1992 PLP 680 (PLC(CS))

4. The only question involved in this case is whether the respondent was workman or not.

5. A "workman" has been defined under section 2(i) of the Ordinance to mean:- "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." "Employer" has been defined under section 2(c) of the Ordinance. Under clause (iii) of section 2(c) the word "employer" includes any person responsible to the owner for the supervision and control of such establishment".

6. The "worker" as defined in section 2(xxviii) of I.R.O., 1969, excludes `a person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem'.

7. The respondent had, in para 3 of her grievance petition, given details of her duties which may be reproduced as under:- "That the applicants performed her duties in stitching section. She used to manually distribute cloth personally for stitching to 40 workers in the section. She used to write the work entrusted to every worker on his/her Production Card every day. She then used to collect the clothes stitched by 40 workers personally to be delivered to Wrack Incharge."

8. In her affidavit-in-evidence she had repeated the same duties. In the cross-examination she had denied the suggestion that she used- to V supervisory work of the appellant factory but she admitted that she was promoted as supervisor as per Exh. A-5 but contended that the nature of duties continued to be manual and clerical even thereafter. She had admitted that she used to sign leave applications of the workers in her capacity as supervisor and had admitted her signatures on Exhs. R-1 to R-22. She had admitted in the cross-examination about 30 to 40 workers work under a supervisor and about 35 to 40 workers used to work under her. She had further admitted that she used to get the stitching work done through workers.

9. The definition of "workman" under the Ordinance had been considered at length by their Lordships of the Supreme Court in the case of General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik PLD 1986 Supreme Court

103. Their Lordships have observed:- "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 the 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 some 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."

10. The question as to whether the respondent was workman or not would have to be decided in the light of law laid down by their Lordships of the Supreme Court in the above case. It is settled-law that the onus is upon the workman to prove that he is a workman within the definition of the Ordinance. The appellants have not produced the `Job Description' with regard to the duties of the respondent. Her evidence with regard to her duties has been reproduced above. Mr. Malik Shahid Pervez, General Manager of the appellant establishment had stated in his affidavit-in-evidence that cloth used to be distributed amongst Operators by Line Checker under the supervision of the supervisor and Line Checker used to write work introduced to the different workers on the production card and that the respondent used to supervise and control the work introduced to the workers and used to sign the production card.

11. From the evidence of Malik Shahid Pervez it appears that the respondents were conscious of the fact that the distribution of cloth to the workers and collection of cloth from the workers involved manual work and the writing of the work entrusted to different workers on the production card involved clerical work and therefore they introduced the post of line checker, who is alleged to have been doing the said work. In other words the distribution of the cloth and the collection of the cloth from the operators and writing in the production card the work entrusted to each of different workers were not normal duties of the supervisor but were to be done by Line Checker. No Line Checker has been examined to show that this work was being done by such Line Checker. What is more, I find that no such question has been suggested to the respondent in her cross-examination. No production card has been produced to show that writing of record was not made by the respondent but was made by some Line Checker. Non-production of the evidence, which the appellants could have produced, would rise adverse presumption against the appellants.

12. No doubt the respondent was promoted and designated as supervisor but that alone would not take her out of the purview of the definition of the workman. The deciding factor would be the nature of work she used to be actually doing. Keeping in juxtaposition the evidence produced by both the parties, it will be seen that the respondent was doing the manual work of distribution of cloth to her workers and collection of the same from the operators, writing the work on the production card of each of the workers, which work does not appear to fall within the ordinary duties of a supervisor but according to the witness of the appellant this work had to be done by the Line Checker under the supervision of the appellant. Therefore, such a work cannot be considered as work incidental to or ancillary to the work of supervisor.

13. The evidence on record clearly shows that in addition to supervisory duties the respondent was performing additional manual and clerical work which was not incidental or ancillary to her duty of supervisor as such she would be a workman as defined under the Ordinance. This view also finds support from the fact that name of the respondent was admittedly shown as `workman' in the list of permanent workers issued by the Registrar of Trade Union Exh. R/1. There is no evidence to show that the appellants filed any appeal or protest against the inclusion of her name in the list of workers. It rather bears the `Seal' of the appellants, which indicates acceptance of list by the appellants. She will, therefore, be entitled to the protection under Standing Order 12(3) of the West Pakistan Industrial and Commercial -Employment (Standing Orders) Ordinance, 1968 which requires that services of workman shall not be terminated except with an order in writing explicitly stating the reason for the action taken. In the termination order of the respondent which has been produced as Annexure `A' to the grievance petition no reason for termination is shown. As such this termination order is not tenable and has rightly been set aside by the learned Labour Court.

14. I see no merits in this appeal which is, accordingly, dismissed. M.Y.H./1877/Lb. S Appeal dismissed.