' ALI SAIN DINO METLO, MEMBER.--- The appellant has challenged order dated 26th September, 2013, of the Sindh Labour Court No.V, Karachi, dismissing his grievance application.
2. Briefly, the facts are that in January, 2009, the appellant joined the respondent (a communication service provider company) as a software engineer and was lastly drawing monthly salary of Rs.37,500/- when in April, 2010, his services were terminated, as they were no more required.
3. Receiving no response to his grievance notice, the appellant filed grievance application # 34/2010 for his reinstatement in service with full back benefits.
4. The respondents, while admitting to have laid off the appellant in pursuance of its downsizing policy due to international economic recession, challenged maintainability of the grievance application on the grounds that the appellant was not a workman and provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable to the company, as the total number of its employees was nineteen.
5. The appellant examined himself, while the respondents examined its Manager Finance, Abid Hussain Mazari. The Labour Court dismissed the grievance application on the ground that the appellant was not a workman.
6. The appellant is a qualified software engineer. He was performing highly sophisticated job of developing, maintaining and testing software, which, according to the appellant himself, was a specialized work and could be performed only by a qualified engineer/specialized professional.
7. The answer to the question whether or not the job performed by the appellant was job of a workman depends upon definition of workman in the relevant law. Different labour laws, such as the Workmen's Compensation Act, 1923, the Factories Act, 1934, various Industrial Relation Ordinance/Acts, the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, define workman/worker differently. The appellant seeks enforcement of his rights under the latter law and, therefore, the definition given in it will be relevant. It reads: "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."
8. The definition makes it clear that it is the nature of work of an employee which determines his status as workman. His work must be either manual or clerical.
9. Literally, manual work is the work done with hand, and, by figurative extension, it is the work done with any of the muscles and bones of the body. Manual work requires physical exertion more than the clerical work requiring physical exertion of lesser magnitude.
10. For the accomplishment of any human work, both i.e. Physical effort as well as mental effort are necessary. Limbs work on the direction of mind. There is hardly any human work which can be termed as purely manual or purely mental. Mental effort, a thought in mind, can be manifested and transferred into work only through physical effort.
11. Manual and clerical works are ordinary works of routine nature and do not require high skills, high knowledge or high education. Specialized works requiring high skills, high knowledge and high education cannot be termed as manual or clerical works.
12. Software engineering is highly specialized study of applying engineering to design, develop and maintain software. The work performed by the appellant required high degree of skill, knowledge and education and little physical effort for its manifestation by using keyboard of computer. It is predominantly work of mind and work of hands is merely accessory.
13. In the case of General Manager, Hotel Intercontinental, Lahore, v. Bashir A. Malik, reported in PLD 1986 SC 103, it was held that shift engineer was not a workman under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, because his expert technical knowledge was substantial and more important part of his duties of maintaining and rectifying sophisticated machinery such as air-conditioning plant, boilers, laundry equipment and kitchen equipment than his physical exertion. He was disqualified as worker not because of supervisory nature of his duty, as that was provided under the Industrial Relations Ordinance, 1969, and not under the relevant law i.e. The Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968.
14. The appellant heavily relied upon the case of All Pakistan SRBC Workers Union v. NIRC, reported in 2015 PLC 210 Islamabad, in which Islamabad High Court has held that T.V. Engineers were workmen as defined under Section 2(xxxiii) of Industrial Relations Act, 2012, because they did not fall within the definition of employer and were not employed in managerial or administrative capacity.
15. As pointed out above, definition of workman is different in different laws. The definition of workman in the Industrial Relations Act, 2013, is wide in the sense that no condition of doing manual or clerical work is attached to it. The definition of workman in the Industrial Relations Act, 2013, and its elucidation by the superior Courts cannot be applied to the appellant seeking enforcement of his rights under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
16. In view of the above facts and circumstances of the case, I am of the considered view that the Labour Court was justified to hold that the appellant was not a workman within the meaning of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Accordingly, the appeal, being meritless, is dismissed.