This is an appeal against an award of the learned Chairman, Second West Pakistan Industrial Court, Karachi, dated the 14th 4 March 1970, whereby the learned Chairman came to the conclusion that the appellant was not a workman and that the ward in the Previous Case No. 20/68, under section 38 of the "West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter fled the repealed Ordinance), was a bar to the institution 'of the went application. On these two grounds, the learned Court dismissed the application of the appellant under section 38 of the repealed Ordinance. The facts giving rise to the appeal briefly put are these,
2. The appellant, Fakir Ali, was employed as a Works Supervisor in S.1. T. E., Karachi. He was transferred in May 467, 'from Karachi to Sukkur. He challenged the order of his transfer before the 1st Industrial Court under section, 31 of the industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance of 1959), on the ground that the order of Transfer was mala fide and it was passed to harass and victimize the appellants because of his Union activities. The Application was dismissed by the Court on the ground that it was a frivolous one and the same was published in the Gazette on 8th January 1968.
3. It may be mentioned that the appellant had proceeded S: n leave before the order transferring him to Sukkur was passed. The appellant continued to remain absent after the expiry of the leave.
After the publication of the award on 8 January 1968, the Management, on the ground of misconduct, dismissed the appellant on 1st February 1968. The appellant challenged the order dismissing him from service in an application under section 38 of the repealed Ordinance on the ground that the appellant was an office-bearer of the Union and there being an industrial dispute pending between the Union and the Management, he could not be dismissed from service withoutth the permission of the Industrial -Court. The learned Court by its order dated 17th May 1968, carte to the conclusion that the application was premature, as the appellant had not received the dismissal order. The learned Court further observed that the appellant co;.ld make a fresh application when he received the copy of the order dismissing him from service.
4. The application giving rise to the present appeal was made on 27th August 1968, under section 38 of the repealed Ordinance on the same grounds as alleged in the previous application challenging tile order, dismissing him from service, dated let February 1968, which was disposed of on 17th May 1968, as already mentioned.
5. The learned Chairman of the Industrial Court, after recording the evidence of the parties, came to the conclusion that the appellant was not a workman and, therefore, the application under section 38 of the repealed Ordinance was not maintainable. The learned Court also came to the conclusion that the present application being on the same facts, as the earlier :one, and the appellant having not gone in appeal against the order passed on 17th May 1968, he was not competent to make the present application.
6. I have heard Mr. A. Majeed, the learned Representative for the appellant, at great length. The main point that requires consideration is as to whether the appellant can be said to be a 'workman' within the meaning of the definition given under sec--tion 2 o: the repealed Ordinance. The second point that requires consideration, on the arguments addressed by Mr. Majeed, is that the appellant being an office-bearer of the Union, even if he was not a workman, he could not be dismissed from service. Lastly, the point is as to whether the present application, giving rise to the appeal was maintainable, in view of the decision given by the Industrial Court on 17th May 1968.
7. In order to appreciate the contentions of the learned Representative for the appellant and that of Mr. Ghulam Hassan, the learned Representative for the respondent, it would be useful to reproduce the definition of 'workman' as given in section 2(u) of the repealed ordinance. It maybe mentioned here that at the time when the appellant moved the Industrial Court on 27th August 1968, the Industrial Disputes Ordinance, 1968 had come into operation and the Ordinance of 1959 lead been repealed by section 46, in its application to the Province of. West Pakistan. The definition as given under section 2(u) of 'the repealed Ordinance is as under: " `workman' means any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical or clerical work, for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Ordinance in relation, to an industrial dispute, includes any such person who has been discharged or retrenched in connection with, or in consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.
(i)
(ii)
(iii)
(iv) who is employed in a managerial or administrative capacity; of (v)
8. In order that a person may be said to be a `workman', as defined in the repealed Ordinance, it must be established that he was doing any skilled, unskilled, manual, technical or clerical work. The word 'workmen' has been the subject-matter of interpretation in the case of Chairman Brooke Bond (Pak.) Limited, Karachi v. General Secretary, Karkunane Brooke Bond, Rawalpindi (P LD 1969 Lah. 717). It was observed in that case that: ---------a 'workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical'. 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 there 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. The true nature of the duties performed by the employee is the deter--mining factor in ascertaining if he Eras a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a Workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and riot to the sundry duties incident-- ally performed by him."
9. In a number of cases, in India namely, Ramond v. Ford Motor Company ((1951)1LLJ167) Simpson & Company Limited v. Marisa ((1951)2LLJ42), Ford Motor Staff Union v. The Ford Motor Company of India Limited, Bombay ((1953) 2 L L J 344) and Sarya Sugar Factory, Sardarnagar v Kalika Prasad Dube ((1953-54) 5 F I R 691) a similar view had been taken. A perusal of all these cases would disclose that what has to be seen is the substantial work that a person performs and not the incidental work that he may be performing as subsidiary set the performance of his duties. It has, therefore, to be seen; from the evidence an the record as to what work the appellant was performing.
