' ASAD MUNIR, MEMBER --- The Respondent Company, Educational Services (Private) Limited, is the parent company of the Beacon House School System which runs a chain of schools throughout the country. On 19.10 1996, the Appellant, Syeda Sarah Batool Garden, pinned as a Teacher in the Beacon House School System in Multan. The Appellant remained employed as a Teacher till 01.01.2011 when she was selected and appointed as School Evaluation Associate at a gross salary of Rs. 110 000/- per month vide letter dated 13.12.2010 (Ex.R-1) whereby she was also transferred to the School Evaluation Department, Lahore. A few months later, the Respondent Company made arrangements for the Appellant to attend a course called School Evaluation Training and Experience which was being held from 01.08.2011 to 12.08.2011 by the Education Review Office in Wellington, New Zealand. Before proceeding 'o New Zealand, the Appellant signed a service bond dated 20.07.2011 (Exp.R-3) whereby she nave an undertaking to remain in the employment of the Respondent Company for a minimum period of two years front 20.07.2011 )therwise if she left the service of the pespondent Company or was dismissed from within one ar from 20.07.2011, she would be liable to reimburse Rs. 450,000/-, being the full cost of the course in New Zealand and that she would reimburse 50 percent of the said cost in case she left service later than one year but prior to the expiry of two years. Thereafter, the Appellant proceeded to New Zealand and attended the course which concluded on 12.08.2011. Soon after her return from New Zealand, the Appellant vide her e-mail dated 16.8.2011 (Ex.R-4) informed Simon John Testa, Director, School Evaluation Unit, that she would soon submit her resignation as she was seriously considering one of the two good fob offers she had received after her return from New Zealand. On the same day, the Appellant delivered to Rabia Tariq, Coordinator, School Evaluation Unit, her resignation letter dated 16.08.2011, addressed to the Director, School Evaluation Unit, wherein the Appellant stated that her letter be considered as her notice prior to resignation and that she would continue working till 06.09.2011. However, the Appellant stopped working with the Respondent Company on the understanding that 30.08.2011 was agreed as her last working day soon whereafter she joined the City Scho DI as General Manager (Inspection). Thereafter, the Resprndent Company issued to the Appellant show-cause notice dated 22.09.2011 whereby she was informed that her resignation letter dated 16.08.2011 was rejected and called upon to show cause as to why her services should not be terminated for misconduct as she had acted fraudulently and dishonestly by accepting a job in the City School which she had been negotiating prior to her departure to New Zealand in violation of the service bond dated 20.07.2011, executed by her. By her reply dated 29.9.2011, the Appellant denied the allegations with the stand that she had the right to resign on one month's notice and that her resignation had already been accepted and that the show-cause notice was an afterthought as she had ceased to be the Respondent Company's employee with effect from 30.08.2011. In her reply, the Appellant also sought the release of her dues after deduction of Rs.
450,000/-, being the cost incurred on her visit to New Zealand. On 07.10.2011, a notice of inquiry was issued to the Appellant to appear before the inquiry officer. However, on 15.10.2011 the Appellant filed a suit for declaration and permanent injunction against the show cause dated 22.09.2011 and notice of inquiry dated 07.10.2011 to restrain the Respondent Company from holding any inquiry and dismissing the Appellant from service. The learned Civil Judge, Lahore, issued an ad interim injunction dated 18.10.2011 but the Appellant's suit was later dismissed on 23.11.2011 Whereafter she filed an appeal which too was dismissed by the learned Additional District Judge, Lahore vide order dated 07.01.2012. After the ' dismissal of her appeal, the Appellant did not appear before the inquiry officer on 11.01.2012 on which date an ex parte inquiry was held. On the basis of the inquiry report dated 11.01.2012, the Appellant was dismissed from service vide order dated 13.01.201 whereafter the Appellant served a grievance notice dated 31.03.2012 in reply whereto the Respondent Company vide its letter dated 07.04.2012 (Ex.P19) defended its action and also informed the Appellant that she was not a workman in view of her "Job Description and Person Specification" given to her at the time of her appointment and attached as Annexure-A as well as her salary of Rs. 110,178/- as per her last salary slip attached as Annexure-B. Thereafter, the Appellant on 12.05.2012 filed a grievance petition to challenge her dismissal from service vide order dated 13.01.2012 for being illegal with the plea that it could not be passed subsequent to her valid and legal resignation. However, the Appellant's grievance petition has been returned by the Punjab Labour Court No. 1, Lahore, through its order dated 29.8.2013, the relevant part whereof reads as under:- "6. Keeping in view the exanimation-in-chief and cross-examination it is an admitted fact that the petitioner was appointed as Teacher and then she was assigned the duties of executive nature and mental skill, where she departed training to the Teachers schools environments and also got training from abroad, where the respondents spent huge amount and the petitioner was facilitated with laptop and. Blackberry phone. The main duties of the petitioner become of giving training to the Teachers and based on mental skill of sophisticated nature, where :ucrative salary of Rs.
