DECISION The services of the respondent, who is said to have been originally employed in the appellant company as loom cleaner but was promoted ultimately to the post of supervisor were terminated by letter, dated 29th January, 1981, which reads as follows :- "Mr. Sirajuddin Son of Muhammad Zahoor.
We regret to inform you that as a result of reorganisation the job of supervisor has become redundant to our requirement, therefore, your services are terminated with immediate effect.
You are hereby advised to collect your dues from our - office on tiny working day.
Thank you, For United International Limited (Sd.) 29th January, 1981 Manager."
Aggrieved by the aforesaid order of termination of his services, the respon--dent, after serving the requisite grievance notice upon the appellant-- Company, preferred a grievance petition before the learned Fifth Labour Court. The grievance petition was resiste0 by- the appellant-Company on two main grounds, firstly, the respondent being a supervisor was not a workman and hence was not entitled to file and maintain a grievance petition, and secondly, that the services of the respondent were terminated due to bona fide reorganisation in .Which services of all the supervisors were terminated. The learned Labour Court repelled both the contentions of the appellant-Company and has allowed the grievance petition of the respondent and directed that he .Be re-instated in service with full back benefits. Aggrieved by this decision, the appellant-Company has come up in appeal to this Tribunal.
2. Mr. S. Safdar Hussain, the . Learned counsel for the appellant---Company, has assailed both the grounds on which the learned Labour Court-- has allowed the grievances petition of the respondent. He submitted that admittedly at the time that the respondent's services were. Terminated he was working as supervisor. As to the nature of duties which the respondent was required to perform as supervisor the learned counsel submitted that they consisted of, firstly, being incharge of his shift, and secondly, maintain--ing the record of the production of the workers during the shift. On the other hand it was contended by Mr. S. M.
Kohistani, the learned counsel for the respondent employee, that though the respondent may have been designated as supervisor, his duties were manual and clerical in nature. The learned counsel submitted that the real duties of the respondent were of skilled nature, but he was not able to specify the exact nature of those duties. Although the respondent, in his-evidence before the learned Labour Court , had denied that at the time of termination of his services he was working as supervisor, there is overwhelming evidence to show that at the relevant time the respondent was holding the post of a supervisor. The factory Manager of the appellant-Company, Zafar Ali, testified before the learned Labour Court that the respondent had been working as supervisor with effect from 1st August, 1978. In support of this assertion he produced an order, dated 11th August, 1978, Which indicates that from the date of- the said letter, the respondent had been, appointed to the post of supervisor. It may, however, be pointed out that neither this letter bears the signature bf the respondent nor even was it shown to the respondent when he was in the witness-box. This omission however, does not appear to affect the position that at the relevant time the respondent was holding the post of supervisor In his grievance notice. The respondent .Self has stated that he had been promoted to the pots of storekeeper, weaver and lastly to that of supervisor. Again in his grievance petition he ha-, reiterated the fact that he was promoted to the post of store-keeper, weaver and lastly to that of supervisor. Finally there is the letter terminating the services of the respondent, bearing. His acknowledgement, in which it is clearly stated that his services as supervisor were being terminated on account of reorganisation. In view of all this evidence, the denial of the respondent that At the relevant time he was employed as supervisor not only cannot be taken seriously but appears to be an unvarnished untruth:
3. The designation of a post, however, is unimportant for determining whether an employee is a workman for the purposes of the Standing Orders. What is to be seen is the nature of his duties. In his grievance notice, the respondent merely, claimed that he was a permanent workman without indicating the exact . Nature of his duties. In his grievance petition he has ,,,'stated that he was performing manual work but again has given no indication of the nature of his duties. In his evidence before the learned Labour Court the respondent improved upon his claim made in his grievance. Petition and stated that he was required to do manual and clerical work, though no mention of clerical work was made in the grievance petition. When he way asked in cross-examination to indicate the exact nature of his duties, all that he stated was that his duties were mainly of mechanical type. From this answer it is difficult to visualize what exactly the witness meant except perhaps that his duties were of routine character or alternatively that he had something to do with the handling and maintenance of machinery. The respondent, however, stated in his cross-examination that he also used to maintain the production register.
4. In support of his case, the respondent had examined two witnesses, Mansoor Hussain and Muhammad Zamrr.. Mansoor Hussain, in his affidavit, has claimed that he was the General Secretary of the Workers' Union, but in his cross-examination he was forced to admit. That he was not the General Secretary of the C. B. A. Union at the time of giving evidence or even at the time of filing hi. Affidavit. In his cross-examination, he had first asserted that the respondent was a weaver and admitted that the work of a weaver was to handle looms. He was, however, forced to admit that at the time of termination of his services the respondent was not handling or operating looms.
