' The respondent, who was originally employed as Stenotypist with effect from 8th October, 1973, by the National Construction Company, the appellants herein, gradually rose to the rank of Administrative Officer with effect from 1st January, 1975. However, his services were terminated with immediate effect, vide, the appellants letter, dated 23rd February, 1979, on the ground that they were no longer required. The respondent challenged the termination of his services before the learned Vth Labour Court. The respondent's grievance petition was resisted by the appellants on the 2 main grounds, firstly, that the respondent had failed to serve the requisite grievance notice on the appellants and, therefore, his grievance petition was not maintainable, and secondly that the respondent was not a workman for the purposes of the Standing Orders and consequently not entitled to file and maintain a grievance petition against the termination of his services under the provisions of clause (3) of Standing Order 12 read with section 25-A, I. R.
0. Both these contentions were repelled by the learned Labour Court which by its impugned decision, given on 19th February, 1981, has held that the termination of services of the respondent was illegal, mainly on the ground that it was in violation of the provisions of clause (3) of Standing Order 12, in that no explicit reasons for the termination of the respondent workman's services have been stated in the order terminating his services. The appellants being aggrieved by the aforesaid decision have come up in appeal to this Tribunal.
2. I have heard Mr. Rafat Usmani, the learned counsel for the appellants, and Mr. M. M. Jeelani for the respondent.
3.
3. The first ground on which Mr. Usmani sought to assail the impugned decision of the learned Labour Court was that the finding of the learned Labour Court that the respondent had duly served a grievance notice on the appellant, as required by subsection (1) of section 25-A, I. R.
0., is not based on any tangible evidence and has been arrived at on a misconception of the legal position in this behalf. The stand of the respondent on the other hand is that he had served 2 grievance notices on the appellants, one on the Managing Director of the Company and the other on the Chairman of the Company. The appellants denied that any grievance notice was served upon the Managing Director of tile Company. As regards the notice to the Chairman of the Company, it was contended that since the Chairman was not the employer of the respondent, it was not a valid notice. In view of the fact that the appellants, in their reply statement, denied that the requisite grievance notice was served upon them, the respondent examined Zakir Husain Saimwalathe Secretary to the Managing Director, to whom the respondent claimed that he had delivered the grievance notice for the Managing Director. The evidence of this witness is interesting.
He does not deny that the grievance notice for Managing Director was delivered but he sought to take shelter behind the ambiguous statement that he does not remember if the grievance notice submitted by the respondent was given to him. He however, admits that the respondent had met him, though he tried to show that the meeting was in connection with the claim of the respondent for promotion. I am inclined to the view, by reason of the vague evidence given by witness Zakir Hussain, coupled with the sworn testimony of their respondent that he had delivered a grievance notice for the Managing Director to the said witness that the grievance notice was duly given to the said witness for the Managing Director. Even if there lingers any doubts on the point whether the grievance notice was delivered to witness Zakir Hussain for the Managing Director there is tangible evidence to show that a grievance notice was also sent to the Chairman of the appellant company. The postal acknowledgment of the notice to the Chairman, which is dated 13th March, 1979, has been produced. This evidence has not been controverted by the appellants. However, it was contended by Mr. Rafat Usmani that as the Chairman of the company was not dealing with the day-to-day affairs of the company and was in fact an ex-officio Chairman by reason of being the Secretary Works, Government of Pakistan he cannot be said to be the employer of the respondent for the purpose of the I. R.
0. In my opinion, this contention is without substance. 'Employer' in relation to an establishment, which is not run by or under the authority of any department of a Federal or Provincial Government, includes, besides the person or body of persons which employees or employ the workmen, not only any person responsible for the management, supervision and control of the establishment, but also "the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof." The Chairman of the company thus would clearly be included in the definition of the employer for the purposes of the I. R.
0. And the notice to him would clearly be a proper notice for the purposes of section. 25-A, I. R.
0.
