2001 PLP 274 (PLC)

(i) Whether the appellant was workman within the meaning of Standing Orders Ordinance? and (ii) Whether the resignation given by the appellant was voluntary free from duress and intimidation?

3. Taking up the first point, it goes without saying that the burden was on the appellant to prove that he was workman for the purpose of invoking section 25‑A, I.R.O. and other relevant provisions of labour laws. In this connection reference may be made to 1976 LLC 580=PLJ 1976 Pesh (sic). In my opinion the appellant has failed to discharge this burden. His only evidence in support of his case is his affidavit‑in‑evidence which is very sketchy and does not render him much help. It does not mention anywhere that appellant was engaged in doing any manual or clerical work. All what the appellant says in his affidavit is that after joining the respondents' service he had been performing his duties as a permanent workman under provisions of West Pakistan Ordinance No.VI of 1968. He has not elaborated what sort of duties he was performing as a permanent workman. It may be pertinent to refer to the relevant portion of the affidavit as follows:‑‑ "That I joined the respondents' establishment on 16‑5‑1989 as Air Conditioning Engineer (and) on satisfactory completion of the probationary period I was confirmed as such and that I was subsequently renamed as Utility Engineer with no change in my practical duties. "

4. Relying on the appellant's own assertions as stated above, the learned respondents' counsel contended that the Supreme Court has held in the case reported as PLD 1986 SC 103, that Air‑Conditioning Engineer was not a workman. It appears that in the reported case it was admitted by the employee himself that the nature of his duties included the maintenance and rectification of Air‑Conditioning Plant etc. In view of such admission it was held:‑‑ "There can, therefore, be no doubt that the main and substantial part of his duties were those of a skilled Engineer, to be performed by application of expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour and while doing that work casual or occasional work involving physical exertion does not determine the nature of the duties of an employee as a whole. Mental toil would not fall within the expression 'manual labour'."

5. The above reported case is in my opinion on all fours with the present case. The appellant's admission that right from the start he joined respondents as Air‑Conditioning Engineer which was later changed as Utility Engineer with no change in his practical duties is enough to hold that he was not a workman within the meaning of the Ordinance of 1968 because his main performance was not a manual work but was rather a mental toil and the incidental manual/physical exercion while making mental toil did not bring the appellant within the expression of manual work.

6. Apart from above the impugned order clearly shows how the learned Labour Court has taken pains to prove by documentary evidence that the appellant was not a workman doing any manual labour but was engaged in performing managerial/supervisory role. The said Court has rightly relied on documents R.14, R.16 and R.19 which proved beyond any doubt that the appellant not only sanctioned leave but also signed the sanction order as head of the section. The learned Judge of the Lower Court has also referred to gate passes Exh.R.18, R.19, R.20 and R.21 which admittedly bear his signatures as Section Head. In this way the other documents namely Works Order relating to M/s. Sun Engineering (R.22, R.17 and R.25) go to show that the appellant was performing supervisory duties as a Managerial/Section Head and such functions were definitely. not those of a workman. It is also pertinent to take note of document produced as R.4 which is obviously a letter of the appellant addressed to the Director, Personnel and Human Resources of the respondents' company as A/C Engineer in 1989 and in that capacity he was responsible for complete utilities of the company's huge set up of four factories Angro‑Textile Chemicals Dyes and Pharma. He has further admitted that due to his hardwork and outstanding performance, the respondents' company changed his designation in 1993 as Utility Engineer. In the end of the letter he has requested the company that letter be issued making clear his designation as Utility Engineer. The aforesaid letter which contains the appellant's admissions has also gone further to prove that appellant was not a workman but was doing a role of managerial/supervisory nature in the respondents' establishment.

7. The learned Judge of lower Court has also rightly placed reliance on Exhs.R.27, R.28 and R.29 which make a Log Book throwing light on the nature of duties the appellant was performing. He was obviously responsible for assigning the duties of workers for night and morning shifts which proved that he was actually working as a Utility Engineer/Manager.

8. Reference has also been made by .the learned lower Court to Exhs.R.W.4 and R.W.5 being the work orders which the appellant had requisitioned and signed. These documents the learned Judge has rightly remarked do not reflect the duties of a workman. 'There is yet another document R.2 which shows that appellant was an officer in the executive cadre. Similarly the document, R.5 which is respondents' company's letter addressed to the appellant promoting him as Junior Manager also shows the status of the appellant being Executive Officer rather than manual worker. It is also an admitted fact that in addition to other dues the appellant was also paid three months' salary in lieu of notice. Had he been a workman he would have been given either the notice of 30 days or pay of that period in lieu of notice. By agreement at page 73 the appellant has been allowed car‑loan to the extent of Rs.1,50,

000. Obviously such a facility was not available to a manual worker and is, therefore, further evidence to prove that appellant was not a workman.

9. In view of the overwhelming documentary evidence discussed above coupled with appellant's own admissions the learned Labour Court has rightly held that appellant was not a workman and therefore, his grievance petition under section 25‑A, I.R.O. was not maintainable.

10. Coming to the second point namely whether the resignation tendered by the appellant was voluntary or was the result of pressure exerted upon him, there is no doubt that the alternate option to resignation as given to the appellant was to face disciplinary action for his insubordination. Manifestly the alternate option involved the fear of punishment but that alone could not be held to render the resignation as involuntary. After all the appellant was a responsible employee of the respondents' company and therefore, was expected to consider all pros and cons before taking a decision one way or the other. If the allegations of insubordination levelled against him were, in his opinion, frivolous and devoid of any solid and substantial proof he could even muster up courage to face the disciplinary enquiry or proceedings which if not supported by authentic evidence could prove abortive. Therefore, I cannot persuade myself to believe that the appellant was so scared of the enquiry/disciplinary action that he readily chose the alternative of resignation. Even if he was overwhelmed by the fear of punishment resulting from any such enquiry/disciplinary action nobody compelled him to accept the payment of all his claims and dues by way of full and final settlement. Since he had done so he should have realized that he was barred from taking legal action against termination of his services resulting from his resignation. In this connection reference is made to the precedent case reported as 1983 PLC

201. In the said case the amount representing accrued wages, notice salary and Provident Fund collection was tendered through cheques by the employer alongwith Termination Order and since such cheques were accepted and encashed by workman without demur, it was held that the right to invoke jurisdiction of Labour Court stood extinguished. In the present case also it is appellant's own admission that because he had no other means of livelihood he had got the cheque of his claims and dues given to him by the respondents' company in full and final settlement encashed by him. If so his grievance, even he was a workman, came to an end and he could not file grievance petition. In view of above discussion, appeal is dismissed. H.B.T./15/K(L. Trib.) Appeal dismissed.