' RAJA ABDULLAH KHAN (MEMBER).--- This appeal is directed against the order, dated 9-5-2007 of the then learned Chairman/RITU whereby he allowed the Application No,74(21) of 2005 of Manager Personnel, Pakistan National Shipping Corporation against the Pakistan National Shipping Corporation Workman Union whereby he directed that the workmen/office-bearers of the union after their promotion to the post of Junior Executives would cease to be workmen and cannot remain members/office-bearers of the union.
2. The facts in brief giving rise to this appeal are that Manager Personnel, Pakistan National Shipping Corporation, Karachi filed Complaint No,7A(21) of 2006 on 9-8-2006 against the PNSC Workers Union for inclusion of the names of Junior Executive namely Messrs Syed Nawaz Ali Shah, Alam Zaib and Saleh Khan Brohi, Chairman, General Secretary and Office Secretary respectively in the list of their office-bearers in violation of the Constitution of the said union with a prayer that a direction be issued to the union to exclude the names of aforesaid junior executives being not workman.
3. It is pertinent to point out that before the then learned Chairman/RITU started hearing the application on 24-8-2006, a fax message was received by him from Saleh Khan Brohi, Office Secretary that he had resigned from the membership/office-bearer ship of the union because of his promotion. However, Syed Nawaz Ali Shah and Alam Zaib contested the, complaint and stated that their case was of up-gradation of their post and not of promotion. They contended that the nature of their job has not been changed as such they remained workers after their up-gradation.
As this question whether after up-gradation of the posts and their promotion Messrs Syed Nawaz Ali Shah and Alam Zaib continued to be workers or not required evidence, as such the matter was referred by the then learned Chairman/RITU to the learned Member, Karachi Mr. Ghulam Nauman Shaikh for recording the evidence of .The parties which he did. The complainant examined Mr. S.M.
Shafi, Personnel Manager in support of the complaint while the respondents union examined Messrs Syed Nawaz Ali Shah and Mr. Alam Zaib the affected persons in support of their case and these witnesses of the parties were cross-examined. Parties produced documentary evidence as well in support of their respective contentions.
4. After hearing the learned Advocates for the parties and considering the evidence on record, the then learned Chairman/RITU accepted the application of the Management of Pakistan National Shipping Corporation and directed the union to exclude the names of Messrs Syed Nawaz Ali Shah and Mr. Alam Zaib from the list of office-bearers of the union because after their promotion to the post of junior executives they ceased to be the workmen and cannot remain member/office- bearers of the said union vide the impugned order, dated 9-5-2007, hence this appeal.
5. We have heard Malik Muhammad Rafique, learned Advocate for the. Appellants and Ch. Abdur Rashid, Advocate for the respondent management and perused the record carefully.
6. Malik Muhammad Rafique, learned Advocate for the appellants has contended that the impugned order is not sustainable and is liable to be set aside on the ground that the appellants Syed Nawaz Ali Shah and Mr. Alam Zaib continue to be the workmen because they are performing the same duties as they were performing before their up-gradation and promotion as Junior Executive and hence their names cannot be excluded from the list of office-bearers of the union. In support of his contention he has relied upon the authorities reported in 2007 PLC 287, 2007. PLC p.75 (Karachi High Court) and 2007 PLC 83 (Karachi High Court). On the other hand Chaudhry Abdur Rashid, Advocate for the respondent-Management has supported the impugned order on the ground that after up-gradation of the posts, the appellants ceased to be the workmen as they were promoted from grade-7 to Grade-9 as Junior Executives and fell within the definition of Officers as rightly held by the then learned Chairman/RITU for cogent reasons in the impugned order. In support of this contention Chaudhry Abdur Rashid, Advocate for the respondent- Management has relied upon the following authorities:--
(i) 2001 PLC (C.S.) 691, (ii) 1994 PLC (C.S.) 211, (iii) 2001 PLC (Lab.) 319, (iv) 1993 SCM R 511, (v) PLD 1988 SC 1988, (vi) 1977 PLC 246 (Karachi High Court), (vii) 2002 PLC 1 (Karachi High Court), (viii) 1993 SCM R 1370, (ix) 2007. PLC 41 and (x) PLD 1992 SC 118.