4. It next falls to be considered whether the respondent was a workman for the purposes of the Standing Orders. In order to establish that the respondent was such a workman, it has to be shown that he was employed to do manual or clerical work, whether skilled or unskilled. The burden of showing that he was so employed was on the respondent, as pointed out by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmed and another (1). The test for determining whether an employee is a workman for the purposes of the Standing Order, as laid down by the Lahore High Court in the case of Chairman Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Brooke Bond (2), is to look to the direct immediate and substantial part of work for which he is employed and not sundry duties incidentally performed by him. If it is found that only a small part of the work required to be done by him can be considered to be manual or clerical work, that would not change or alter the complexion of his main duties and such person cannot be considered to be a workman for the purposes of the Standing Orders. In the recent case of Pakistan International Airlines v. Chairman Punjab Labour {{FOOT NOTE}}
(1) 1980 P L. C 620 (2) 1969 PLC 616 {{FOOT NOTE}} ' Appellate Tribunal (I), applying the above test, it was found that the respondent, who was appointed as a Liaison Officer was entrusted the job of recovering crores of rupees from Government Ministries and foreign Missions by personal contacts and for performance of his duties he was given a car, cost of entertainment and also he could visit any cities. It was also found that the respondent according to the gradation chart of the P. I. A. C., was 3 steps above the Accounts Supervisor, 2 steps higher the Junior Accounts Officer and 1 step higher than Outstation Accounts Managers. In the circumstances, it was held that the respondent could not be considered to be a workman for the purposes of the Standing Orders.
5. It is, therefore, to be seen what is the true nature of the duties which the respondent was required to perform when he was promoted to the rank of Administrative Officer. The Letter, dated 6th June, 1975, is very helpful in this behalf. It reads as follows :- "Senior Project Manager, ' N. R. L. Project, KARACHI.
' Sub :- Service to be provided to Industrial export.
' With effect from 1st June, 1975, all matters pertaining to services to be provided to Industrial export as per lists Nos. 1 and 2 of their letter No, IEK/1360 dated 18th November 1974 (copies enclosed), will be dealt and controlled centrally from the NRL, Korangi SITE, and Mr. S. A. Rahim, Administrative Officer, will directly deal with this matter and will be responsible to you regarding the same.
' Mr. Mateen Hashmi, Administrative Officer, seconded in IK Industrial group, will report to Mr. S. A.
Rahim for all matters relating to these services.
' All accounting and submission of Bills for the services will be undertaken by Mr. Rahim at the NRL Korangi SITE, after obtaining your approval.
' Kindly issue necessary instructions to the concerned personnel in this matter with a copy to me.
(Sd.) Brig. (Rtd.) Vasef Hussain General Manager Execution I."
6. It will thus be seen that the main duty of the respondent was to act as Liaison Officer between the Industrial export and the appellant company and the respondent was required to ensure that the staff of the Industrial export receives the services and the facilities stated in Lists I and II as per their letter, dated 18th November, 1974. That letter and the lists appended therein have been produced by Saeed Akhtar Ansari,- Director of the appellants company. It was contended by Mr. M.
M. {{FOOT NOTE}}
(1) 1979 PLD Lah. 415 {{FOOT NOTE}} ' Jeelani that providing of these facilities to the staff of the Industrial export entailed considerable manual and clerical work by the respondent as he himself had to perform all the manual and clerical duties in connection therewith and act as a sort of Personnel Assistant to the staff of the Industrial export. In support of his contention, the learned representative relied upon 2 petty cash vouchers at pages 149 and 163 of the Lower Court's record, and the documents appended to the said 2 vouchers. These vouchers show that the respondent for the first voucher had claimed an amount of Rs, 959 and on the second voucher, an amount of Rs, 1,142.60, in connection with the preparation of Passports and Visas, etc., for the staff and their families of the Industrial export.
These vouchers indicate that certain amount of labour must have been involved in the obtaining of the required Passport and Visas but they do not establish that the respondent was employed to do any manual or clerical work or that in fact he was doing any such work. According to the evidence of witness Saeed Akhtar Ansari, who was examined by this Tribunal, the respondent was provided with a typist, a chowkidar, a cook, a driver and a clerk. In view of this substantial establishment which was provided to the respondent, it is not possible to exact the proposition that the respondent himself was performing even the manual and clerical work involved in providing contractual services to the staff of the Industrial export of the appellant company. No doubt, as pointed out by Mr. M. M. Jeelani, there is n3 indication that the respondent had any powers to hire and fire or was entrusted with any supervisory duties but at the same time there is no evidence to come to the conclusion that the main or substantial nature of duties of the respondent was manual or clerical. I do not see how manual or clerical work is involved in conducting the various offices of the Government or the Embassies in connection with obtaining Visas and Passports. The fact that an officer of such a status was entrusted with such duties indicates that a person of tact, experience and ability was required to handle these duties so that expatriate staff of the appellant company did not have much trouble in flailing the statutory or other requirements for the purposes either of their stay in the country or going abroad.
7. Since, in my opinion, the substantial nature of duties for the performance of which the respondent was employed or which he was required to perform cannot be assimilated to clerical or manual work, the respondent cannot be considered to be a workman under the Standing Orders. A much his grievance petition was not maintainable. I would accordingly allow this appeal and set aside the impugned order.