entire evidence found that the petitioner was working in supervisory capacity and was not doing clerical work. This fact is born out from the copies of the leave applications of the workmen Exhs. R.6 to 9 which were recommended by the petitioner. It would be of advantage to reproduce the findings recorded by the Punjab Labour Appellate Tribunal in this behalf:‑‑ "Exhs. R.6 to R. 9 are the Leave applications recommended by the respondent. Exhs. R.10 and R.11 are the overtime sheets bearing the signatures of the respondent. Exhs. R.12 and R.13 are traveling vouchers checked by him. Vide order Exh. R.15 the respondent recommended for the temporary appointment of Mr. Sadaqat Ali in a leave vacancy. Exh. R.16 is the pay roll checked by the respondent. Leave applications can be recommended by the controlling officer only because he is responsible for the smooth running of the establishment. Since the respondent had been recommending leave applications, it is clear that he was the In charge and supervising the employees whose leave applications he had recommended. R.W.2 is one of those persons whose leave applications had been recommended. Those applications are Exh. R.6 and Exh. R.7. Likewise overtime wages cannot he paid unless the supervisor or controller certifies that overtime was taken from the workers concerned. Exhs. R. 10 and R. 11, there fore go to show that the respondent had supervisory powers. Exh. R.15 recommendation for temporary appointment in a leave vacancy further shows that the respondent was the Incharge of his establishment. Exh. R.15 shows that since the period of leave was long, therefore, he was of the opinion that without a substitute the branch concerned could not smoothly run. The oral statement of the respondent was that he had been doing clerical work but no record of the said work was summoned from the appellant and was produced in evidence. In the absence of such an evidence it cannot be said that actually the work done by the respondent with his own hand was merely clerical." As is obvious from the above, these findings were rendered on review of the evidence on the record. Learned counsel has, however, relied upon the so-?called admission made by R.W.2 to the effect that the petitioner was working with his hands. This aspect was considered by the Punjab Labour Appellate Tribunal which observed that the petitioner has failed to prove that work being done by him, though with his hands, was clerical in nature. As has been pointed out by the learned counsel for respondent No. 3, even the persons employed at the highest level though not workmen sometimes do work with their own hands but that fact itself would not be conclusive. It is the overall nature of duties of an individual which is determinative of the question. In Dost Muhammad Cotton Mills' case (1979 SCMR 304) cited by the learned counsel for the petitioner himself, it was on examination of charter of duties that the employee was held to be workman. Here no such document was produced by the petitioner nor summoned by him. A reference to the applications of leave made by persons in employment of the respondents (Exhs. R.6 to R.9) would show that the petitioner had recommended these applications by signing relevant column of the applications which were reserved for signatures by the head of the Department. The signatures on these documents are not disputed by the petitioner. Similarly, the respondents have placed on record a note signed by the petitioner where he had recommended the appointment of Mr. Sadaqat Ali Khan on temporary basis. This clearly was not a work which could be‑said as mere clerical in nature. Moreover, the petitioner has been verifying the travelling expenses vouchers of other workmen. It is discernible on the record that there were other persons under the respondents who were performing clerical work which was being supervised by him. He, therefore, cannot claim to be a workman.

10. Be that as it may, it is well‑settled that even if two views of evidence are possible, this Court cannot in the exercise of Constitutional jurisdiction, substitute its finding for that recorded by the lower Labour Appellate Tribunal by re‑appraising the evidence. Suffice it to say that‑ impugned judgment of the Punjab Labour Appellate Tribunal does not suffer from legal error, much-less jurisdictional defect. In view of what has been stated above, this petition fails and is accordingly dismissed, leaving the parties to bear their own costs. AA./S‑370/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.