1,10,178/- was also given and to polish her skill and enhance wisdom she was sent abroad. She lacks any clerical and manual labour, therefore. The duties performed by the pthitioner do not fall within the definition of manual and clerical nature and she cannot claim her to be a manual and clerical nature and she cannot claim her to be a workman. While this Court can entertain and adjudicate the matter pertaining to a workman under the labour laws against the employer, therefore, this Court has no jurisdiction."
2. Assailing the legality of learned Labour Courts judgment dated 29t8.2013, it is contended by the learned counsel for the Appellant that the learned Labour Court's conclusion that the Appellant is not a workman is based on a misreading of the evidence and that the finding that the Appellant gave training to the teachers is not supported by any evidence. According to the learned counsel, the evidence on record shows that the duties performed by the Appellant were manual and akin to those performed by a highly-skilled technician like a diamond-cutter and the Appellant did not enjoy or exercise any managerial, administrative or supervisory power nor could she take independent decisions in the discharge of her duties but was subordinate to the Director, School Evaluation Unit. It is further argued by the learned counsel that the Appellant discharged the onus of performing manual duties but nothing in rebuttal was produced by the Respondent Company and that the learned Labour Court did not apply its mind while assessing the status of the Appellant as a workman but was unduly influenced by the designation and salary of the Appellant as well as the gadgets like laptop and blackberry provided to her by the Respondent Company and that the impugned judgment is based on the Respondent Company's solitary witness RW.1's affidavit and Job Description (Ex.P19 Annexure-A) which cannot be relied upon. On the contrary, the learned counsel for the Respondent Company has emphasized that not only has the Appellant failed to discharge the onus of proving that she was a workman engaged in manual or clerical work but also that the evidence on record leaves no doubt that she was engaged in work entailing the use and application of her intellectual faculties.
3. The sole issue that needs to be addressed is whether or not the learned Labour Court has rightly held that the Appellant is not a workman consequent upon its finding that the duties performed by the Appellant as School Evaluation Associate were not manual or clerical in nature. In this regard, reference may first be made to Para 4 of the Appellant's grievance petition wherein she averred that she did not have any subordinate to supervise nor had any power of hire and fire and that being a team member, it was her duty to prepare and maintain field notes for the evidential file and to compile reports and hand them over to the General Manager or the Director and that she was a workman as the duties performed by her were essentially manual. In its written reply, the Respondent Company denied that the Appellant was a workman and referred to the Job Description of a School Evaluation Associate, given to the Appellant at the time her appointment, to assert that her duties included the evaluation of teaching staff which required application of mind based on academic skills and long experience in the fields of education and management.
4. While appearing as PW.1, the Appellant stated in her examination-in-chief that "I was working under Director, School Evaluation Unit, Simon John Testa. I used to visit Schools, hold meetings with Teachers, students, parents and School Heads. I had no subordinate under me. I could not appoint any one. I did not have any power of hire and fire." While denying that she was not a workman, the Appellant deposed in her cross-examination that "It is correct that my salary slip Ex.R.2 pertains to the month of August 2011 and shows gross salary as Rs. 1,10,178/-. My duties included visiting Schools. I visited the Schools and prepare handwritten notes on teaching and learning and schools' environments. I had no administrative or managerial powers and the management was paying my EOBI Contribution. My employer, Educational Services (Pvt.), provided me a Laptop. I used sometimes myself to type notes and the meetings with the Director and General Manager.
Volunteered that as a part of my duties I was given a Laptop to type notes or the documents as were instructed by the Director. I was given blackberry phone to facilitate my work. Volunteered that I as School Evaluation Associate used to receive E-mails, so I was given, blackberry to access the Email whenever required. I was deputed to observe the teaching and learning and school environments. I was given indicators to observe the learning. Those indicators were met."
