Workman

Instead of choice of the competent authority it is requirement of law that penalty should commensurate with gravity of allegation.

Authority under Payment of Wages Act, 1936 allowed complaint filed by respondent/employee regarding recovery of his salaries

Plea raised by petitioner / employer company was that respondent / employee was not workman therefore, the Authority had no jurisdiction in the matter

Validity

Phrase "person employed" under Payment of Wages Act, 1936 must be interpreted in light of definition of "workman" under Industrial Relations Act, 2012

Only those who engage in manual, technical or clerical labour as defined by law can seek protection or relief under Payment of Wages Act, 1936

As per job description and responsibilities of respondent / employee, he did not perform the kind of duties that would bring him within definition of "workmen" under the provisions of Payment of Wages Act, 1936 or Industrial Relations Act, 2012

Respondent / employee did not qualify for legal protections or remedies available under Payment of Wages Act, 1936

Authority under S. 15 of Payment of Wages Act, 1936 did not have jurisdiction to hear or decide complaint of respondent / employee

High Court set aside order passed by the Authority as the same was passed without jurisdiction

Constitutional petition was allowed, in circumstances.

Mere nomenclature of an assigned post is not relevant in determining the status of an employee and assessing whether he is performing the duties of a worker or workman, or a manager, officer or supervisor

Rather the paramount and predominant consideration is the nature of the job, and if any employee claims that he was performing the duties of a worker/workman, the burden lies on him to discharge if he claims contrary to the job description assigned to him separately or by means of appointment letter or subsequently made any change in the job description through up-gradation or promotion which detached or estranged the status of employee from workman to managerial or supervisory post

Litmus test is the nature of job actually being performed rather than the nomenclature of the job simpliciter.

Held, that record reflected that the petitioner was posted as Manager of a private bank's branch and also had the power of attorney of the Bank and two other persons, namely the Operation Manager, and the Chief Teller, both were performing their duties under the petitioner's supervision

Petitioner admitted that his functions included managing, coaching and monitoring of staff; it was also his job to physically verify and check vouchers and cash at the time of closing of the Branch every day

During further cross-examination, the petitioner admitted that in light of the powers granted to him in the power of attorney, he used to supervise, cancel and pass instruments during the course of his daily work

Wide ranging and comprehensive powers conferred upon the petitioner were of such nature and responsibility that could only be granted to a person having the status of manager, officer or the person having the category of supervisory duties

All courts below after proper appreciation of facts rightly held that the petitioner was not 'workman', hence he could not maintain a grievance petition in the NIRC

Petition for leave to appeal was dismissed and leave was refused.

Mere nomenclature of an assigned post is not relevant in determining the status of an employee and assessing whether he is performing the duties of a worker or workman, or a manager, officer or supervisor

Rather the paramount and predominant consideration is the nature of the job, and if any employee claims that he was performing the duties of a worker/workman, the burden lies on him to discharge if he claims contrary to the job description assigned to him separately or by means of appointment letter or subsequently made any change in the job description through up-gradation or promotion which detached or estranged the status of employee from workman to managerial or supervisory post

Litmus test is the nature of job actually being performed rather than the nomenclature of the job simpliciter.

Held, that record reflected that the petitioner was posted as Manager of a private bank's branch and also had the power of attorney of the Bank and two other persons, namely the Operation Manager, and the Chief Teller, both were performing their duties under the petitioner's supervision

Petitioner admitted that his functions included managing, coaching and monitoring of staff; it was also his job to physically verify and check vouchers and cash at the time of closing of the Branch every day

During further cross-examination, the petitioner admitted that in light of the powers granted to him in the power of attorney, he used to supervise, cancel and pass instruments during the course of his daily work

Wide ranging and comprehensive powers conferred upon the petitioner were of such nature and responsibility that could only be granted to a person having the status of manager, officer or the person having the category of supervisory duties

All courts below after proper appreciation of facts rightly held that the petitioner was not 'workman', hence he could not maintain a grievance petition in the NIRC

Petition for leave to appeal was dismissed and leave was refused.

Employees of Post Office employed in any occupation ordinarily involving outdoor work were included in the term "workman" as defined in the Workman's Compensation Act, 1923 and were excluded from the term "civil servant" as defined in the Civil Servants Act, 1973.

Question whether a person is a workman or not does not depend upon the designation but on the nature of duties.

Nature of duties determined whether a person was a workman or not.

Duty as a driver predominantly involved manual work, therefore, he came within the meaning of workman.

