' MUHAMMAD NAWAZ ABBASI, J.--- This appeal with the leave of the Court is directed against the judgment dated 10-10-2003 passed by Lahore High Court, Rawalpindi Bench, in a writ petition arising out of a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969.
2. The facts of the case, in small compass, leading to the filing of this petition are that Syed Ishrat Ali Zaidi, respondent herein, was employed as Superintendent (E&M) in the Fauji Foundation, Rawalpindi and having been proceeded against on two separate charges (a) absence from duty and (b) misconduct for the act of cheating, fraud, forgery, misappropriation and breach of trust was removed from service on both the charges. The respondent filed two separate grievance petitions (Petitions Nos.301 of 1992 and 302 of 1992) under section 25-A of industrial Relations Ordinance, 1969, hereinafter called IRO, 1969, before the Punjab Labour Court for his reinstatement in service and Labour Court having come to the conclusion that respondent was not a workman to maintain a petition under section 25-A of IRO, 1969 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter called Standing Orders Ordinance, 1968 dismissed both the petitions vide judgments dated 24-1-1995. Being aggrieved, the respondent preferred two appeals before Punjab Labour Appellate Tribunal and the petitioner also filed two cross-appeals with the assertion that respondent was not a 'workman' to invoke the jurisdiction of Labour Court in the matter. The Labour Appellate Tribunal while reversing the judgment of Labour Court, disposed of all the four appeals together vide judgment, dated 24-6- 2000 and petitioner, being dissatisfied with the judgment of Tribunal, preferred a constitutional petition before the Lahore High Court, Rawalpindi Bench, which was dismissed vide impugned judgment, hence the instant petition.
3. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, learned counsel for the petitioner has contended that the respondent was a contract employee and notwithstanding the fact that his contract of service was not for a fixed period yet as per terms of his appointment, his contract could be terminated at any time on one month notice or pay in lieu thereof. The learned counsel argued that the assignment of Superintendent (E&M) in the organization, in view of its characteristics is managerial in nature and its holder is not a 'workman' to maintain the grievance petition under section 25-A, IRO, 1969, therefore, the petition filed by the respondent was rightly dismissed by the Labour Court being not maintainable. Learned counsel placing reliance on the case-law, has submitted that Fauji Foundation is a charitable organization which is registered under Endowments Act, 1890 and is not an establishment within the meanings of expression 'establishment' under IRO, 1969 or Standing Order Ordinance, 1968 and thus the employees of the organization are governed by the law of master and servant whereas the employees falling in the category of 'workman' in the establishment of industrial units set up by Fauji Foundation are subject to the Labour Laws. In nutshell, learned counsel argued that neither the organization of Fauji Foundation is covered by the definition of establishment under IRO, 1969 or Standing Orders Ordinance, 1968 nor the respondent by nature of his duty, pay and designation falls within the definition of `workman' to invoke the jurisdiction of Labour Court for redressal of his grievance.
4. Learned counsel for the respondent on the other hand, taking us to the pleading of the parties and the evidence produced by them in support of their respective stance, contended that the concurrent finding of Appellate Tribunal and the High Court on the precise question of fact regarding the status of respondent as a workman, may not call for interference of this Court.
Learned counsel submitted that notwithstanding the nature of appointment of a workman in an industrial establishment either on contract or otherwise, he must be governed by Labour Laws and in the present case, the petitioner having recognized the respondent as workman proceeded against him for the charge of misconduct under section 15(3) of the West Pakistan (Standing Orders) Ordinance, 1968, therefore, the petitioner could not subsequently take a different stand: The learned counsel placing reliance on Abdul Ghafoor v. Karachi Shipyard and Engineering Works Ltd.
And others PLC 1987 Labour 697, Abdul Razzaq v. Ihsan Sons Ltd. 1992 SCM R 505, Rehmat Ali v.
