This appeal is directed against the decision of the learned IVth Labour Court , given on 6th March, 1982, dismissing the grievance petition of the appellant challenging the termination of his services by the respondent --Company.
2. The facts which form the background of this appeal shortly stated, are that the appellant was originally employed in the respondent-Company as Export Assistant. It appears that the appellant was promoted with effect from 1st January, 1981 to the post of Export Executive on total emoluments, including house rent, conveyance allowance and dearness allowance, of Rs. 1,990. By the Management's letter, dated 18th March, 1981, the appellant was, assigned further duties and was made responsible for all purchases for the Karachi office of the company and also for other purchase requirements received from the Head Office. However, by letter, dated 22nd March, 1981, the appellant was advised to hand over the charge to Shaukat Javed, Import Assistant, with immediate effect and he was told that he would be informed about his new assignment shortly. On 6th April, 1981, the appellant was served with a charge-sheet alleging that he had been in the habit of overcharging for various expenses incurred by him on behalf of the company. The appellant, in his explanation, dated 7th April, 1981 denied the charge and allegations levelled against him and stated that all expenses on export consignments were incurred in consultation and with the approval of the Resident Representative of the company. Appa--rently this explanation of the appellant was not found satisfactory by the management and hence by letter, dated 7th April, 1981 his services were terminated, after he was given an opportunity of personal hearing before the Resident Representative of the company.
3. The appellant challenged the orders of his termination of services through a grievance petition filed before the learned Labour Court . The respondent-Company resisted the appellant's grievance petition on the main ground that the appellant was not a workman and hence was not entitled to file and maintain a grievance petition against the termination of his services under clause (3) of Standing Order 12 read with section 25- A, I. R. O. The objection of the respondent-Company found favour with the Labour Court which has dismissed the appellant's grievance petition on that ground alone. The respondent- Company had also opposed the grievance petition of the appellant on the further ground that the Standing Orders were not applicable to its employees as less than 20 workmen were employ--ed by .t. This objection was rejected by the learned Labour Court mainly on the ground that in the preliminary objections raised by the respondent-Company, this objection had not been taken.
4. It may be mentioned here that the respondent-Company has pre--ferred cross-objections to the appeal filed by the appellants and the cross---objection taken is that the Standing Orders are not applicable to the res--pondent-Company's office at Karachi as less than 20 workmen are employed therein. Mr. Mahmood Ghani, the learned counsel for the respondent---Company, very fairly did not press the cross objection when it was pointed out to him that this objection was not raised in the preliminary objections preferred by the respondent-Company before the learned Labour Court
5. The sole issue which thus falls to be considered in the instant appeal is whether the appellant is a workman for the purposes of the Stand--ing Orders. It has been claimed by the appellant in his grievance petition that he was a permanent workman employed in the respondent establish-- ment since 1967. It has further been asserted in paragraph 8 of the grievance petition that throughout the employment of the appellant upto the time of termination of his services, he was entrusted with the following duties:- "(1) Booking of the cargo with the shipping agent.
(2)To receive programme of shipment of the cargo from the shipping agent.
(3)To arrange for the loading of the goods from godown to ship and unloading of the goods along side the ship.0 (4)To go through the process of clearance of the goods from Customs/ KPT authorities.
(5)To remain present at the time of loading of the cargo into ship.
(6)To receive Master receipts from the Ship Master and deliver to the office.
(7)Tai attend problems -with regard to K.M.C. Octroi retention of goods in godown."
6. The appellant, however, in his grievance petition has made no mention of the fact that since 1st January, 1981 he had been promoted to the post of Export Executive in the respondent-Company. .
The factum of the promotion to the said post has not been denied or disputed by the appellant and he has admitted in his evidence before the learned Labour Court that he had been promoted to the post of Export Executive with effect from 1st January, 1981 on total emoluments of Rs. 1,990 per month. He has further admitted that ''he used to enjoy the fringe benefits of the executive cadre. It was, however, strongly urged by Mr. Choudhry Rasheed Ahmed, the learned counsel for the appellant, that despite the promotion of the appellant to the post of Export Executive he continued to perform the same duties and functions which he had been performing when he was holding the lower post of ,Export Assistant. On the other hand, it was submitted by Mr. Mahmood Ghani, the learned counsel for the respondent-Company, that on his promotion to the post of Export Executive, not only was the appellant raised to the executive cadre, but he was given along with the letter of his promotion the chart of his new assignments/duties.
The learned counsel relied upon the letter of promo--tion, dated 23rd December, 1980 and the chart of assignments/facilities of the appellant in his new post, appended to the letter of promotion, appear--ing at the pages 145 and 147 of the record of the learned Labour Court . The facilities assignments of the appellant as detailed in the said chart read as follows :- "(1) As an Export Executive you shall be entitled to all the facilities which are given to Executives of the Company besides the incre--ment made in the covering letter.
(2) As an Export Executive, you shall supervise the work done by the Subordinate staff which has been placed under your supervision and control :-
(a) Godown Clerk.
(b) Godown Chowkidar.
(c) Typists:
(d) Messenger.
(3) You shall have the right to employ causal labour and carpenter at the port and then terminate their services when they are no longer required.