10. Before the learned Court all that the appellant stated in examination-in-chief was that he was Works Supervisor. He did not disclose the nature of his work in his examination-in-chief. It was only in the cross-examination that the appellant stated as under: ---Nobody works under me We 4 or 5 persons together. I used to supervise the work of the persons working under me and also work along with them. I used to do repair work and connection of the lines etc. It is not a fact that Works Supervisor has not to do a repairing work or connect the lines. I was Works Supervisor."
11 The appellant did not examine any one else it support of his statement in cross-examination. On the other hand, Mr. Nazir Ahmad, Engineer-in-Chief, S. I. T. E., appearance on behalf of the respondent. He stated that the appellant was working under him as a Works Supervisor and he was entrusted with the job of supervising the work of plumbers and helpers in the Water Supply Section.
Mr. Nazir Ahmad further stated that as a Works Supervisor, the appellant was not to do any manual work himself, nor was it apart of his duty to perform clerical function. In cross-examination, Mr. Nazir Ahmad stated that the Works Supervisor could attend to the complaints, if he was asked to do so by the Overseer. The respondents also produced Mr. Mahboob Husain, Office Superintendent. He supported Mr. Nazir Ahmad. He further stated that the Works Supervisor could recommend leave for the workers and labourers working under him, The Works Supervisor could also punishment and other actions to be taken against the Workers working under him.
12. The statement of the appellant, which he had given before the learned Industrial Court in his application under section 38 of the Ordinance of 1959, which eras dismissed on 21st December 19671 was produced the Court. It is Exh. R. W. 1/1. He stated therein that Words Supervisor did not perform any manual work, and that lie used to get repaired Water Pipes fitting through workers. I have going through the statement of Mr 14azir Ahmad and Mr. Mahboob Husain. I do not any reason to disband then' statement as to the nature of work that the appellant had to perform as a Works Supervisor. There is nothing in the cross-examination of these two witnesses to suggest that they had any motive to be unfair to the appellant.
13: In this connection, Mr. Majeed relied on the definition of `workman' in the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance of 1969). He contended that the definition, in the Ordinance of 1969, of workman, is very wide, so as to include a Supervisor also. He submitted that the definition being beneficial to the appellant, as given in the Ordinance of 1969, should be accepted. It is a well-settled rule bf law that an appeal is a re-hearing of the original matter. The appellate Court had to apply the law as it was when the matter came before the Labour Court. I cannot extend 1969-Ordinance, unless it was given retrospective effect, to a dispute, which arose much earlier.
14. I would, for the reasons given above and accepting the evidence of Mr. Nazir Ahmad and Mr. Mahboob Husain, hold that the appellant was not a workman.
15. Mr. Majeed, the learned Representative for the appellant, relying on section 37(2) of the repealed Ordinance, contended that even if the appellant was not a workman, he being an Officer of the registered Trade Union, could not be dismissed from service without previous permission of the Court. Clause (a) of subsection (2) of section 37 of the repealed Ordinance reads as under: "An officer of a registered Trade Union shall not, during the pendency of any proceedings or period specified to that subsection, he discharged or dismissed for misconduct not connected with the dispute, referred to therein, except with the permission of the Court, but he may; pending tile disposal of an application to the Court for such permission be placed under suspension, provided that during the period of suspension he shall be paid fifty per centum of his wages as subsistence allowance, and
16. It is true that the appellant was an officer of a registered Trade Union. The question, however, is as to whether he was entitled to make an application under section 38 bf the repealed Ordinance without being a workman. In this connection, reference may be made to section 38 of the repealed Ordinance. Under section 38 of the repealed Ordinance it is stated as under: "Where an employer contravenes the provisions of section 37 during the pendency of proceedings before a Court, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner to such Court and on receipt of such complaint, that Court shall adjudicate capon the complaint as if it were an industrial dispute in respect of which application has been made under subsection (8)
1. T. E. of section 6."
17. On a perusal of section 38 of the repealed Ordinance, it is clear that the primary ingredient of section 38 of the repealed Ordinance is that only that person can make an appellate application for contravention of section 37 of the repealed tribunal Ordinance, who is a workman. The appellant being not a workman was not entitled to the benefit of section 37 of the repealed Ordinance. A perusal of section 37 of the repealed Ordinance would disclose that an officer of a registered Trade Union would be entitled to certain privileges more than an ordinary workman, but it does not mean that he can take advantage of section 37 of the repealed Ordinance, even if he was not a workman. I would hold that it is only a workman, who could challenge the contravention of section 37 of the repealed Ordinance.
18. I have gone through the order under appeal and I agree with the conclusion of the learned Court that the proper remedyfor the appellant was to have gone in appeal against the order dated 17th May 19.68, whereby the Court had come to the conclusion that the application was premature, as he had not received the copy of the order dismissing him from service. A perusal of the application dated 22nd March 1968, para. 9, would disclose that the appellant's brother had received the order dated 1 February 1968, and that he also received the order on Eaid-ul-Azha, which fell on 12th March 1968. It is obvious, therefore, that the Court could not dismiss the application on the ground that it was premature, as the appellant had received the order, dismissing him from service, on March 12, 1968. In these circumstances, the remedy for the appellant was to have gone in appealfrom that order and not to have made a fresh application on practically the same grounds. I would hold that the present application, giving rise to the appeal, on the ground stated above, was not maintainable. In the result the appeal is dismissed. st