Security Papers Ltd. PLD 1982 Kar. 912, Pakistan Arab Refinery Ltd. v. Muhammad Rashid 1999 SCM R 373 and Mustehkum Cement Limited v. Abdul Rashid 1998 SCM R 644, submitted that the organization of Fauji Foundation for all intents and purposes is an of Superintendent (E&M) is squarely covered by the definition of `establishment' in terms of section 2(ix), IRO, 1969 and the assignment `workman' under section 2(i) Standing Orders Ordinance, 1968 read with section 2(xxviii) of IRO, 1969.
5. The Fauji Foundation is a charitable organization registered under Endowments Act, 1890 and respondent as per terms and conditions of his service contained in his appointment letter, dated 28-7-1981, had A to be governed by the Fauji Foundation Disciplinary and Efficiency Rules, therefore, the first question for determination would be whether the organization is covered by the definition 'establishment' of IRO, 1969 and Standing Orders Ordinance, 1968. Section 2(ix) of IRO, 1969 provides as under:-- "2(ix) "Establishment" means an office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry and except in section 22EE, include a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments;"
6. The 'commercial' and 'industrial establishment' have been defined under section 2(b) and (t) of Standing Orders Ordinance, 1968 in the following manner:- "2(b) "Commercial Establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employees workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may by notification in the official Gazette, declare to be 'a commercial establishment for the purposes of this Ordinance."
(f) "Industrial establishment" means---
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or
(ii) a factory as defined in clause (f) of section 2 of the Factories Act, 1934 (XXV of 1934); or
(iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on; or
(v) the establishment of person who, directly or indirectly, employs workmen in connection with any construction industry; Explanation.--- "Contractor" includes a sub-contractor, headman or agent."
' In the light of the above definition of establishment, it would be essential to determine the legal status of Fauji Foundation, a charitable organization and careful perusal of the record would bring us to the conclusion that the proposition was not properly examined rather the 'organization' was mixed with the 'establishment' of its industrial units.
7. The next question for determination relates to the status of the respondent as to whether he falls within the category of 'workman' or not. The respondent was employed as Superintendent (E&M) in Fauji Foundation and his duty was to check the work of contractors and prepare the measurement book, therefore, the question for consideration would be whether he predominantly was performing the manual work of preparing the measurement book or it was an ancillary duty to his main work of supervision of the contractors and consequently, the assignment of Superintendent (E&M) by designation and power vested in it appears to be supervisory in nature.
8. The expression "Superintendent" in plain words means, a person who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters whereas the 'worker' and 'workman', have been defined in section 2(f), IRO, 1969 and section 2(xxviii) of Standing Orders Ordinance, 1968 as under:-- "2(i) "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."
"2(xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor 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-Fauji Foundation or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-Fauji Foundation, 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 menses or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
9. This Court in Hotel International v. Bashir A. Malik PLD 1986 SC 103, has defined the expression 'workman' as under:-- "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 careful examination of the proposition in the light of law on the subject, the expression 'Superintendent' in general is used in supervisory meanings and a person in such capacity by doing some manual work may not acquire the status of 'workman' in terms of IRO, 1969 and Standing Orders Ordinance, 1968. The mere fact that a person in supervisory capacity, was also doing some manual work is not sufficient to hold that he is a workman and similarly mere supervisory, designation may not bring a person out of the category of `workman'.