5. On behalf of the Respondent Company, Shahid Saeed Butt, Director Administration, ESL, appeared as RW.1 and tendered his affidavit in examination-in-chief, in para 16 whereof he denied the Appellant's status as a workman, while in para 2 he deposed as under:- "2. Mrs. Gardezi accepted a job as a School Evaluation Associate with the School Evaluation Unit {Reference Ex.R1} at a salary of Rs. 110,000/-{Reference Ex.R2} and with other benefits such as a Blackberry phone, fee concession for her 2 children studying at ESL schools as well as a laptop computer to facilitate her work. The job of Mr. Gardezi was one in which she exercised her mental faculties and intellectual abilities, learning and experience to evaluate the work of the teaching staff. It was not either manual or clerical work. I refer to job description issued to her and presented as Ex.P.19/Annexure-A." Ex. P-1 9/Annexure-A is reproduced below:--- "Job Description and Person Specification SCHOOL EVALUATION ASSOCIATE A School Evaluation Associate (SEA) carries out evaluations of Beaconhouse schools and, from these evaluations, prepares reports that are made available to a number of specified stakeholders. The SEA works on school evaluations either as a team member or a team coordinator and reports directly to the Director, School Evaluation.
The main functions of a SEA are to: make the necessary preparations to conduct a school evaluation. This includes meeting school representatives and any other stakeholders specified in the school evaluation standard operating procedure, reading relevant documentation and preparing a school evaluation plan; work effectively with other SEAs as a team member or a team coordinator before, during and after the on-site part of the evaluation; conduct observations, facilitate meetings and read documentation to generate relevant information; and then analyse this information to elicit meaning; synthesise, alone and with the evaluation team the analysed information to form well-constructed judgments about the schools education provision; communicate findings orally and in writing (through reports) according to the school evaluation standard operating procedures; prepare and maintain orderly field notes for the-evidential file; and undertake follow-up action as required.
' To carry out the role effectively a SEA should have had previous experience at middle or senior management level in a substantive or acting capacity. The SEA should also have the following:- ' Knowledge: knowledge of effective pedagogical practices; up-to date knowledge of the Pakistan and BSS curriculum; up-to-date professional knowledge of, or a demonstrated interest, the field of evaluation; a well-informed appreciation of the importance of BSS policies and procedures and of any relevant legal processes; an informed understanding of the needs and expectations of different ethnic, cultural and religious group; and a practical level of computer literacy and familiarity with standard business tools.
' Analytical Skills: a high level of analytical skills, i.e. To be able to effectively observe and record, analyses quantitative and qualitative data and draw conclusions based on this analysis; the ability to form sound decisions based on evidence; common sense and thoughtful judgment; the ability to write reports that are logical, based on evidence, draw conclusions that are explicit and direct and that can withstand scrutiny; the ability to plan and organise resources effectively and efficiently; and the ability to assess risk and alert managers where appropriate.
' Relationship Management: SEAs are required to work as members of their teams and with a wide range of stakeholders within BSS, from School Principals to parents. SEAs also need to gather information in a manner that is not prejudicial to the future relationships between the School Evaluation Unit and the schools.
' To carry out the role, SEAs must be able to: work effectively with others to achieve results; clarify for the school personnel the purpose or evaluation, the evaluation process, and their contribution to, and involvement in the task; switch easily between the roles of team member and coordinator; be supportive and sensitive when in a leadership role and offer appropriate feedback to others; communicate effectively in English even when under pressure. This entails the ability to: ' speak clearly, confidently and audibly using language that is appropriate to the audience; ' produce written reports that are appropriate, meaningful, fluent and correct in terms of grammar, syntax and spelling; and use effective questioning techniques and listen attentively."
