ENQU IRY REPORT ' The following is the report of the enquiry directed by order of the High Court of Sind, Karachi, dated 15th December, 1982 in Constitutional Petition No, D-512 of 1982 KESC v. NIRC directing an enquiry to be held to decide whether 1547 (sic 1647) persons who are shown as members of the respective trade Unions in the K.E.S.C. Establishment are workmen or not ?
2. Applications were submitted by the K.E.S.C. Employees Union and K.E.S.C. Labour Union under section 22(2) of the Industrial Relations Ordinance, 1969 for holding a secret ballot for determining Collective Bargaining Agent in the K.E.S.C. The K.E.S.C. Limited submitted lists of their workmen eligible to cast votes in the referendum, but did not include therein 1547 workers, alleging that they were supervisory staff and as such, did not fall in the category of "workmen" as defind under section 2(xxviii) of the Industrial Relations Ordinance, 1969. This issue was heard by Mr. Moosa Khan, Joint Director Labour (Central Division) the nominee appointed by the Registrar of Trade Unions, N. I.
R. C. To hold the referendum under section 22(13) of the I. R. 0, 1969. By his order, dated 13th April, 1982 he held that the said disputed workers were 'workmen' and directed their names to be included in the list of voters. The management preferred an appeal against the order to the Full Bench of the Commission who by their decision, dated 24th May, 1982 dismissed the appeal as the Bench felt that factual enquiry would entail considerable delay in holding the referendum for which preparations had already been completed.
3. The Management thereupon filed a Constitutional Petition in the High Court of Sind, Karachi wherein the order of the Full Bench was set aside and the Chairman, N. I. R. C. Was directed to hold an Enquiry and decide whether the disputed number of persons are workmen or not within the definition of the Industrial Relations Ordinance, 1969.
4. An enquiry was held by me in which the K.E.S.C. Examined 12 witnesses and submitted several lists of categories of disputed supervisory staff employed in various departments. The witnesses examined were (1) Tariq Noor, Executive Engineer, Operations and Maintenance Department, (2)
Akhtar Hussain Ansari, Deputy Chief Engineer Operations and Maintenance, (3) Rafiq Ahmad, Security Officer Head Security Department, (4) Muhammad Tariq, Superintending Engineer, Steam Station, (5) Ishaq Rahwala, Deputy Chief Administrative Officer,
(6) Muhammad Ahsan, Executive Engineer, Civil and Estate Department,
(7) Anwar Ali Roomi, Controller of Billing, Garden Zone, (8) Israr Ali Khan, Assistant Engineer Transport Garden Zone, (9) Haroon Suleman Patel, Officiating Chief of Operations Computor Department, (10) Abdul Haleem Siddiqui, Superintending Engineer, Construction, (11) S. S. Mehdi, Deputy Chief Controller of Stores and (12) Amir Bakhsh Memon, Executive Engineer, Commercial and Planning Department. On behalf of the Labour Union, two witnesses were examined namely.
Haji IOW Hussain Siddiqui, Senior Supervisor, Electrical Billing Department and Jaleesuddin son of Wasiuddin, Foreman Electrical Industrial Zone Billing Department. I also inspected the K. E. S. C.
Steam Station, West Wharf on 26th February, 1983 and interviewed Mr. Viqar Deputy Chief Engineer, Mr. Ihsanur Rehman, Superintending Engineer, Maintenance, as well as several Senior Foremen working in various sections, Electrical, Boiler and Turbine, Senior Foreman (Boiler) High Skilled Fitters, Welders and Mechanists.
5. The Cadre structure of employees in the K.E.S.C. Is that apart from the Officers cadre in pay Scales I to VI (with which we are not concerned), the K.E.S.C. Has cadre of Industrial Workmen Grades-I to VII and cadre of clerical and non-industrial workmen also in Grade and pay Scales I to VII. The main contention of the K.E.S.C. Is that the industrial and non-industrial employees falling in Grade/Pay scales IV to VII, supervise the work of employees working in the Grade immediately lower to each of them and performing supervisory duties, and as such they are not 'Workmen' as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969.
