2025 PLP 210 (PLC)

Through this Petition, the Petitioner has impugned Order dated 29.04.2019 passed by Full Bench of NIRC at Karachi through which the Appeal filed by Respondents Nos. 2 and 3 under Section 47(3) of the Industrial Relations Ordinance, 2002 has been allowed and Judgment dated 26.05.2005 passed by the Labor Court-V at Karachi through which the Grievance Petition of the Petitioner was allowed has been set aside.

2. Heard the Petitioner in person and learned Counsel appearing on behalf of Respondent Bank and perused the record. Though this case has a very checkered history as time and again orders have been passed by the forums below and has been remanded to one Court or to the other due to several changes in law including promulgation of Industrial Relations Ordinance, 2002 and Industrial Relations Act, 2012; however, for the present purposes, the relevant facts which needs to be considered are that finally, the order of the Labor Court was transmitted to full bench of NIRC which has been pleased to set aside the order of the Labor Court on the point of jurisdiction Inasmuch as it has been held that the Petitioner was never a workman, as defined under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; hence, could not have invoked jurisdiction of the Labor Court. It would be advantageous to refer to the findings of the Full Bench of NIRC which reads as under:-- "

5. We have already heard the arguments of the learned counsel for the parties and have perused the record.

6. Crucial point is involved in the present appeal that "whether the respondent is a workman or not". The respondent Mr. Salahuddin Anjum has admitted that he was Officer Grade-III and drawn salary of Rs.10401.50 and that his salary and terms and conditions were governed by the pay commission. He also admits in his cross-examination about signing the vouchers. It is well settled law that if a person approach to the labour Court for redressal of his grievance claiming himself to be a workman and such status of workman categorically denied by the employees than the burden of proof lies on the shoulder of that person whether his status is of workman or not. Mere designation is not determining factor but the nature of job to which he performed at the relevant time and that can only be determined through documentary evidence. Admittedly, the respondent was Officer Grade-III and was performing mainly supervisory nature of work as his main and primary function. The respondent has miserably failed to bring an iota of evidence that he performed manual or clerical nature of job at the appellant's bank. It is the verdicts of the apex court that Officers of Bank are not workman. On this legal point we put reliance on case law reported as 1985 SCMR 1511, 1999 SCMR 488 at 491, 2009 PLC 291 (SC) (sic) , 2004 PLC 371, 2008 SCMR

488. As a result of above discussion we hold that the respondent was an Officer Grade-III and not a workman, hence the respondent cannot invoked the jurisdiction of the labour court in the present matter. Hence, the appeal of the appellants is accepted and the impugned order dated 26-5-2005 passed by the learned Presiding Officer Labour Court No.V Karachi is set aside and the grievance petition be returned to the respondent for presenting it before the forum of appropriate jurisdiction. No order as cost. File be consigned to R.R."

3. It is a matter of admitted fact that when the impugned action was taken by the Respondent, the Petitioner was working as an officer of Grade-III and his salary and terms and conditions were governed by the Pay Commission Award meant for Officers and Executives as at the relevant time the Respondent Bank was a Nationalized Bank. This fact has been admitted by the Petitioner in his cross-examination that "My Salary, terms and conditions used to be governed by Pay Commission Award". In that case he could not have claimed to be a workman at the same time as his wages were not as per the Wages Commission Award for workman.

4. Moreover, on perusal of the Grievance Petition, it does not reflect that the Petitioner ever made any effort to establish with any supporting material that he was a workman and not an officer of the Bank. The initial burden in this regard was fully on the Petitioner which he has failed to discharge and therefore, even if we were to look into the evidence of the Respondent Bank, it does not materially affect and satisfies as to the discharge of initial burden by the Petitioner. Today, while hearing the matter, as an indulgence, for the reason that since the Petitioner is appearing in person a query was made as to what work he was performing and in response, the Petitioner has stated that he was assigned the job of clearing/dealing with the pay orders received In the Bank. It is further reflected that he was also using a password provided Computer System of the Bank for performing his job. This assignment by itself, at least to our understanding, is not a job of workman and that too working in a Bank.