If a decision given by the Labour Court was not given effect to or complied within seven days or within the period specified in the decision, delinquent person or authority would be punished with imprisonment for a term which could be extended to three months or with fine which could be extended to five hundred thousand rupees

Revision petition was dismissed in circumstances.

Employee was terminated from service against which grievance petition was accepted and he was reinstated with back benefits

Validity

Duties assigned to the employee were clerical and of manual nature

Labour Court had dilated upon the issues in an elaborate manner by appreciating evidence of the parties

No ground existed for re-evaluation of evidence produced by the parties

No illegality, infirmity or material irregularity had been pointed out in the impugned judgments passed by the courts below

Constitutional petition was dismissed in circumstances.

Employer company being dissatisfied with the judgment of Labour Court filed appeal before Labour Appellate Tribunal, the same was accepted

Labour Appellate Tribunal had found that the petitioner being "Territory Manager" did not fall within the definition of "workman", therefore could not invoke the jurisdiction of Labour Court

Validity

Petitioner was appointed as "Territory Manager" in the managerial staff

Main job of the petitioner was to promote the sales of pharmaceutical products of employer company

Duty of the petitioner was to convince doctors to prescribe medicines of the company

Petitioner had no nexus with direct sales of pharmaceutical products of the company

Petitioner had the duty of ethical promotion of the sales, the same did not fall within the ambit of skilled or unskilled, and manual or clerical, therefore petitioner did not belong to the category of "workman"

Judgment of Labour Appellate Tribunal was upheld

Constitutional petition was dismissed.

During pendency of grievance petition filed by the employees, counsel for bank moved application under O.VII, R.11, C.P.C. for rejection of grievance petition, contending that employees not being workmen, their grievance petition be dismissed for want of jurisdiction

Acid test for determining the status of a workman, was the nature of his duties, but where there were conflicting claims of the parties, then such issue could be determined by recording of evidence and not otherwise

In the present case, neither copies of the application filed under O.VII, R.11, C.P.C. nor their replies as well as the copies of the grievance petitions and their replies had been filed for proper appreciation of the cases

Application for rejection of grievance petition, was rightly dismissed by the Labour Court on the grounds that factual controversy could not be resolved without recording evidence and that revision petitions were not properly documented.

Bank employees of Grade-I, Grade-II or Grade-III, fell within the definition of "workmen".

Posting of such employee at godown of company for drawing samples, checking weights, sealing samples and transmitting same to company for onward action

Validity

Nature of such duties discharged by employee was that of a Inspector involving application of mind and making of decisions on subject based on rational approach

Such duties were not merely clerical in nature

Such employee would not fall within definition of a workman.

Appellants who were officers of Grade-III and II respectively in Bank, claimed that nature of their duties was manual and clerical

Applicants filed application for allowing them to participate in election proceedings of employees and workers of union

Registrar/Authorized Officer rejected application summarily and removed the names of the appellants from the list of voters

Appellants being aggrieved of the order of Registrar, filed application before Chairman/RITU of the Commission

Chairman of the Commission declined to stay the election proceedings

Chairman of Commission vide impugned order in order to resolve the issue issued notice to the employer Bank to provide a list of duties assigned to each of the appellant so that it could be determined whether they were `workmen' or not

Chairman adjourned the matter and request of stay-of election proceeding was declined

On adjourned date of hearing application of the appellants for a declaration of their status as workmen and their entitlement to participate in the election was turned down in totality

For the legal aspect, record to the file of the appeal had gone infructuous

Further proceedings in hearing of appeal or an adjournment would be nothing but a futile exercise and wastage of public time.

Person might be designated as an officer but the nature of his duties could be manual or clerical which would fall within the definition of "worker/workman".

Worker who had been dismissed, discharged, retrenched, terminated or otherwise removed from employment, no longer would fall in the definition of "workman"

If such dismissal etc. had taken place in consequence of industrial dispute or had led to an industrial dispute, then such person was included in the definition of "workman", but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relations Act, 2008

Such dismissed etc. workman would come to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue of any provision contained in Industrial Relations Act, 2008

Such person, in circumstances was not a workman and was not entitled to participate or vote in any referendum or balloting under S.24 of Industrial Relations Act, 2008

Said workman could not participate in any election of the union except when he fell within the 25% of outsiders who were permitted to be office-bearers of the union

Such outsiders were not permitted to be member of the union

Pendency of grievance petition in a Labour Court or proceedings before N.I.R.C. would not affect status of such a person

However, if interim order had been passed by a court of law and the employer had acquiesced in the order, the employer could not challenge participation by such a workman in such proceedings

Persons who had been removed from employment and whose grievance petitions were pending in the Labour Court or those who had been removed from employment and had not filed grievance petition, both were equally not `workman' as defined in Industrial Relations Act, 2008 and were not entitled to be included in the list of voters to be prepared by the Registrar Trade Unions under S.24(5) of Act, 2005.