7. We have carefully considered the contentions of the learned Advocates for the parties and gone through the authorities relied upon by them. We are of the considered view that the contentions of the Advocate for the appellants are not tenable and the authorities relied upon by him are distinguishable from the facts of this case while the contentions of Chaudhry Abdur Rashid, Advocate for the respondent are tenable and the authorities relied upon by him fully support his view point. It is held by superior Courts time and again that only the nature of work actually done by an employee would determine status and not the designation. It is an admitted position on record that presently the two officials viz. Syed Nawaz Ali Shah and Mr. Alam Zaib are doing the following duties:-- Nawaz Ali Shah, Junior Executive
(A) To maintain Rent Register of Muhammadi House, collection of rent, collection of betterment tax, water charges and Income Tax Challan.
(B) To maintain list of tenants who are not paying the rent and issuing letters to them.
(C) To maintain the record of those tenants who are not enhancing the rent and issuing letters to them for recovery of outstanding rent etc.
(D) Filing of the papers in concerned files of tenants of Muhammadi House.
(E) Making income and expenditure statements of Muhammadi House.
(F) To regularly coordinate with tenants at Muhammadi House and persuade them for early clearance of their outstanding dues.
(G) And any other assignment given by Management Manager Estate.
Job description of Junior Executive (Mr. Alam Zaib)
8. Mr. Alam Zaib is a Junior Executive and working in Workshop Finance Department. His job responsibilities are to look after employee related function that involves financial matters. These includes:-- ' Verification of monthly salary.
' 'Preparation of final settlement of outgoing employees. Verification of tax on salary and final settlement.
' Preparation and validation and wages to daily employees.
' Authorized signatory for personal loan facility of workshop employees.
' Any other job of supervisory nature assigned to him by the superiors.
9. The perusal of the above duties which are now being performed by these officials after their promotion from Grade-VII (Senior Assistant) to Grade-IX (Junior Executive) clearly show that these officials are not doing clerical or manual work but they are performing these duties in Supervisory/Managerial capacity. They have to apply their independent mind and discretion in the discharge of these duties. These appellants are even authorized to grant leave and also loan facility to workshop employees as is clear from the evidence of Mr. S.M. Shafi which fact is not denied by these officials in their evidence. There is nothing on the record to show that these officials were doing these duties prior to their promotion because it was for them to prove that there was no change in their duties after their up-gradation and promotion which they have miserably failed to do. On the contrary the evidence on record clearly establishes as discussed by the learned Chairman/RITU in the impugned order that these officials are doing Supervisor/Managerial work after their promotion from Group 7 to Group 9. There has been hefty increase in their salary after promotion. In Group-V II they were in pay scale of Rs,4484-330-8844 while on promotion in Group IX (Junior Executive) they have been placed in pay scale of 7700-616- 20020. Their terms and conditions have also been changed after promotion as they are empowered to grant leave to their subordinates and sanction loan to workshop employees as discussed above. They are not contributing to the workers funds as member of workers union but they are contributing towards the Officers Union fund. It appears from record that the PNSC Workman Union challenged the order of the Registrar Trade Unions before the Honourable High Court Sindh in a Constitution Petition No,S-327 of 2005 regarding the exclusion of the names of these Junior Executives from the voters list and this writ petition was dismissed. The evidence on record clearly establishes that the petitioners are not workmen but they are doing the job of Supervisory/Managerial nature and hence the learned RITU/Chairman while giving cogent reasons has rightly allowed the application of the management for the exclusion of these officers from the list of office-bearers of the union and no exception can, be taken to the impugned order which is well-discussed and well-reasoned and the same is maintained.
10. For the above reasons the appeal has no merit at all and is accordingly dismissed.