This appeal arises from the decision dated 12th January, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of the appellant was dismissed on the sole--- ground that he was not covered b the definition of workman. --
2. The appellant was initially appointed as typist-cum-clerk in the respondent company on 22nd July, 1944. In April, 1953 he was promo--ted in due course as Office Manager. In July, 1973 his post was redesignated as Secretary Corporate Affairs. Thereafter, he was redesignated as Manager Services, Badami Bagh Works. He fell ill and took leave. His further leave without pay was refused even though on the asking of the company he had got himself medically examined from the company's doctor who had reported that the disease could not be cured and that even the other knee was likely to be affected by the disease he was suffering from. He was asked to resume duty on the ground that he had not been totally disabled. Since the appellant 'did not report for duty, his services were terminated on account of absence for more than 10 days.
3. The case of the appellant is that irrespective of the fact that he was designated as Office Manager and then Secretary Corporate Affairs and thereafter, as Manager, Services, yet his duties throughout remained clerical. He also stated that he had no power of hiring and firing nor could sanction leave of any employee. Exh. P-1 was produced to show as to what were the duties of the appellant. Exh. P-1 is the document by which he_ was redesignated as Secretary Corporate Affairs and in this letter the duties assigned to him are given. It is mentioned that he would be exclusively responsible for the following functions :-
(1) to maintain registers of shareholders and other books required to be kept under the Companies Act,
(2) to handle transfer of shares,
(3) to record minutes of all general and special meetings,
(4) all other matters relating to shares, except financial matters."
It is also mentioned that. The responsibility of the office management was handed over to Mr. Umar Din, who in turn would report to the Manager Administration Industrial Labour Relations. :'It was further directed that the Finance Manager/Chief Accountant shall be responsible for all matters concerning financial implications and shall take charge of all books, documents and cheque books from the appellant. Exh. P-2 is the letter whereby the -appellant was redesignated as Manager.
Services and transferred to Badami Bagh Works in that capacity. How--ever, in Exh. P-2 the duties of the appellant as Manager, Services are not given. Vide Exh. P-3 the administrative department was divided into three heads namely, services section, personnel section and secret section. The head of whole of the administrative department was Mr. Ata Ullah Khan, Manager, Administrative and the appellant was made incharge of Services Section alongwith the following officers .And existing , staff :-- "Mr. Mujtahid Hussain Syed, Mr. Muhammad Jamil, Mr. Muhammad Siddiq Waqar, and Mr. Altaf Ullah Khan."
The date of this letter is 23rd January, 1976 and the letter of redesignation of the appellant as Manager, Services is dated 10th January, 1976. No duty roster was produced by the respondent about the duties and functions of the appellant in the capacity of Manager Services. So far as the duties of the appellant as Secretary Corporate Affairs are concerned, it is apparent from Exh. P-1 that they are not supervisory but are clerical. According to item No. 1, he had to maintain registers of shareholders and other books required to be kept under the Companies Act. This is not proved that he would get the registers of shareholders maintained by his subordinates. So it is clear that he had himself to maintain the registers. Maintaining of registers means making necessary entries in them which is a clerical work. According to item No. 2, he had to handle transfer of shares. Details are not given how he had to handle the transfer of shares. In the absence of evidence, if there was any clerical staff under him, the presumption would be that he had to do the clerical work in handling transfer of shares himself. Item No. 3 clearly shows that he was doing clerical work, because he had to record minutes of all general and special meetings. The words are not that 'to get recorded minutes' but it is written that 'to record the minutes', meaning that he had to record the minutes of the general and special meetings himself. Item No. 4 shows that he was not being relied upon, therefore, he was not given any powers regarding financial matters. Although he was Secretary Corporate Affairs, yet the responsibility of office management was not entrusted to him but was given to one Mr. Umar Din, who was made directly answerable to Manager Administration and not to the appellant. The last provision further shows that the appellant was not being relied upon, therefore, the books, documents, and cheque books were not entrusted to him, but rather he was asked to give charge of all those documents to the Finance Manager/Chief Accountant. It means that the appellant had to make only entries in the books and the cheque books and after doing so, had to deliver the same to the Finance Manager/Chief Accountant. According to Exh. P-3, the charter of duties and detail of job description of the appel--lant was to be given by the Manager Administration, but the learned counsel for the respondent has not pointed out any such charter of duties of the appellant which may have been prepared by the Manager, Admi-- nistration. The case of the appellant is that no duties were entrusted to him as