Employee had deposed before the Labour Court about the nature of his duties of a workman and that part of the evidence of the employee was not cross-examined by the employer-Effect-When such ground reality was before a Court of law and if put in juxtaposition to law laid down by the Supreme Court in respect of determination of the status of aggrieved person on account of nature of his duties, no other conclusion could be drawn except that the employee was justified in invoking the jurisdiction of Labour Court and the Labour Court erred in law while dismissing his petition

Impugned judgment of the Labour Court was set aside by High Court and case was remanded to the Labour Court with a direction to decide the same on merits within specified period.

Test for determining whether an employee is a workman or an officer, is not the designation or the post held by such an employee but the nature of work which is being performed by him or the salary/emoluments

Employee may be holding a post, which from its designation appears to be a supervisory or managerial post but if the employee mainly performs manual or clerical work then such an employee falls within the definition of a workman

If however, an employee does not hold a post, the designation of which suggests it to be a supervisory or managerial post but the incumbent thereof mainly performs supervisory and managerial functions then such incumbent is not a workman.

Employee who was employed as Deputy Manager Administration had claimed to be a "workman" contending that his status was to be determined in view of duties performed by him and not in view of his designation

Employee in his evidence had admitted that he was appointed as Security Officer and then was converted as Junior Commercial Officer and finally he was promoted as Deputy Manager (Administration)

Employee during his cross-examination had not deposed that he performed such functions by virtue of which he fell within definition of workman"

Employer had established through documentary evidence on record that employee was performing duties of managerial and supervisory nature and was acting on behalf of employer to deal with labour union which he himself neither was member nor office-bearer

Employee, in circumstances, was not covered by definition of workman or worker.

Petitioner/employee though was promoted in category of Officer Grade-III and then Grade-II, but he had no managerial or administrative function to perform as officer and was only symbolically known as officer of the Bank without having any powers of officer and was performing clerical duties

Employee, in circumstances, was a "workman"

Real test whether a person was a workman or not did not depend upon designation or salary, but depended only upon nature of duties

Officers Grades III -and II serving in Banks even otherwise were workmen.

Actual nature of work should be a deciding factor to determine the status of an employee regardless of the designation given by the employer to him

Designation, some time, decorative, would not enhance the status of an employee.

Employee was appointed in employer company as Deputy Manager drawing salary of Rs.9,450 at the time of termination of his service

Employee used to act as Site Incharge and verify running bills of contractors working at site for employer company and he also placed purchase orders in a capacity of Site Incharge

Employee also used in sign payment sheets of casual workers

Function of employee being a supervisory nature, he was not a "workman" and grievance petition filed by him under S.25-A of Industrial Relations Ordinance, 1969 was not maintainable

Number of workmen employed in employer company during preceding year being less than twenty, provision of West Pakistan Industrial arid Commercial Employment (Standing Orders) Ordinance, 1968 were also not applicable to the case of employee

Grievance petition was rightly dismissed by Labour Court.

Petitioner, a Divisional Accounts Officer working in Development Authority in Grade-14, had prayed in his petition under S.25-A of Industrial Relations Ordinance, 1969 for allowing him Grade-17 and 33 % of Selection Grade 18 with back benefits

-Petition was allowed by Labour Court against which appeal was filed by the Authority

Petitioner being in Grade-14 would not fall within category of a Workman, but would come within category of an officer and his remedy first lay with Director-General of the Authority, then with Secretary, Housing and Town Planning and in case petitioner was again aggrieved by decision of Secretary, he was to approach Service Tribunal

Even otherwise Development Authority against such petition under S.25-A, of Industrial Relations Ordinance, 1969, was filed having been constituted and controlled by Government, its employees would be servants, and not workmen

Petition under S.25-A, Industrial Relations Ordinance, 1969 and appeal filed against judgment of Labour Court on said petition, both were not maintainable in circumstances.

Labour, Court dismissed grievance petition filed by employee against termination of his service holding him Supervisor/Incharge of Department concerned simply on basis of termination letter in which employee was shown as Supervisor/Incharge of Department by employer

Employer had not produced any other documentary evidence in proof of his claim

Appointment letter and roaster of duties which were basic documents were not produced by employer

Order of Labour Court whereby grievance petition was dismissed holding employee as Supervisor/Incharge, was sketchy and not inspiring confidence

Labour Appellate Tribunal setting aside order of Labour Court, remanded matter to be decided afresh by asking employer to produce said two documents.

