' HAIDER ALI PIRZADA, J.-- In this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan read with Laws Continuance in Force Order, 1977, it is prayed that the orders of the respondents Nos. 1 and 2 holding that the petitioner was not a "workman" be declared as unlawful and of no legal effect and further to declare that the petitioner was a "workman" within the meaning of the Standing Orders Ordinance, 1968 and the I.R.O., 1969, and to direct the respondent No. 3 Bank to re-instate in service with full back benefits.
2 .The brief facts of the case are that the petitioner applied to the respondent-Bank for the post of Probation Officer. The respondent-Bank by its letter dated 16-6-1965 offered the same to the petitioner which offer was accepted by him and he was confirmed with effect from 16-6-1965. He was posted in different branches of the respondent-Bank and finally he was posted at the Airport counter of the respondent-Bank P.I.A. Branch where he was alleged to have misbehaved with a customer on 31-1-1972 and accordingly on the allegations of misconduct repeated charge-sheets were issued to him on 4-2-1972, 14-2-1972 and 18-2-1972. According to the respondent-Bank the repetition of charge-sheets was necessitated because the petitioner was constantly avoiding to accept the charge-sheet and subsequently, the petitioner absented himself from duty from 15th February, 1972 to 18th September, 1972 without any intimation to the respondent-Bank. The respondent-Bank accordingly dismissed him from service w.e.f. 19-9-1972 on the ground that the petitioner had failed to comply with the respondent's repeated instructions to report to the Bank's Medical Officer which amounted to wilful insubordination and disobedience, constituting a misconduct under the West Pakistan Industrial & Commercial Employment (Standing Orders)
Ordinance, 1968. Dismissal order is annexed to the petition as Annexure "A"
2. The petitioner submitted a grievance notice on 6-6-1972 requesting the respondent-Bank to withdraw the dismissal order and to re-instate him in service on the ground that the respondent- Bank did not hold any enquiry at all in his case. In any case it was pleaded therein that he was dismissed without affording him any opportunity. This action of the respondent-Bank was alleged as violating the principles of natural justice inasmuch as he was not charge-sheeted nor any enquiry was held against him. The petitioner's grievance notice dated 6-10-1972 was rejected by the Bank's letter dated 16-10-1972 on the ground that he was found guilty of wilful subordination and disobedience of orders of the management, which constituted a serious misconduct as such his request was not accepted to. He preferred an appeal which was also dismissed. On 8-4-1973, the petitioner filed an application under section 25-A, of the I.R.O., 1969 before the Junior Labour Court. The respondent-Bank in its written statement pleaded that the petitioner was an officer within the meaning of section 2 (xxviii) of the I.R.O., 1969. The Junior Labour Court dismissed the application of the petitioner by an order, dated 4-10-1973. The petitioner preferred an appeal before the VI Sind Labour Court, Karachi, which was allowed by an order, dated 16-2-1974 and the Labour Court set aside the order, dated 4-10-1973 on the ground that the respondent-Bank did not produce the copy of the General Power-of-Attorney given by the Bank to the petitioner and also did not produce any evidence as to what are the functions and duties of the petitioner and as such he to the Lower Court for recording all the evidence and to decide the matter in accordance with law.
' The application of the petitioner then came up for hearing before the Junior Labour Court No. III on 23-4-1974. The learned counsel for the respondent-Bank was not present and did not adduce any evidence as such the application was allowed on 23-4-1974. The respondent-Bank challenged the order in Constitution Petition No. S-833 of 1974 in the erstwhile High Court of Sind and Baluchistan, Karachi, which was allowed on 18-5-1976 and the case was remanded for disposal in accordance with law. After the remand of case, the application came up for hearing before the III Sind Labour Court who after recording the evidence of the parties and after hearing arguments of the learned counsel for the parties, dismissed the application vide order dated 21-3-1977 and held that the petitioner was not a workman.
' The petitioner preferred an appeal being Appeal No. KAR-123 of 1977 before the respondent No.
1. The learned Sind Labour Appellate Tribunal, after hearing the arguments of the learned counsel for the parties, dismissed the appeal by an order dated 30-7-1977, and held that the petitioner was not a workman. The orders, dated 21-3-1977 and 30-7-1977 are under challenge in this petition. We have heard Mr. All Amjad for the petitioner and Mr. Ibrahim Pishori for the respondent-Bank.
4. Mr. All Amjad, the learned counsel for the petitioner, contended that the petitioner was a "workman" within the meaning of section 2, clause (xxviii) of the I.R.O., 1969 and also under section 2(i) of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968.
' It was strongly contended by Mr. Ali Amjad, the learned counsel for the petitioner, that the petitioner was a workman and though designated as an officer was carrying out and was required to carry out clerical duties and was posted at the Airport counter of the respondent-Bank.
' On the other hand, Mr. Ibrahim Pishori, the learned counsel for the respondent-Bank contended that the petitioner was appointed as an officer in the respondent-Bank and he was posted at the Airport Bank as Manager and was employed within the meaning of section 2 clause (xxviii) of the I.R.O. And section 2(c) of the West Pakistan Industrial and Commercial (Standing Orders)
Ordinance, 1968. It was further contended that the petitioner had been running independently the P.I.A. Unit of respondent-Bank dealing with foreign exchange and all the staff posted at that unit was working under him; he was doing mainly managerial work and has been working in administration capacity as a competent officer; he was vested with all such powers and practically conferred upon him by virtue of power-of-attorney which he was holding until he worked with the respondent-Bank. It was, therefore, urged that the petitioner was employed in managerial and administrative capacity as a Branch Manager of the respondent-Bank.
