DECISION ' The sole point which falls to be determined in the instant appeal under section 37 (3) of I. R.
0., is whether the appellant is a workman for the purposes of the Sind Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, and is entitled to file and maintain a grievance petition under clause (3) of Standing Order 12 read with section 25-A, I. R. O.
2. The appellant, who was originally employed in a clerical capacity, was appointed as Officer Grade III, in the United Bank Limited, the respondents herein, vide letter, dated 2nd June, 1976. It appears that the appellant was arrested on 29th June, 1977 in connection with an incident which is said to have occurred on 27th June, 1977 in the office of the U. B. L. Mazdoor Union of which Union the appellant claims that he ' was the General Secretary. The appellant is said to have remained in custody in connection with the said case until 5th December, 1977. During the period that he was in jail the appellant sent several applications for leave. According to the appellant, on the next day of his release from jail, i,e, on 6th December, 1977 he reported for duty at the respondent-Bank but was not allowed to perform his duties. Subsequently, the appellant received a letter, dated 8th December, 1977, informing him that his services had been terminated as all his entitlement to leave had been exhausted on 29th September, 1977 and no leave thereafter would either be granted to him nor his post would be kept open for him for an indefinite period. This letter, according to the appellant, was received by him on 8th January, 1978. After serving the required grievance notice on the respondent-Bank, the appellant took his grievance on 13th April, 1978 to the learned Fifth Labour Court. The said Court, by its decision, dated 18th September, 1980, has dismissed the appellant's grievance petition on the grounds, firstly, that the appellant was an Officer of the Bank and not a workman and hence his grievance petition is not maintainable, and secondly, that the grievance petition is further not maintainable as the case of the appellant is covered by Article 258(6) of the Report of the Wage Commission for Banks and Financial Institutions, 1974-75, and not by the Standing Orders. Aggrieved by this decision the appellant has come up in appeal to this Tribunal.
3. Mr. Ali Amjad, the learned counsel for the appellant while conceding that the appellant had been promoted from clerical Status to the appellant status of Officer, Grade III, in the respondent bank by the letter, dated 2nd June, 1976, contended that notwithstanding his promotion the appellant continued to perform the same duties as he was performing before promotion, namely, the duties of clerk. His precise argument was that mere promotion does not take any employee out of the definition of "workman" unless it can be shown that the nature of his duties on promotion has become managerial. In support of his contention, Mr. Ali Amjad relied upon the cases reported as Allied Bank of Pakistan v. Suleman Hussain Shah (1) and Jasmine Cotton & Silk Mills v. Shujahat Ali (2). In the former case, the question which arose for consideration before the learned Labour Appellate Tribunal, Punjab, was whether the respondent, who was working as Manager of Lyallpur Kutchery Bazar Branch of Allied Bank of Pakistan, was a workman for the purposes of the Labour Laws. On the following reasoning, the learned Labour Appellate Tribunal held that the Labour Laws were applicable to the respondent :- "In this instant case the onus was on the appellants to prove that he was not a workman, which they failed to discharge. The only evidence regarding the true nature of the respondent's duties is mentioned in the power-of-attorney Exh. D-6, according to which his primary duties were clerical.
Since the appellants failed to discharge the onus placed upon them, the presumption would arise in favour of the respondent. I am fortified in this view by the judgment of the Sind Labour Appellate Tribunal in the case of." (Jasmine Cotton & Silk Mills, Karachi v. Shujahat Ali [974 PLC Note 28 at p.
17.
4, In the case of Jasmine Cotton & Silk Mills, which was relied upon by the Punjab Labour Appellate Tribunal in the case of Allied Bank of {{FOOT NOTE}}
(1) 1980 PLC 81 {{FOOT NOTE}} ' Pakistan, the question which arose for consideration by my learned predecessor was whether the respondent, who was employed as a Printing Master on Daily Wages of Rs, 15 was a workman. In this behalf my learned predecessor observed as follows :- ' Lastly, it was considered that the respondent was not a workman. This again is a question of fact. It would depend upon the nature of work that the respondent was performing as to whether he was a workman or not. There is no evidence on behalf of the appellant as the exact nature of the work that the respondent was performing, so as to lead one to the conclusion that he was not a workman. I would hold that the respondent is a workman."
5. No authority has been cited in the above case for the view that the burden of proof is upon the employer to establish that an employee is a workman for the purposes of the Standing Orders or other Labour Laws. The question on whom this burden, falls, whether the employer or the employee has been considered by me at some length in the case of Johnson & Johnson v. Zubair Ahmed (I).
In that case the relevant authorities have been considered and it was observed as follows :- "It next falls to be considered on whom lies the burden of proving that a person seeking to enforce a claim or right under section 25-A, Industrial Relations Ordinance is a 'workman, (Normally a person who seeks to enforce a claim must establish that he is entitled to that claim or right and consequently a person filing an application under section 25-A, Industrial Relations Ordinance, 1969, must establish that he is a 'workman' under the Industrial Relations Ordinance, and/or under the other law under which he claims the right. In the case of Pioneer Insurance Company, Karachi v.