11. In the present case, we find that the Tribunal without taking into consideration the definition of 'workman' and 'establishment' proceeded to hold that since respondent was discharging his duty under the supervision of Assistant Engineer, Deputy Engineer and Chief Engineer, therefore, he was a workman. The question as to whether a person is `workman' or not is certainly a mixed question of law and facts which is to be decided in the light of facts of each case and in the present case, we find that the main consideration for holding the respondent as `workman' was the manual work of preparing the measurement book in addition to other duties. This is to be noticed that in such public and private organizations, the managerial staff usually do the manual work and probably all persons in supervisory capacity in one way or the other, do manual work in discharge of their duty, therefore, it may not be the true test to determine the status of a person who undertakes any sort of manual work or performs duty in supervisory capacity involving some manual work, as a workman. The Labour Court having considered the proposition in the light of evidence, concluded as under:-- "The test for determining the question whether an employee is a workman within the meaning of various Labour Laws in the nature of work done by the employee. This would be the essential and fundamental consideration for determining the question and not his designation, which is not conclusive. A man who is employed mainly to do managerial or supervisory duty would not fall within the definition of worker. The respondent has produced the charter of duties of petitioner as Exh.R.12. This indicates that petitioner was not doing any manual or clerical work at the relevant time. The evidence on record shows that the essential work the petitioner was doing was to supervise the work of contractor and see that he was carrying the work in accordance with drawings etc. Given to him and to supervise the execution of minor E&M works as per specifications etc. Moreover, petitioner admits that he was getting Rs,4,300 per month. Keeping in view his duties it becomes crystal clear that work of petitioner was of supervisory nature and not involving personal exertion. Iqbal Saleem Akhtar, R.W.2 also fully supported version of respondent. On the other hand, petitioner was failed to produce any work while evidence in support of his case, so from the material brought on record it is apparently clear that petitioner's service was of supervisory nature, therefore, he cannot be considered a worker/workman under IRQ or West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
12. The Labour Appellate Tribunal in appeal preferred by the respondent, reversed the judgment of the Labour Court with the observation that the respondent was not enjoying the power of taking independent decision and was also engaged in doing some manual work. The relevant portion of judgment is reproduced hereunder:-- "The mere fact that Mr. Zaidi was designated as Superintendent and was drawing considerable salary in the amount of Rs,4,300 per month however, would not be enough and the management will have to establish that the duties in which this official was performing were managerial or supervisory and he fell outside the ambit of the term 'workman'."
13. The High Court in writ petition filed by the petitioner, affirmed the judgment of the Labour Appellate Tribunal without proper determination of the basic question whether Fauji Foundation, a charitable organization, is covered by the definition of 'establishment' and respondent holding the position of Superintendent (E&M) would fall within the definition of 'workman' for the purpose of Labour Laws to invoke the jurisdiction of Labour Court and maintain the grievance petition under section 25-A of IRO, 1969. The High Court has held as under:-- "Now so far as the status of respondent No,3 is concerned, the finding of fact recorded by the learned Labour Appellate Tribunal is that although respondent No,3 was designated as Superintendent but he was performing duties of manual, clerical, subordinate and secondary nature. Even if he had a clerk and a peon assisting him in the performance of his duties that did not lend administrative or supervisory role to the assignment he was holding. He was subordinate to Assistant Engineer, Project Engineer and then Chief Engineer. It has further been observed that job of respondent No,3 was not managerial or supervisory. Learned counsel for the petitioner had not been able to convince me to hold otherwise by interfering with the said finding of fact. Now according to the Scheme of Administration of the petitioner (Annexure P.11), as per para.2(1)(d) the object thereof is to generally administer the Foundation for the purposes and in the manner indicated in the Annexure proceeds of the Fauji Foundation are to be invested in industrial undertakings or otherwise at the discretion of the Committee of Administration, and any income therefrom may be utilized for the collective benefit of the beneficiaries of the Foundation."
14. We having heard the learned counsel for the parties on the controversial questions of law and facts raised by the learned counsel for both sides in the light of record, have found that the Labour Appellate Tribunal as well as the High Court, have not properly attended the questions firstly the true legal character of Fauji Foundation whether an 'establishment' in terms of IRO, 1969 and Standing Orders Ordinance, 1968 or not and secondly whether respondent, employed in supervisory capacity in a charitable organization by reason of doing some manual work, would fall within the definition of 'workman'. In view thereof, we without dilating on the factual controversy, deem it proper to send this case back to the Labour Appellate Tribunal for determination of the above question as well as the question of jurisdiction of Labour Court. Consequently, this appeal is allowed and the judgment of the High Court as well as Labour Appellate Court is set aside. The case is remanded to the Appellate Tribunal for decision of the labour appeals afresh in accordance with law. There will be no order as to costs.