5. In order to appreciate the contentions of the parties it is necessary to reproduce section 2(viii) and (e) and (xxviii) of the I.R.O., 1969 and section 2, clauses (c), (i),(ii),(h) and (i) of the Industrial and Commercial Employment (Staning Orders) Ordinance, 1968, as follows: ' Section 2 of I.R.O., 1969:- "(viii) "employer", in relation to an establishment, meaning any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes:"
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof.
(xxviii) "worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute."
' Section 2 of Standing Orders Ordinance, 1968:- "S.2. (c) "employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes--
(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory:
(ii) in any industrial establishment under the control of any department of the (Federal) or any Provincial Government the authority appointed by such Government in this behalf, or where not such authority is so appointed, the head of the department;
(h) "trade union" means a trade union for the time being registered under the Industrial Relations Ordinance, 1969 (XXIII of 1969).
(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or reward."
6. In our view as the petitioner claims violation of Standing Orders 12, to maintain an application under section 25-A of I.R.O., 1969, he must be a workman under the definition in the Standing Orders Ordinance, 1968 and the definition of workman in section 2 (xxviii) of I.R.O., 1969 is not applicable.
This view has been taken by a Division Bench of this Court in the case reported in 1983 PLC 509. We also subscribe to this view in order that an employee should be "workman" for the purpose of the 1968 Ordinance, the nature of his work must be either manual whether skilled or unskilled, or clerical. In this connection pertinent observations made by a Division Bench of Lahore High Court in a case of Chairman Brooke Bond v. General Secretary Union PLD 1969 Lah. 717 are reproduced here:- "A "workman" is employed in an industrial or commercial establishment to do skilled or unskilled work which is manual or clerical. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. Both the manual and clerical work in the sense of these terms are used here cannotes that is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control, and supervision in discharging the same.
The true nature of duties performed by the employee in the determining factor in ascertaining if he was workman or not within this definition. In case the manual work forms only a small and an axillary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register handling the foreign exchange work of foreign customers he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."
7. In the instant case, the petitioner applied as a probationary officer in the respondent-Bank vide his application dated 7-5-1965. He was selected for training as a probationary officer by the respondent. He was confirmed as an officer w.e.f. 16-6-1965, that is, from the date of his appointment. He was posted as Manager P.I.A. Branch of the respondent-Bank and he used to handle the foreign exchange work of foreign customers and also handling foreign exchange independently. The petitioner in his cross-examination admitted that he was dealing with this branch or booth independently and with no subordination. He also admitted in his cross- examination that he was granted power-of-attorney which he was holding since 1965. According to the petitioner power-of-attorney was granted by the Bank to him in 1965 before he was posted as Manager of P.I.A. Branch on booth of the respondent-Bank in the year 1972 and as such he could be assumed to be an experienced officer of the respondent-Bank capable of exercising managerial and administrative functions. He was the holder of power-of-attorney on behalf of the respondent-Bank to exercise certain functions as an officer on its behalf which could hardly be understood as functions of purely clerical nature. It may be noted that the respondent No. 3 is a bank and all its functions have to be performed through a Board of Directors whether individually or collectively and accordingly be Article 115 of the Articles of Association certain of the powers were to be delegated. It is pertinent to reproduce Article 115(3) of the Articles of Association:- "The directors may at any time, and from time to time, by power of attorney under the seal, appoint any person to be the attorney of the company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these presents), and for such period and subject to such conditions, as the director may from time to time think fit and any such appointment may (if the directors think fit) be made any local boards established as aforesaid, or in favour of any company, or of the members directors, nominees or managers of any company or firm, or otherwise in favour of any fluctuating body of person whether nominated directly or indirectly by the directors, or any such power-of-attorney may contain such provisions for the protection or convenience of persons dealing with such attorneys as the directors think fit."
We are of the view that these powers could not be exercised by a subordinate or a clerk or a "workman" as defined in the Ordinance.
8. Mr. All Amjad took us through the evidence to contend that the main work of the petitioner was of a clerical nature. A submission was made that the nature of the duties of the petitioner as shown from the evidence on record may be seen to find out whether the concerned employee was a workman. There is no dispute about the law laid down by the superior Courts in such cases. For an employee in an industry or commercial establishment to be a workman within the definition contained in section 2 of Industrial and Commercial (Standing Orders) Ordinance, 1968, it is manifest that he must be employed to do skilled or unskilled work or clerical work. If the work done by an employee is not of such a nature would not be a "workman". It is not disputed that the petitioner at the time of termination of his services was working as Manager of the P.I.A. Branch or booth of the respondent-Bank and further a power-of-attorney had been given to him by the Bank as far back as 1965. The said power-of-attorney entitled the petitioner to perform a number of managerial and administrative acts and generally to act on behalf of the respondent-Bank. Some of these acts were authorised to be done by the petitioner jointly with another attorney and others by him individually. Looking to the wide powers conferred upon him by the aforesaid power-of- attorney it is clear that the petitioner was empowered to do important administrative and managerial functions which are wholly outside the ambit of a workman employed to do manual or clerical functions. In our view, the concurrent finding of the Labour Court and the Labour Appellate Tribunal is based on evidence. We see no reason to interfere with such concurrent finding in this Constitutional Petition.
9. We are also in agreement with judgment of D.B. Of this Court reported in PLD 1982 Kar.
713. In this case the burden was on the respondent-Bank to prove that he was not a workman and this burden was discharged. The D.B. Authority lends support to the view that we have taken that looking to the duties which the petitioner was required to perform and his status, he cannot be considered to be a "workman" for the purpose of the said Ordinances.
10. The upshot of the above discussion is that this petition fails. We accordingly dismiss the same but the parties will have to bear their own costs.
Petition rejected.