Manager, Services for the period he remained as such. This being so, his duties are to be seen which he had been performing before he was designated as Manager, Services. Before the said assignment, he was the Secretary, Corporate Affairs and I have already discussed his duties by making reference to Exh. P-1. Certain other documents were placed on the record by the respondent to show that the duties of the appellant were managerial and not clerical, but they were not prepared by some responsible officers and moreover they were prepared afterwards. R W-2 prepared those documents, R. W-2 is Assistant Manager and not Manager. Administration, whereas according to Ex. P-3, the Manager. Administration had to prepare the duty roster and assign duties to the appellant. So the documents prepared by R W-2 cannot be said to have been prepared by some authorised person. Moreover, as they were prepared afterwards, it is apparent that the object was to show that the appellant was not a workman. At the time clerical duties were entrusted to the appellant, it was not foreseen that if he is terminated and he challenges the order, he could be declared as workman according to the nature of his duties assigned to him. Afterwards the difficulty was felt and thus the necessity of preparing R W-2/i to R W-3/3 was felt. In cross- examina--tion R W-2 admitted that R W-211 to R W-2/3 were issued under his signatures and that he had prepared them in compliance with the order of the Manager, Administration who had asked for the information to the effect. This witness admitted that R W-2/1 and R W-2/3 did not bear any date. He also admitted that R W-2/1 and R W-2/3 were prepared after Mujtahid Hussain Shah had succeeded that appellant. However, regarding R W-2/1 he stated that he had prepared it in 1975. In R W-2/1 the appellant is shown as head of share section and the duties of the persons mentioned under him are given, but the contents of this document are in direct conflict with Exh. P-
1. Both the documents belong to the respondent management. No doubt the appellant had been signing certain cheques sued as R W-2/4 worth Rs. 315 and R. W 2/5 worth Rs. 297.50 in the capacity of Secretary, Corporate Affairs, but he alone did not sign it. These documents bear the signatures of the Manager, Finance also. This did not change the clerical duties, which were entrusted to him by Ex. 'P-1. His signatures appear on the back of the share certificates R W.2/6 and R W-2/7 at point `A', but he signed them for the Director and thus his original assignment and duties did not stand changed. R W-2/6 is certificate of two shares at the rate of Rs. 50 per share and R W-2/7 is a certificate for one share at the rate of Rs: 50 per share, so these documents are not very important.
Casting any responsibility upon the person who signed them. Moreover, Exh. R W-2/6 and R W-2/7 are not relevant to this case, because they were issued in 1960 and 1969, respectively when the appellant was in the Head Office " and was neither Secretary, Corporate Affairs, nor Manager, Services. Exh. R W-3/1 purports to bear the signatures of the Manager, Administration. In this document the names of the staff are given and the appellant is shown as the head. The date of this document is 1st January, 1977, whereas according to Exh. P. 4, the appellant was on leave since January, 1976 on account of prolonged illness and had requested for further leave upto 31st January, 1977.' So at the time this document was prepared the appellant was not working as Manager, Services. If any document assign--ing duties to him when he was functioning as Manager, Services had been brought on the record, of course the same could have been considered. Moreover, R W-3 admitted that Exh. R W-3/1 was prepared when the appellant was on leave. It is thus clear that at the time the appellant was Manager, Services, no duties were assigned to him and afterwards Ex. R W-3/ l was prepared in order to oust him from the definition of work-- man. Needless to say that not the designation but the actual duties and functions which are performed by an employee are to be considered to decide whether he is or is not covered by the definition of workman. From the above discussion it is now crystal clear that the appellant irrespective of the fact that his pay was more than Rs. 2,000 was made to, work as clerk and was not entrusted any responsible duty and thus he is covered by the definition of workman as given in section (2)(i) of the Standing Orders Ordinnce, 1968. Likwise, he is covered by the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 as actually he was not made to perform any managerial or supervisory duties and his duties as Secretary. Corporate Affairs, remained clerical and there is no evidence what were his duties when he was designated as Manager, Services as RW-3/1 and other documents discussed above were prepared when he was not holding the job and, as stated by R W-1, was on leave. There are two more documents and they also need discussion. They are not, however, relevant. Exh. R-1 is the apology of one Abdul Hamid, Peon, upon which the appellant warned him to remain careful in future. The order is dated 8th February, 1968 when the appellant was neither Secretary, Corporate Affairs, nor Manager, Services. Likewise, R-2 upon which the appellant passed order Exh. R-2/1 is not relevant. Exh. R-2 is the application of Muhammad Hanif dated 27th May, 1959 and the appellant appointed him as driver with effect from 1st June, 1959. At that time also the appellant was neither Secretary, Corporate Affairs, nor Manager, Services.