6. Before examining the evidence record and by me to see what is the nature of duties performed by the disputed category of employees, it is important to properly appreciate the definition of "workman" in section 2(xxviii) of Industrial Relations Ordinance, 1969. Workman and worker had been defined to mean, any person (not falling within the definition of employer) who is employed including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward.. But does not include any person :-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who being employed in a supervisory capacity draws wages exceeding rupees eight hundred per m ensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
7. It will be noticed that although a "supervisor" has been expressly included as a workman, a person employed in a "supervisory capacity" has been excluded, who either draws wages Rs, 800, per month or performs functions mainly of a managerial nature. There is a real distinction between a "supervisor" and a person employed in a "supervisory capacity". A supervisor, whether named as such or not, is a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties, but has no power to engage or remove, take any other disciplinary action against the workers by his own authority. (Vide Explanation added in definition by Labour Laws (Amendment) Ordinance 1972 Ordinance IX of 1972 (since repealed). A person employed in a "supervisory capacity", on the other hand, is a person who is head and incharge of his section in the establishment. He is competent to give instructions and directions to workmen in his section in the lower grades and to see that they are being followed. He has power and control over the workers in his section to take disciplinary action against them and can sanction leave, overtime, transfer etc. In other words be exercises functions mainly of a managerial nature.
8. Now I will examine the nature of duties of the industrial employees working in Grades-IV to VII. I will take first the establishment of K.E.S.C. Steam Station, West Wharf, which I had inspected. Mr. Muhammad Tariq Superintending Engineer, Steam Station, witness No, 4 produced a list (Exh. A/5) of 76 employees working in the power station in various Grades. They are Senior Foreman (Grade- VII) Foreman (Grade-VI), Chargeman (Grade-V), High Skilled Mechanic (Grade-V), High Skilled Fitter (Grade-V), High Skilled Carpenter (Grade-V), High Skilled Mason (Grade-V) and High Skilled Welder in Grade IV, etc. The duties of Senior Foreman and Foreman are more or less the same, Senior Foreman/Foreman are assigned to Boilers, Turbines, Control rooms, Transformers and other machinery and their duty is to keep watch on their proper running. They are assisted by lower grades of workers such as, Chargemen, who are in Grade-V. The Chargemen are assisted by Plant Operators, who do their respective jobs under directions and supervision of the Foreman. High Skilled Mechanics look after maintenance and defects in turbines and generators with the help of fitters and Senior Skilled fitters. The High Skilled Fitters and High Skilled Carpenters are assisted by workers under them to whom they give orders and directions. High Skilled Welder in Grade IV gives directions and orders to Junior Welders, Karkun, etc. High Skilled Turners Grade-V work on laths, Grinding Machines, Shaper, Drilling Machine and they direct the work of Assistant Turners and Helpers who are under him. High Skilled Mason works on construction, plastering and brick making and has under him Masons and Karkun. It will be seen that each category of the above-mentioned employee directs, controls and supervises the work of the workers immediately under him in the lower grade, besides also themselves doing work personally. Therefore, it can be said that these categories of employees do supervisory duties in view of the hierarehy of grades and the layers of checking. The higher grade employee checks the work of the employee in the immediate lower grade. But higher grade employee cannot be said toil be employed in a "supervisory capacity" merely because they do supervisory duties and draw wages exceeding Rs, 800. p. m. They are not head of the Sections and have to report to those above them. Even Senior Foreman/Foreman have to report to their immediate Superior Assistant/Executive Engineers and cannot be said to have independent discretion or control, of their section. They have no disciplinary control over the lower grade employees and cannot sanction leave or even overtime. It is misconception on the part of the K.E.S.t. To say that they are employed in a "supervisory capacity".