5. Lastly, even otherwise the Hon'ble Supreme Court very recently, in the case of Muslim Commercial Bank Limited has been pleased to consider this aspect and the burden on a person invoking jurisdiction of Labour Court and as to whether an officer would fall within the definition of workman or not. It has been held by the Supreme Court that even if an employee does not have any powers to hire or fire any person, this by itself would not mean that he is a workman. It has been further held that the nature of job as performed by the person must be evident from the record produced by him and then it has to be determined from perusal of such record as to whether he has to be categorized as a workman doing manual and clerical work or was discharging his functions in a managerial and supervisory role. The relevant findings in the aforesaid case reads as under:-

5. The fundamental issue before this Court is whether the Respondent is a 'workman' under the IRA, 2008, which definition was adopted by IRA, 2012 which is the law in the field. The word 'workman' has been defined in Section 2(xxxiii) of the IPA, 2012, which reads as follows: "worker" and "workman" mean 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 forms of employment are express or implied, and, for the purpose of any proceedings under this Act 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 who is employed mainly in managerial or administrative capacity. (emphasis supplied) The IRA, 2012 divides employment into two broad categories being and the latter doing managerial, administrative or supervisory work. In the event of a grievance, by a workman, of under labour practices2 the workman can invoke the jurisdiction of the Labour Court or NIRC for redressal of their grievance. The fundamental requirement for such invocation is that the grievance must be of a person employed in an establishment as a workman. The question as to who is a workman has been considered by this Court time and again in vadous cases. It has been consistently held that evidence must be produced to establish the nature of work and functions of the aggrieved claimant, particularly to show that the work is manual or clerical and not managerial or supervisory

3. It has been emphasized that the court has to give due consideration to the cumulative effect of the evidence in the context of the nature of work that the workman claims he was doing so as to determine if he is a workman and not rely on piecemeal evidence. For a claimant to be categorized as a workman, his designation alone is not relevant and cannot be considered conclusive evidence of his work status rather, it is the pith and substance of his duties and functions which must be manual or clerical

4. When understanding further the definition of 'worker' and 'workman', mere reliance on the fact that it is routine work does not make one's functions and duties clerical or manual and is not sufficient to establish the workman status. Manual and clerical work Involves physical exertion as opposed to mental or intellectual exertion. Furthermore, even routine work can involve the exercise of initiative, imagination, direction and supervision while maintaining registers, submission of reports, preparing of vouchers and statements and such jobs cannot be termed as being that of a workman simply because they are routine work. The judicial consensus of the Court with respect to the determination of the work status is clear such that the court must analyze the nature of the actual duties and functions of the employee to ascertain whether he falls within the ambit of the definition of worker or workman for which collective evidence must be examined to ascertain whether the duties were supervisory or managerial or whether they are manual or clerical

5. Therefore, in determining the work status, the overall nature of duties assigned to that person along with the functions of the job and the manner in which he performs his duties must be brought onto evidence and must be duly considered. With respect to the Bank-employees, this Court has settled that duties such as issuing cheque books, checking ledgers and preparing statements of accounts are not merely manual or clerical tasks, and do not fall within the works of a workman as they involve the exercise of discretion and decision-making6. "

6. To determine whether a person is a workman is a finding of fact, routed in evidence and the person who approaches the court on the basis of an averment that he is a workman carries the initial burden of proof to establish that he is a workman

7. To emphasize; when dealing with the question of burden of proof in establishing the status of the workman, this Court has consistently held that such burden lies on the person claiming to be a workman

8. It is the bounden duty of a person who approaches the Labour Court to demonstrate through evidence the nature of duties and functions, and to show that he is not working in any managerial or administrative capacity, and that he is not an employer. In the absence of such evidence, a grievance petition would not be maintainable before the Labour Court for lack of Jurisdiction

9. Moreover, it has been established that this burden of proof is to be discharged by the claimant through documentary and oral evidence supporting his claim that the nature of his work is, in fact, manual or clerical

10. This requires the production of evidence documentary or oral, which shows the nature of duties and the functions of the claimant pursuant to his claim that he is a workman. It has been clarified that even if there does not exist the power to hire or fire any person, the nature of the job as performed by the person must be evident from the holistic view of the record produced and that it has to be determined through overall record whether he was employed as a workman doing manual and clerical work and whether he was discharging his functions in a managerial and supervisory role

11. Accordingly, it's vital for the court to consider all the evidence and to ascertain the duties and functions of the person claiming to be a workman and to ensure that the workman has discharged his burden with the required evidence. When it involves bank employees, duties and functions are documented as is daily work, which should be brought before the court in evidence.

6. In view of hereinabove facts and circumstances of this case, it appears that the Full Bench of NIRC was fully justified in setting aside the order of the Labour Court and in returning the Petition to the Petitioner for presenting it before a forum of appropriate jurisdiction and no case for exception is made out. Accordingly, this Petition is hereby dismissed with pending applications. MQ/S-17/Sindh Petition dismissed.