Employees also had no power to grant leave to any worker and were doing their job by themselves without any assistance of anyone else under supervision of a supervisor

Job of Computer Operator was coupled with manual and skilled work and it was pith and substance of employees' job

Employees, in circumstances, were 'workmen' within meaning of S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Employees being Shift Officers looked after managerial and supervisory works of respective shift not concerning any manual or clerical work

In case employees were required to do some manual or clerical work, that was merely ancillary, incidental and auxiliary in nature and hardly took half an hour in eight hours working which could not form pith and substance of their job

Employees, in circumstances, were not workmen and their grievance petition filed under S. 25-A of Industrial Relations Ordinance, 1969 was liable to be dismissed being not maintainable.

Termination of employees from service under Regln. No.A(ii)(c)(2) of State Life Employees (Service) Regulation, 1973 did not constitute industrial dispute as they were not .workmen within meaning of S.2(xxviii) of Industrial Relations Ordinance, 1969.

Real test for determining whether a person fell within ambit of definition of "workman" would depend on nature of duties performed by the employee at the time of termination.

Petitioner who filed grievance petition for re-instatement of his services under S. 25-A of Industrial Relations Ordinance, 1969, though initially was appointed as a 'welder' but later on he was promoted as executive in management cadre and he was assigned duties as executive and not as manual worker

In extra time sheets his duties were mentioned as 'Supervisor' and documents brought on record showed that petitioner used to assign work to, welder and distribute them in various shifts

Petitioner also used to recommend leave applications of the workers under him and also recommended payment of temporary advances to workmen

Petitioner who was not doing manual work as welder, but was Supervisor and an executive, was not a workman as defined under S. 2(xxviii) of Industrial Relations Ordinance, 1969 and leis grievance petition filed before Labour Court, thus, was not maintainable.

Labour Court dismissed application for grant of stay of termination pending grievance application on the ground that since respondent establishment was charitable hospital, provision of Industrial Relations Ordinance did not apply to any person employed by such establishment maintained for the treatment and care of sick, infirm, destitute or mentally unfit persons

Labour Court also found that Chowkidar of hospital was outside the purview of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as hospital was not an industrial or commercial establishment within meaning of Standing Orders Ordinance

Where even maintainability of main application was in issue and no prima facie case had been established, grayer for stay of re-instatement was rightly rejected, apart from the question of maintainability of stay application before Trial Court

Order of Trial Court was maintained in circumstances.

Labour Appellate Tribunal in earlier round of litigation, while upholding order of reinstatement of workman, had given option to establishment to hold inquiry to find out if workman was entitled to full back benefits or half of them as awarded by Labour Court

Question of reinstatement being closed question as a result of judgment of Labour Appellate Tribunal, such question could not be re-opened in domestic inquiry

Workman having been re-instated under order of Labour Appellate Tribunal, there was no ground for his dismissal for second time on the same allegations

If result of fresh inquiry was against workman he should forego payment of additional 50 per cent back benefits but question of re-instatement could not be opened by holding fresh inquiry.

Mere assertion of petitioner to the effect that his job had previously been clerical, as cashier, could not be given importance, especially when he himself had been describing his colleagues as Officer and not as a workman

Being an Officer, petitioner must not be held entitled to the aid of Labour Laws and to any relief of Labour Court, though he could explore other channels permissible under Banking Rules and Regulations for achieving the requisite relief.

Duties and not the designation or the emoluments of official would determine his status as to whether he was a workman or not.

Low Grade Bank Manager or Officer with no powers of hire and fire of making appointments and even granting leaves to subordinates was considered to be a "workman" and not an officer working in managerial capacity.

Employee, if had a- genuine grievance, he could approach proper forum in the matter and could not invoke the aid of Labour Laws by having recourse to a Labour Court.

Employee who had challenged his dismissal from service by filing grievance petition before Labour Court, though was designated as a "security officer", but his job was to check the work of Chowkidars who were 18 in number and he was to do so by walking on foot

Nature of job of employee was manual and he could not be taken as working in any managerial or supervisory capacity

Even contents of show-cause/charge-sheet issued to employee by employer had furnished an indication that action against employee was proposed to be initiated under S.Os. 12 & 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and those provisions were meant for workers only and not for other categories of staff

Onus to establish that -employee was not worker was thus, shifted to employer, but employer had failed to discharge the same

Even otherwise a security guard and a member of Watch and Ward could legitimately maintain a grievance petition under S.25-A of Industrial Relations Ordinance, 1969

Grievance petition filed by employee, thus, was maintainable.