Nowhere has the witness stated that the respondent used to maintain or repair the looms or to do any work involving mechanical abilities. He has, however, admitted that the respondent used to record the production.
5. Witness Muhammad Zamin, who states that he was the Joint Secretary of the C. B. A. Union in the appellant establishment, has also not said anything in his affidavit about the nature of duties of the respondent. The main thrust of his evidence was to show that Liaquat Ali and Jehan Dad are entrusted with the work which the respondent was performing.
6. As against the vague and unreliable evidence led by the respondent on the question of the nature of his duties there is positive evidence of the Factory Manager, Zafar Ali, to the effect that the respondent was employed as supervisor, that as supervisor he was Incharge of one of the two shifts. That the other shift incharge was the second supervisor and that the respondent was also required to maintain the record of production. I am inclined to the view that being supervisor incharge of shift, the respondent would not fall within the definition of workman as given in the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, as he was not required to perform any work of manual or clerical nature. The maintenance of production register is a very responsible work and' in my view cannot be deemed to be clerical work.
Furthermore, this was not the only work or even the main work for which the respondent was employed as supervisor. As already indicated he was supervisor Incharge of the entire shift in which a number of workers were employed.
7. Mr. S. M. Kohistani, the learned counsel for the respondent, cited., the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1975 SCMR 535), in which their Lordships of the Supreme Court concurred in the view taken by the High Court that the person who was designated as the Chief Accountant of Dost Muhammad Cotton Mills Ltd.,' was a work--man.
This decision was primarily based on the chart of duties oFthe Chief Accountant, that he had no supervisory duties to perform and that he was working under the instructions of his superior, Mr. Farid Khan. The judgment in the Dost 44'Muhammad's case was sought to be relied upon in the case of Tillat Farooq v. Choloride (Pakistan) Ltd., (Civil Petition for Special Leave to Appeal No. K-145 of 1976), in support of the contention that the petitioner was a workman. Their Lordships in that case, however, obser--ved that the judgment in the case of Dost Muhammad had reference to the very peculiar faces of that case and that they would not extend to a different situation. It was further clarified by their Lordships of the Supreme Court that the judgment does not support the view that a person is a workman merely because he may be working under some one else. Their Lordship emphasised the fact that in order that a person should fall within the definition of workman the nature of his duties should be either manual or clerical.
8. There is same controversy in the instant case as to' the quantum of wages which were being paid to the respondent. According to the appel--lant-Company his wages exceeded Rs. 800 per month while according to the respondent he was receiving wages much less than Rs. 800. The amount of wages which an employee receives is not a material factor in determining whether he falls within the definition of workman as given in the Standing Orders. An employee drawing wages less than Rs. 800, if he is not employ~-ed to do manual or clerical duties, will not be deemed to be a workman fort the purposes of the Standing Orders while a person drawing wages of three to. Four or five thousand rupees, or even more, if he is required to do manual or clerical duties, would, fall within the said definition.
9. The second ground on which Mr. S. Safdar Hussain assailed the impugned decision of the learned Labour Court was that there was in fact genuine reorganization in the appellant establishment. It appears that there were two supervisors in the appellant establishment, one in each shift. .The services of both the supervisors plus the Manager of the factory were admittedly terminated at about the same time. It is now well-settled that an employer is entitled to reorganize his business in any way which he considers appropriate or suitable and to retrench his staff in consequence of such reorganization so long as the reorganisation and retrenchment is bona fide and is not a cloak or.
Device to get rid of an employee who is considered' inconvenient or unhelpful or to circumvent the process of law by terminat--ing the services of the employee. In the instant case, though the claim of the management is that the reorganization were necessitated due to losses but no tangible evidence of such losses came on record. This does not mean that the reorganisation or consequent retrenchment was .Mala fide or was meant to curb or curtail the workers' union activities. The respondent was admittedly not an office-bearer of the union. On the other hand, there is no allegation that any office-bearer of the union, including the General Secretary or the Joint Secretary, had been affected by reorganization or retrenchment. There is also an allegation made on behalf of the respondent that the appellant-Company was taking overtime from its workers but not paying them their legal dues and because the respondent protested against this practice. Therefore, his services were terminated.' Apart from the fact that it` is not understood why the respondent, who was admittedly not an office-bearer of the workers' union, should have taken upon himself the duties to protest against this alleged practice, there is no tangible evidence that in fact tire appellant establishment was not paying its workers their proper legal dues, Admittedly no demand was made by the union in its charter and no reference was vas made to it in the settlement reached between the C. B. A. And the management. Furthermore, no complaint of such a nature was made by the workmen to the Directorate of Labour or any other authority.
10. For the reasons discussed by me above, I would set aside the impugned decision of the learned Labour Court and would allow the appeal.