9. In another section of K.E.S.C. Namely, Transport, Garden Zone Karachi, Israr Ali Khan (Witness No, 8) Assistant Engineer, produced a list of staff Exh. A/14 comprising 305 employees. This section is concerned with repairs of K.E.S.C. Vehicles, trucks, cars, pickups etc. He stated that duties of Senior Foreman/Foreman in Grade-VII are more or less the same. They inspect defects of vehicles, prepare job cards, obtain the issue of spare parts, distribute work, supervise and control the execution of the repair work. They also detain workman for overtime. They also work with their own hands and take vehicles out for trial after they have been repaired in the workshop. They are paid overtime and wear uniform with K.E.S.C. Monogram on them. They report to their Superior Officer and Assistant Engineer and have no powers or discretion themselves of Management by taking disciplinary action, sanctioning leave, overtime, etc. No doubt, the Senior Foreman/Foreman do supervisory duties. But they are not employed in a "supervisory capacity" and are clearly workmen.
The other categories of employees in the workshop, such as High Skilled Mechanic Fitters, Mistry, Carpenter, Welder, get work done through workers immediately under them, besides themselves personally doing the work with their own hands. They are also clearly workmen.
10. In another section of K.E.S.C., Construction, Abdul Haleem Siddiqui (Witness No, 10) produced a list of employees working in three centres namely (1) Garden Road (2) Nazimabad and (3) Tipu Sultan Road, Karachi. The main office controls work of service connection, construction of sub- station and mains construction. He stated that Senior Foreman Incharge, underground Service Construction, was in Grade-VII and under him are Senior Supervisors Grade-V under whom are Supervisers in Grade-IV. Their respective duty is to supervise the execution of the work by workers working under them in the lower grades. Chargeman (Hauler) Grade-V is responsible for hauling and shifting of heavy material on directions from Foreman. Chargeman has workers under him and he gives direct instructions on site to them for moving and hauling the equipment. Senior Draftsman Grade-VI, is responsible for preparing field drawings with the assistance of his Wrafts men and Tracers working under him and he checks their drawings. He stated that duties of Senior Foreman and Foreman, Senior Supervisor and Assistant Supervisor in other centrer are of similar nature. It is clear that the above mentioned employees although they supervise the work of employees under them in the lower grade a-e workman. They are not employed in a "supervisory capacity" doing managerial functions as they are not incharge of their sections and have to report to their own superior Engineers.
11. Examining the nature of duties of the employees working in the clerical, non-industrial cadre, evidence was furnished by Mr. Ishaq Rahwala, Deputy Chief Administrative Officer (Witness No, 5) who produced list of employees Exh. A/6 and Exh. A/7. He stated that duties of Office Superintendent, Grade-VII comprise of checking of attendance of staff working under him, distribution of work, maintaining movement register of the staff, requisitioning of stationery, arranging transport and doing clerical work. There are other employees in lower grades working in his section such as Assistant Office Superintendent (Grade-VI), Senior Office Assistants (Grade-V), Office Assistant (Grade-IV) and other subordinate clerk. The main part of the duties of Office Superintendent and Assistant Office Superintendent are to supervise clerical work, besides doing clerical work themselves. They are not Head of their sections, as they have to report to their own superior officers for obtaining necessary orders. They cannot sanction overtime, nor grant leave or to take disciplinary action. They have to mark their attendance in the attendance register, which is meant for clerical staff. It is clear that Office Superintendents/Assistant Office Superintendents although they do supervisory duties in addition to doing clerical work, are not employed in a supervisory duties. They are clearly workmen.
12. In Billing Department the nature of work of the employees working in Garden Zone Billing Department was deposed to by Mr,Anwar All Roomi (Witness 7). He produced a list of employees performing supervisory duties in Garden Zone Billing Department Exh. A/10. He stated that duty of Meter Inspectors in Grade-IV is to visit sites for checking reading made by Meter Readers (Grade- III). The also assign routine work to Meter Readers, Meter Inspectors also visit sites and check the new connections installed and submits report to his immediate Senior Supervisor who is in Grade- V. Senior Supervisor's duties are to investigate cases of theft of electricity, complaints, defects and submit a report to Superior Foreman Grade-VI. His duties are also to arrange disconnection and reconnection. He works under the directions of Foreman Grade-VI who is Incharge of Field activities pertaining to service as well as recovery. Foreman compiles reports and informations in the office.