4. The learned counsel for the respondent on the point of workman has relied upon PLD 1977 SC 236 but this also is not helpful, because it had been observed in it that the persons exercising supervisory powers and having pay exceeding Rs. 860 was ousted from the definition of workman. I have discussed above that the duties of the appellant were not supervisory but were clerical although his pay was more than Rs. 800. Both the conditions should be present in order to oust a person from the definition of workman defined in section 2 (xxvii) of the Industrial Relations Ordinance, 1969. In PLD 1975 Pesh. 240. It has been observed that it is necessary for a person to prove that he is a workman as defined in the Standing Orders Ordinance, 1968 before he could move for the redress of his grievance under section 25-A of the Industrial Relations Ordinance, 1969. There is no dispute about this proposition and thus there was no necessity of citing this authority. 1978 PLC 293 and 1981 PLC 680 are on the point that the onus is upon the person claiming to be a workman. There are authorities to the contrary also wherein it has been observed that the onus is upon the employer but according to my view, since in the present case, the designation of the appellant was akin to a supervisor, the onus was upon him to show that in spite of his designation and pay in thousands, he was performing clerical duties. And I have observed above that in reality he was entrusted with clerical duties for the reasons best known to the employer. 1981 PLC 871 has also been cited by the learned counsel for the respon--dent, in which a jobber whose duty was to train the workers and supervise their work besides signing production register and not involving any manual or clerical work, skilled or unskilled was held to be not a workman. According to the facts of the case this authority is distingu--ishable. He has also cited 1980 PLC 644 in which it has been observed that the nature of duties are to be seen and mere absence of hire and fire powers is not the decisive factor to see if an employee is a workman or not as defined in section 2(1) of the Standing Orders Ordinance, 1968. It was not necessary to cite this authority also, because there is no dispute that the deciding factor is the nature of duties performed by an employee. In 1978 PLC 360 a bank offer holding power of attorney on behalf of the bank was declared not a workman in the absence of evidence on the point of duties in favour of the employee to support the plea that he was covered by the definition of workman. The authority. Is not helpful, inasmuch as in the present case there is overwhelming evidence to the effect that the duties of the appellant were clerical as is apparent from Exh. P.
1. Likewise PLD 1978 Kar. 649 is not helpful because in that case there was no evidence to the effect that the person concerned was doing any skilled or unskilled, manual or clerical work. The observations made in PLD 1969 Lah. 717 are :- "The true test, therefore, is -to look to the direct, immediate and substantial part of the work for which he is employed and not the sundries duties incidentally performed by him. The true answer to this question will, therefore, depends upon the proved facts in each case,"
The salesman of Brooke Bond Tea Company was declared not to be workman, because the main duties were not clerical. Whereas in the present case according to Exh. P-1, all the duties entrusted to the appellant were clerical. This is true that normal duties of the Secretary, Corporate Affairs and the Manager, Services are more than clerical but the present case is of peculiar nature, because in this case intentionally humiliating duties were entrusted to the appellant as is evident from Exh. P-1.
So we have to see the actual duties performed by him and not which he was entitled to perform.
But was entrusted with them. The appellant in his statement stated that when he was Manager, Services, he was asked to survey the buildings and to make suggestions and that he made the survey but could not complete it nor - submitted the report. The respondent did not accept this thing but challenged it in cross-examina--tion, suggesting that the appellant was not asked to make any survey. This was the only duty which the appellant was asked to perform and which he could not complete. If the suggestions given to him in cross---examination are accepted then he did not perform any duty as Manager, Services and, therefore, the duties performed by him on the previous post, i.e. Secretary, Corporate Affairs, are to be looked into. It was also suggested to him that he did not do any work as Manager, Services and that he remained on that post only for two days. If it is so, then obviously the appellant did not perform any duty on that post. I have already discussed above that as Secretary, Corporate Affairs, the duties -8 entrusted to the appellant were only clerical. He therefore, falls within the definition of workman given in the Standing Orders Ordinance, 19681; and the Industrial Relations Ordinance, 1969.
5. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court on the point of workman remand the case for decision on merits, as previously the case had not been decided on facts.