6. It is in the light of the above material on record that it needs to be determined whether or not the Appellant, employed as a School Evaluation Associate, can claim to be a workman under Section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, whereunder a person employed in an industrial or commercial establishment, engaged to do skilled or unskilled manual or clerical work, is recognized as a workman. However, the learned counsel for the Appellant has urged that the affidavit submitted in examination-in-chief by RW.1 cannot be relied upon as during his cross-examination, RW.1 could not prove that he had appeared before the Oath Commissioner for attestation and also admitted that his counsel and office had guided and helped him in the preparation of the affidavit. I am unable to agree that RW.1 's ignorance about the name and fine of sitting of the Oath Commissioner implies that he had not appeared before the Oath Commissioner The argument is based on the premise that in every case the deponent has to visit the Oath Commissioner but it is also true that many a time an Oath Commissioner would be available otherwise. The drafting of the affidavit with the help of legal advice or otherwise also cannot be questioned as a layman is not expected to know or is familiar with the technical language required to be employed in an affidavit. What is more important are the facts deposed in an affidavit which can always be challenged by the opposite party as it has the opportunity to cross-examine the deponent. Needless to state that such opportunity was availed by the Appellant in the instant case. In any case, the learned Labour Court first administered the oath to RW.1 whereafter he recorded his examination-in-chief in the course of which he submitted several documents including his affidavit as Ex.R.6. Submission of an affidavit only saves Court time otherwise a witness, being present, can simply record his statement. Having been produced alter oath, Ex.R-6 has to be regarded as RW.1's affidavit or at least his statement on oath as it was admittedly signed and owned by RW.1.
7. In order to ascertain the duties performed by the Appellant, Ex.P19/Annexure-A, being the Job Description of a School Evaluation Associate, is a relevant document but the learned counsel has pleaded that it carries no evidentiary value as it is an unsigned computer generated document and is also not addressed to the Appellant or anyone else. Such a plea has been taken despite the fact that the Appellant, while appearing as P.W.1, produced Ex.P.19/Annexure-A without contesting the Respondent Company's stand in its reply dated 07.04.2012 to the Appellant's grievance notice dated 31.03.2012 that the said document was given to her at the time of her appointment as School Evaluation Associate. As regards the duties performed by her, the Appellant averred in her grievance petition that it was her duty to prepare and maintain field notes for the evidential file and to compile reports and hand them over to the General Manager or the Director and while appearing as P.W.1, she deposed that she used to visit schools, hold meetings with teachers, students, parents and school heads, was given indicators to observe the learning, was deputed to observe the teaching and learning and school environments and used to prepare handwritten notes on teaching and learning and schools environments. According to RW.1, the job of the Appellant was not manual or clerical but involved the exercise of her mental faculties and intellectual abilities, learning and experience to evaluate the work of the teaching staff and submit her report. The Job Description, reproduced above, also states that a School Evaluation Associate
(SEA) carries out evaluations of Beaconhouse schools and, from these evaluations, prepares reports that are made available to a number of specified stakeholders and reports directly to the General Manager or the Director, School Evaluation. It can be easily seen from the Appellant's own version that as a School Evaluation Associate, she used to visit schools, meet teachers, students and parents and would observe teaching and learning environment in schools with the objective of evaluating and reporting if the school teachers were teaching in line with the given indicators. Her version is essentially no different but consistent with RW.1's statement that the Appellant's job was to evaluate and report the work of the teaching staff as well as with her Job Description which also says that a School Evaluation Associate prepares reports after carrying out evaluations of the Beaconhouse schools.
8. It was contended by Ch. Abdul Rab, Advocate, that like a well-paid diamond-cutter, the Appellant was a workman as she was engaged in skilled manual work. I am unable to appreciate this argument as the Appellant's work as a School Evaluation Associate cannot be likened to that of a diamond-cutter whose highly skilled work is indisputably manual as it involves physical exertion instead of mental toil. As to what constitutes manual work in the context of the definition of a workman, reference may be made to the case of Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Brooke Bond (PLD 1969 Lahore 717) wherein it was observed as under:- "Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same."
9. Similar view was taken in General Manager, Hotel Intercontinental, Lahore and another versus Bashir A. Malik and others (PLD 1986 Supreme Court 103), wherein, while declaring that a shift engineer was not a workman, it was held by the Hon'ble Supreme Court that:--- "12. There can, therefore, be no doubt that the main and substantial part of his duties were those. Of a skilled engineer, to be performed by application of his expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour . We are unable to agree with the learned Single Judge that mental toil would fall within the expression "manual labour". So far as some paper work to be done by the respondent in preparing reports etc. Is concerned, it is sufficient to state that such minor part of the duties, on the same principle will be immaterial and cannot convert the nature of his work to be clerical, as held in the case of Chairman Brooke Bond Pakistan, Limited.