They are technical persons although not treated as Industrial Workman. They work under qualified Electrical Engineers. It is clear that Meter Inspector, Senior Supervisors and Foreman do their own work besides supervising the work of workers under them. They are clearly workmen.
13. Regarding the Stores Department, S. S. Mehdi, Deputy Chief Controller Stores was examined and he produced a list of employees Exh. A/17 employed in Central Stores S.I.T.E., Karachi, comprising Chief Storekeeper and Senior Storekeeper. The duties of Storekeeper Grade-VII are to order workmen working under him to take out material from the stores on receiving requisition, to check the stock, prepare debt transfer note for removal of stores and spare parts. Senior Storekeepers are in Grade-VI. They are posted in sub-stores. Their duty is to send requisition for the required material to the Central Stores. If material is available in stock, to issue the same on gate pass. There are Assistant Storekeepers working under him. The work of Chief Storekeeper and Senior Storekeeper are controlled by Junior Officers in respect of stores. The Chief Storekeeper has no power to take disciplinary action or transfer workers, but can only recommend the same to the Junior Officers directly above him. It is clear that Chief Storekeeper and Senior Storekeeper and Storekeepers who are in different grades control, direct and supervise the work of those under them respectively besides working themselves personally. They are clearly workmen.
14. The general nature of duties of the remaining categories of employees working in Grade-IV to VII, Industrial and Non-industrial in other Departments are more or less the same. It was therefore, thought necessary to report the same department-wise.
15. The contention of the K.E.S.C. That because the employees in the higher grades who are drawing wages above Rs, 800 per month supervise and direct the work of employees in the grades immediately lower to them, they are persons employed in "supervisory capacity" is entirely misconceived and misleading. To put it simply, merely because there is hierarchy of checking, namely employees in higher grades checking the work of the employees immediately under him in the lower grades, it does not make the employee in the higher grade a person "employed in a supervisory capacity". The K.E.S.C. Has failed to produce a single instance or any letter of appointment to show that they have been appointed in a supervisory capacity to perform managerial functions or such duties attached to the office.
16. In his oral and written arguments Mr. Javed Sheikh for the K.E.S.C. Referred to certain reported decisions. In the case of Workmen of Bata Shoe Co. Lahore , it was held that a Foreman whose duty was supervisory, namely to get work of repairs done by his lower staff, was not a workman under the definition in section (2)(h) of I. R.
0. 1947 under which "workman" was defined as a person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work, for hire or reward. As the Foreman was not mainly doing any manual or clerical work, he was held not to be a workman under that definition. The definition of workman in section 2(xxviii) of I. R.
0. 1969, is, however, quite different. It is much wider than the limited restriction to manual or clerical work. The case cited by counsel, is therefore, distinguishable. In Abid Naqashbandi v. Muhammad Altaf , the Punjab Labour Appellate Tribunal, held that Supervisor was not a workman under the definition of workman under section 2 (i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as he was not doing manual or clerical work his duties were supervisory. Again, this case is distinguishable in view of the wider definition of workman in the Industrial Relations Ordinance, 1969 which now expressly includes a Supervisor as a workman. Other cases cited by him as well as by Abdul Majid Khan are not relevant as none of them related to workman as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969, but they related to definition of workman in the Standing Orders.
CONCLUSION My finding is that categories of employees in Grades-IV to VII employed in cadre of Industrial and Non-Industrial workmen comprising the disputed 1,547 persons are workmen falling within the definition of workman under section 2(xxviii) of Industrial Relations Ordinance, 1969. A copy of this enquiry report shall be forwarded to Mr. Moosa Khan, who has been directed to hold the secret ballot as a nominee of the Registrar of Trade Unions, N. I. R. C. For necessary action in accordance with law. 1971 PLC 1 1972 PLC 3591 2 1 2