(4) You shall personally supervise the examination of goods by the Custom Authorities.
(5) You shall also supervise the loading of goods by the labourers at the Port.
(6) You shall obtain up-to-date information from the Shipping Com--pany in respect to the programme of their- sailing and issue necessary instructions to your subordinate staff for sending the goods from godown to the Port.
We hope that you will leave no stone unturned in your new post and we wish you best of luck in your promotion as Export Execu--tive."
7. The chart of duties and the letter of promotion of the appellant, to which the said chart was appended, were produced before the learned Labour Court by Mehboob Illahi, the Resident Representative of the- res--pondent-Company who testified that the originals of these documents, of which carbon copies have been produced, were sent to the appellant, who has put his initials on the promotion letter in token of receipt of the originals. It- was, however, strongly contended by Mr. Choudhry Rasheed,, _Ahmad, the learned counsel for the appellant, that neither the letter of promotion nor chart of assignments /facilities said to be appended there--with, was communicated to the appellant. I find no force in this conten--tion. It is hardly likely that the appellant would have served in the higher post of executive cadre for more than 15 months without obtaining an order of promotion. The reason for disputing the fact that the promotion order was communicated to the appellant is evident. The said promotion letter expressly refers to his assignments as Export Executive enclosed with the promotion letter. The appellant obviously could not have enjoyed the facilities of executive cadre and the emoluments of his new post, which he admittedly did, unless there was an order in writing in this ,behalf, which there was no reason to withhold from the appellant. Admittedly, when new duties and responsibilities were assigned to the appellant in March, 1981; this was done through a written order. Which the appellant admits was received by him. In fact it was he who produced this order before the learned Labour Court . There is another circumstance which supports the inference that the promotion order was communicated to the appellant. It has been testified by Mehboob Illahi, the Resident of the respondent-Company, that the carbon copy of the promotion order of the appellant produced by him before the learned Labour Court bears the initials of the appellant in token of having received the original. Orders. I have compared the initials on the promotion order,-with the admitted initials of the appel--lant on the appellants letter, dated 2nd May, 1981 addressed to the Manag--ing Director, and his grievance notice, dated 21st May, 1981, and am inclined to the view that they tally.
8. 1t is expressly stated in the assignments of the appellant appended to the letter of promotion that he will have to, supervise the work done by the subordinate staff placed under his supervision and control, i.e. Godown Clerk, (2) Godown Chowkidar, (3) Typist, and (4) Messenger. Ac--cording to the said assignment letter, the nature of his duties was purely of supervisory character and included supervising the examination of the goods by the Customs authority, supervision of the loading of goods by the labour at the dock and obtaining uptodate information from the Shipping Office in respect of the programmes of sailing and issue of the necessary instructions to the subordinate staff for sending the goods from the godowns to the Port. These duties cannot be considered to be involving in any degree manual or clerical work and would appear to be wholly in the domain of management and supervision.
9. However, even if the assignments of the appellant as detailed in the chart appended to the order of promotion of the appellant is ignored, the claim of the appellant that he was performing manual and clerical duties is not established. Although in .His evidence before the learned Labour Court the appellant has asserted that the nature of his duties was manual-cum-clerical, he has not been able to specify the. Exact nature of his duties in his evidence beyond stating that it was his responsibility to handle the work of export from the stage of godown to the ship. Nowhere has the appellant claimed that he was either required himself to load or unload any goods or to perform routine clerical work of writing letters despatchine letters or answering routine correspondences.
The mere fact that the appellant was required to work under the Resident Representative would not make him a workman or take him out of the managerial or supervisory, category, for as pointed out by their Lordships of the Supreme Court, in the; case of Talat Farooq v. Chloride (Pakistan) Ltd. (Civil petition for Special Leave to Appeal No. K-145 of 1976), even the General Manager of the company has to work under the Directors of the company and this by itself would not make him a workman, but the question would always be of the facts and circumstances of each case.
10. Mr. Choudhry Rasheed Ahmed also relied upon the evidence of the appellant's witness, Nabi Bux, in support of his contention that not only the appellant was performing, on promotion to the post of Export Executive, the same duties which he was performing in the lower rank of Export Assistant, but that further the nature of duties was manual-cum-clerical. Although this witness, who was formerly working as Export Executive in the respondent-Company, which company he had left before he gave his evidence in the Labour Court, has stated that the nature of duties of the appellant were of a skilled worker and were also of general and routine nature, he has not spelled out the exact nature of duties of the appellant. It was only in the cross-examination that he stated that the appellant was required to visit the Custom House and to get the goods cleared. He has conceded that the appellant was required to instruct the Godown clerk to take the goods from the godowns to K.. P. T. He further admitted that he had no documentary evidence to show that the appellant was required to perform any manual or clerical work.