Labour Court on basis of record found that although services of workman were terminated because of his absence from duty without leave, yet he was neither served with charge nor made to face enquiry, and thus, was condemned unheard

Such action of respondents was against all principles of natural justice

Even if workman's conduct was open to exception and his work was unsatisfactory Labour Laws dictated that all legal formalities should have been gone through and accused workman should have been afforded opportunity of leaving before his dismissal from service

Labour Court, however, had refused back benefits

Workman not satisfied with his reinstatement claimed back benefits in appeal

Workman had not been able to establish his entitlement to back benefits to the satisfaction of Appellate Court

Bad conduct and poor performance of workman had attributed to the action initiated against him and it was magnanimous approach by Labour Court that kind treatment was meted out to him and he was re-instated in service

Workman had no entitlement to be awarded back benefits, therefore, his such claim was rejected.

Termination of workman could not be deemed to be violative of S.O. 12, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Labour Appellate Tribunal in view of admitted facts, had also found that workman had also attained age of superannuation on specified date though his services were terminated about one and half months after the date of his superannuation, thus, workman could not be said to have right to stay in Department considering the fact that he would get all benefits of his retirement as well as legal dues on his termination

Termination order having not been shown to be either mala fide or without lawful authority, no case for interference in Constitutional jurisdiction of High Court was made out.

Leave to appeal was granted to consider questions as to whether the employee was mainly employed to do supervisory work which did not ordinarily require manual or clerical work and that in such a background the test for determining the question whether he was a workman was the nature of the duties entrusted to him constituting the essential nature of his work and not the work which was ancillary or incidental to his employment; and whether the High Court was not competent to substitute its own finding for that of statutory forum on a question of fact in the exercise of its Constitutional jurisdiction.

Petitioner who was originally a workman, after her retirement could not be regarded as "workman".

Evidence adduced by employee had shown that essential duties of employee were not supervisory and managerial in nature as averred by employer Bank

Employee in his evidence had stated that he prepared vouchers, bills, made entries in ledger and countersigned on other documents, prepared Bank Statements and also other miscellaneous clerical work

Employee was not cross-examined by employer Bank on that point

Employee also admittedly was not holder of any power of attorney from Bank which had been granted to Officers of Grade-11 and Grade-III

No case had been made out to disturb finding of Labour Appellate Tribunal that employee's duties being primarily of clerical nature, he was a "workman" and his application under S.25-A of Ordinance, 1969 was maintainable.

Employee thus was conclusively established to be a "workman".

Expression "persons employed either directly or through a contractor" occurring in definition-Intention of legislature is to include amongst workmen or employees not only persons directly employed by owner or employer but also those employed by them through such persons who undertake contracts to supply labour

Word "contractor", meaning of

Appellant employed by person who had contracted to run a petrol pump of respondent-Company and not merely to supply labour to be engaged by Company and such contractor having power of hiring and firing employees, assigning work to be taken from them and manner of serving customers at petrol pump

Appellant, held, was not the employee of the Company but that of Company's contractors-[Words and phrases].

Bank employees of Gr-I, Gr-II & Gr-III fall within definition of "Workman" as given in Industrial Relations Ordinance, 1969 and at- such trade union of Bank employees was entitled to extend its membership to such officers.

Employee though performing supervisory duties but insured under Social Security Scheme, held, would also be deemed to be a 'workman'.

S. 2 (i)-"Workman"-Cane Inspector in Sugar Mills-Supervising four Fieldmen and himself performing no clerical or manual work-Not a workman-Charge-sheeted and subjected to enquiry under procedure of Ordinance-Plea that accordingly he was deemed to. be a workman-Plea repelled-Held : If any law is inadvertenly made applicable the other side cannot claim benefit under that law.

Ss. 2 (xxviii) & 25-A-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)"Workman"-Maintainability of petition against termination of service-Bank employee Officer Grade-III-Nature of duties mainly as clerical-No Power of Attorney given-Duties also involving some mathematical calculations of converting current exchange rate of currency into foreign currency and vice versa-Contention that work was of "responsible" nature and failure to do same correctly involved Bank into huge loss-Every duty whether clerical, manual, skilled is a responsible duty and failure to perform same may involve loss for employer and performance of such duty, in circumstances, held, would not take away from the nature of duties being purely of clerical nature-No other person working under his supervision and no responsibility of management and control involved-Such employee, in circumstances, held, a workman-