Presiding Officer Labour Court it has been held by this Tribunal that the burden of proving whether an employee is a 'workman' for the purposes of the Standing Orders, Ordinance is upon for person taking such a plea. However, in the case of Jasmine Cotton & Silk Mills v. Shaukat Ali, it was held that the question whether a person was or was not a 'workman' for the purposes of the Industrial Relations Ordinance, 1969, was a question of fact and the onus to prove to the contrary lay upon the Management and in the absence of such proof, presumption would arise in favour of the 'workman'. I would also respectfully refer in this behalf to a decision of a learned Single Judge, of the Karachi High Court in the case of Warner Lambert (Pak.) Ltd. v. Sind Labour Court, where it has been held that the burden of proving that an employee is not a 'workman' is upon the person who sets up such plea as the definition of `workman' in the Industrial Relations Ordinance, 1969, is of a presumptive character and presumes every employee to be a 'workman' unless covered by any of the exceptions. It is well established that if a person claims the benefits of an exception, the burden of proof lies upon him to establish that the section applies to his case. However, in the case of the Standing Orders Ordinance, the position would appear to be materially different and the view taken by this Tribunal in the case of Pioneer Insurance Company would appear to be correct, for, in order to establish that a person is a 'workman' for the purpose of the Standing {{FOOT NOTE}}
(1) 1980 PLC 622 {{FOOT NOTE}} ' Orders Ordinance, he must be required to perform manual or clerical work, whether skilled or unskilled. It is obvious that every employee in an industrial or commercial establishment would not be required to do manual or clerical work. As pointed out by their Lordships of the Supreme Court in Civil Petition for Special Leave to Appeal No, K-145 of 1976, the question whether the duties entrusted to a person are such as to make him a 'workman', would always depend upon the facts and circumstances of each case. It would thus initially be for a person to show that he is a 'workman' for the purposes of the Standing Orders Ordinance, though if he establishes that he is an employee of an Industrial or commercial establishment, the burden would be a light one."
6. It is, therefore, to be seen whether the appellant was employed to do any manual or clerical work or his employment as Officer Grade III was primarily for the purpose of performing managerial functions. An employee, who is mainly employed for supervisory or managerial functions, does not become a workman merely because a small part of his duties involves clerical or manual work and vice versa an employee does not cease to be a workman for the purposes of the labour laws if in addition to his main duties involving clerical or manual work he also incidentally performs some managerial duties. The true test, therefore, as pointed out by their Lordships of the Lahore High Court in the case of Chairman, Brooke Bond Ltd. v. Union Karkunane Brooke Bond (I), is to look to the direct, immediate and the substantial part of the work for which the employee is employed and not to the sundry duties incidentally performed by him. In the instant case, the admitted position is that though prior to his promotion on 2nd June, 1976 the appellant was employed on clerical duties, upon promotion, he was designated as Officers Grade III. His very appointment order shows that he was entering a new phase of his career which involved greater sense of responsibility and better performance was expected of him. As such the appellant cannot rely upon his past duties for the purposes of showing that he was still continuing to perform clerical duties despites his promotion.
Had the appellant continued to perform duties substantially of clerical nature after his promotion the position would have been different but there is no evidence to show that after his promotion the appellant performed and was required to perform or was employed for the purposes of performing duties of clerical nature? In fact the evidence on record shows that since his promotion the appellant performed no duties of any nature. It is the case of the appellant that he was not assigned any duties while on the other hand it has been stated on oath by witness. Akbar A. Habib, Assistant Vice-President of the respondent-Bank, under whom the appellant was employed, that the appellant refused to do any work and hence no work was assigned to him. Whatever may be the true position, the fact remains that no work of clerical nature or involving physical or manual exertion was performed by the appellant after his promotion as Officer, Grade III.
7. I have shown that upon his promotion as Officer Grade III, the appellant broke his links with his past clerical career and started a new phase of his career which not only involved greater responsibility but also {{FOOT NOTE}}
(I) PLD 1969 Lah. 717 {{FOOT NOTE}} ' gave him considerable monetary benefits and other facilities, The staff circular, dated 5th October, 1977, details the revised scales of pay, allowances, fringe benefits, etc. To Officers and Executives of the respondent-Bank. This circular, thus, puts Officers and Executives in the same category though their scales and emoluments and fringe benefits are naturally different. This circular makes no mention of the clerical or non-clerical staff and is restricted in its application to Officers and Executives. The circular provides for giving of options by the Officers regarding the application of the circular to them. The appellant, notwithstanding the fact that he dishonestly tried to deny in his evidence before the learned Labour Court that he had been promoted as Officer, has given his option for being governed by the revised pay scales, allowance and fringe benefits admissible under the circular, dated 5th October, 1977.
8. Before concluding this judgment I would like to refer to the unreported judgment of their Lordships of the Supreme Court in the case of Salahuddin Masood v. Pakistan and others (Civil Petition for Special Leave to Appeal No, K-89 of 1975. In that case it was held by their Lordships of the Supreme Court that the Manager of the Bank was not a workman for the purposes of the I. R.
0. No doubt, the appellant was not appointed as Manager nor is the issue in this appeal whether the appellant is a workman for the purposes of the I. R.
0. But there is evidence on record to show that it is Officers, Grade III, who work as Manager of the Branches in Banks. Furthermore, if a person is not a workman for the purposes of the I. R. O. It is hardly likely that he would fall within the definition of workman for the purposes of the Standing Orders, as the latter definition is narrower than the definition of workman in the Industrial Relations Ordinance.
9. For the reasons discussed by me above, I would concur in the view taken by the learned Labour Court that the appellant is not a workman for the purposes of the Standing Orders and, accordingly, dismiss this appeal.