11. On the other hand, the Resident Representative in the respondent --Company, Mehboob Illahi, has stated that the duties of the appellant as Export Executive was to give instructions to the typists to type out the export documents, to give instructions to the Godown Clerk to send the goods from the godowns to the docks and to go to the Customs office to set the goods examined by the Custom Authorities, and that the loading of the goods at the Port is done by the labourers and the appellant had only to supervise that the goods are loaded by the workers properly. It is an admitted position that in the respondent organization there were typists, godown clerk and or messenger. Ordinarily, therefore, all typing work and work involving delivery of letters would be done by the typists and the messenger respectively. As regard the godown clerk, even the appellant's wit--ness Nabi Bux, has admitted that it was his duty under the instructions of the appellant to take the goods from godowns to the K.P.T. Premises. It would appear that the appellant, who as Export Executive, was the head of his section, was responsible for ensuring that goods were taken from the go--downs for examination by the Customs/K.P.T. Authorities, and after such examination, the goods were taken td the docks for being loaded in the ships. None of this work would appear to involve any manual or clerical work. It appears from the evidence of Mehboob Illahi as well as Khurshid Beg (Executive Officer, Purchase) and Ganga Ram (Incharge Accounts), the latter two having been examined as witnesses in this Tribunal at the joint request of the parties, that the goods meant for export used to be removed from the godowns by the godown-keeper through trucks, that the loading and unloading of the goods used to be done by labourers for which payment used to be made by the company on vouchers and bills presented by appellant, that the work of opening any packages which were required, to be inspected by the Customs/KPT Authorities and refixing them used to be done by carpenters engaged by the appellant and paid for by the respondent-Company and that at the Docks, the work of loading of the goods used to be done by the tally contractors to whom the goods were handed over at the Docks. It appears that the main duties of the respon--dent were to supervise the transport of the goods, the clearance of goods through Custom/K.P.T. Authorities and the payment of Octroi and other charges payable - on the goods exported. None of these duties would appear to involve any manual or clerical work. All work of manual nature, as already indicated, used to be done through labourers hired by the appellant himself. Witness Mehboob Illahi produced several payment vouchers indicating payment to labourers for loading of goods and to trans--porters for transporting the goods in trucks.
12. A careful examination of the entire evidence in the case indicates that the appellant was a sort of Liaison Officer who ensured that the Customs/K. P. T. And K. M. C. Formalities were complied with smoothly and efficiently. For the performance of these duties, a knowledge of the relevant regulations is required, and no manual or clerical work appears to have been involved. Not a single letter or document was produced by the appellant which has been written out or typed by him. The absence of such evidence indicates that no clerical work at all was being done by the appellants.
13. It only remains to refer to the authorities cited by the learned counsel for the parties. Mr. Choudhry Rashid Ahmad relied upon the decision of this Tribunal in the case of Mumtaz Ahmed v.
Rice Export Corporation, decided on 18th August, 1982. The facts of that case, however, ate wholly different from those of the present case. In that case, it was held that the appellant was a workman, because though he was designated as Assistant Manager, it was admitted by the Deputy Manager, under whom he was working, that no staff was working under appellant and he was himself required to maintain and deal with registers and files in his charge. It was clear from the evidence of the Deputy Manager that the appellant, Mumtaz, in that case was required to perform only clerical functions.
14. Mr. Mahmood Ghani, on the other hand, relied upon the case reported as Bashir Ahmed Zia v.
Chairman, Punjab Labour Appellate Tribunal (1982 SCMR 407). In that case it was found by their Lordships of the Supreme Court that duties of the post held by the petitioner appeared to include supervision of a!1 sale points falling under jurisdiction of Assistant Manager, to assess requirement of seed and fertilizers of each sale point, to tour sale points in Tehsil at least once a week in slack season, to inspect and super--vise operations of sale points, to arrange for lease of godowns for storage of fertilizer, to have close liaison with Co-operative Department, Agriculture Department and all managers of branches of banks. 1n view of the above facts, the Supreme Court held that in the light of the above charter of duties of the petitioner, he could not be considered to be a `workman' as his duties were manifestly not clerical or manual.
15. I might also refer to the decision of a learned Single Judge of the Lahore High Court in the case of P.
1. A. C. v. Chairman, Punjab Labour Appellate Tribunal (PLD 1979 Lah.415). In that case it was found that the employee had been appointed as Liaison Officer by P.
1. A. C. And entrusted with the job of recovering crores of rupees from Government Ministries and foreign Missions by personal contacts and for performance of his duties given a car. Cost of entertainment and also could visit big cities. It was held than that although the job included incidental work, as his work was very important and sensitive requiring much more tact, initiative, capability and drive than that required of a good salesman, the employee could not be considered workman for the purposes of the Standing Orders. The nature of duties of the appellant in the instant case would appear to be somewhat similar to the nature of duties which had been assigned to the employee in the P. I. A.'s case, inasmuch as the main functions and duties of the appellant were to arrange for the transport of the goods from the respondent-Company to the Docks for being loaded into the ships and to ensure their timely an.: smooth clearance by the Customs and K. P. T. Authorities.
16. The upshot of the above discussion is that I would agree with the view taken by the learned Labour Court that the appellant, as Export Execu--tive, was not required to perform any manual and clerical duties and hence he does not fall within the definition of workman as contained in the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordi--nance, 1968, and thus was not entitled to file and maintain a grievance petition against the termination of his services. I would, therefore, dismiss the appeal.