"However, as discussed above, the real test is asp what constitutes the primary duties assigned to the employee in the course of his duties, which in the present case did not involve but intellectual capabilities of the respondent as a qualified engineer."
10. Likewise, in the case of Pakistan Engineering Co. Ltd. v. Fazal Beg and others (1992 SCMR 2166), it was observed that in deciding whether an employee was a workman or was outside the ambit of a workman the test laid down was whether the work involved physical exertion as distinct from intellectual one or work involving decision on a higher or lower level. Furthermore, as has been held in Wisram Das v. SGS Pakistan (Pvt.) Ltd. And another (2010 SCMR 1234), a job, involving the exercise of application of mind and rational approach, cannot be regarded as manual or clerical in nature.
11. Without taking into account her monthly salary of Rs. 110,178/- and/or the laptop and blueberry cell phone provided to her to facilitate the performance of her duties, can it be said that her job as a School Evaluation Associate was a manual job as has been urged by the learned counsel for the Appellant. The answer has to be in the negative. The Appellant's assertion of preparing handwritten notes on teaching and learning and schools' environments does not illustrate the predominant part or nature of her duties nor does it constitute manual work. I may refer again to General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others, supra, wherein the Hon'ble Supreme Court held that preparation of reports by the employee, being minor part of his duties, is immaterial and went on to observe as under:- "The test for determining the question whether an employee is 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 a person employed in 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."
12. Again in Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others (1993 SCMR 488), it was held that an employee could not be said to be a workman if his duties did not primarily entail clerical and manual work. In the cited case, the employee used to attend Court work as the representative of factory, maintained the accounts of petrol, bottles and motor transport, maintained the accounts of subsidiaries of Shahi Bottlers and also used to operate photostat machine and do typing work but was not held to be a workman.
Similarly, it was held in Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore (1992 SCMR 227) and Abdul Razzaq v. Messrs lhsan Sons Limited and 2 others (1992 SCMR 505) that an employee whose duties did not predominantly but only incidentally involved manual or clerical work would not fall within the definition of workman.
13. Coming back to the Appellant, her main duty was that of an evaluator or assessor which required professional, knowledge and experience, the ability to observe, record, appreciate and analyse quantitative and qualitative data, draw conclusions therefrom and submit reports on the performance of the teachers. The Appellant's job not an ordinary job as it required imagination, observation, rational approach, application of mind and specialized know-how of evaluating the performance of teachers. Her job predominantly and primarily required mental or intellectual toil which cannot be equated with physical or manual work or labour just because she had to do the incidental work of writing notes or reports. In fact, such notes or reports were made possible only on account of the intellectual exercise she had to undertake. A book, essay or report is the end-result or the expression of intellectual exercise or application of mind and its author cannot be said to be a manual worker just because she types it or writes it with her own hands. At the same time, the Appellant's job was not clerical as it entailed use of specialized knowledge, application of mind, exercise of imagination and intellect in contrast to the clerical duties which are always regarded as monotonous, mechanical or routine in nature. In order to improve and polish her skills as a School Evaluation Associate, the Appellant was also sent to New Zealand to attend the course called the School Evaluation Training and Experience. This fact further illustrates the non-clerical nature of her job.
14. Another plea raised on behalf of the Appellant is that she is a workman because, admittedly, she did not have any subordinate to supervise nor did she have any power to hire or fire. This plea cannot be accepted given the finding that the Appellant was primarily engaged in mental toil.
Once again, I find support from General Manager, Hotel Intercontinental, Lahore and another v.
Bashir A. Malik and others, supra, wherein it was held that, even if employees have no directional and controlling power, they may still not be regarded as workmen if the natu:e of the duties performed by them does not involve manual or clerical labour and that the question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive. Further support is available from the case of Ali Ahsan Jafri v. Secretary, Ministry of Defence and 4 others (1983 PLC (CS) 810) which lays down the rule that the power to hire or fire cannot be the sole test to judge the status of a workman as a workman or otherwise. The Appellant also cannot claim to be a workman on the basis that the Respondent Company paid her employees old-age contributions due under the Employees Old- Age Benefits Act, 1976. Although much wider in scope, the definition of an employee in Section 2(bb) of the Employees Old-Age Benefits Act, 1976, is irrelevant here given that the Appellant is not a workman by reference to Section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
15. As a sequel to the above discussion, there is no option but: to dismiss this appeal for being without merit. Labour .