1. Bashir A. Malik petitioner joined service with the Hotel Inter-continental, Lahore, as a Shift Engineer in 1967. He was appointed on a salary of Rs. 350 plus dearness and other allowances. He was served with a notice on 19th August 1970, to show cause in writing why disciplinary action should not be taken against him as be was found sleeping on duty in the emergency generator room on 18th August 1970, at 2 a.m. He was required to submit the explanation so as to reach the Personnel Manager by the 21st of the same month. He was also suspended by the same order.
2. His explanation was not found satisfactory and he was held to be guilty of- "Misconduct of neglect of work within the meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, section 15(3), clause (i) and, therefore, you are charge-sheeted accordingly."
3. On the 31st August 1970, he was informed that he has been found guilty of misconduct and ho was dismissed from service-- "From the close of work on 31st August 1970."
4. The petitioner moved the Chairman, Industrial Court, Lahore, on the 29th September 1970, under section 18 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, praying that the order of dismissal be set aside as illegal and the applicant be ordered to be re- Instated.
5. The Inter-continental Hotel contested the case on a number of grounds including- "3. That the petitioner is not a workman within the provisions of section 2(i) and, therefore, the present petition is not competent and maintainable."
6. The learned Labour Court (Northern Zone), Lahore, adjudicated upon this ground as a preliminary issue and found that- "He could not be said to be a workman but rather his duty is to supervise the work of workmen. We, therefore, find that the petitioner, is not a workman."
7. The petition was consequently dismissed. The petitioner has moved this Court under Article 98 of the abrogated Constitution praying that this Court do- "(i) declare that the order dated 6-3-1972 passed by the Punjab Labour Court, Northern Zone, Lahore, is illegal, without lawful authority and of no legal effect and that the petitioner is a "workman" within the meaning of West Pakistan Ordinance VI of 1968, and
(ii) direct respondent No. 1 to exercise this jurisdiction and entertain and try the complaint of the petitioner made to that Court."
8. The duties which, according to the petitioner, a Shift Engineer has to perform with his own hands are detailed in Annexure IX to the petition. These Include a large number of items in which a Shift Engineer is supposed to use his own hands and skill for the purpose of maintaining and repairing defects In various machines installed in the hotel including automatic air-conditioning plants, highly sophisticated automatic electronic control systems connected to It, automatic laundry machines, fully automatic kitchen equipment etc. etc. Annexure 1X-A is a list of different jobs performed by the petitioner in his capacity as Night Shift Engineer on seven dates taken at random.
9. Annexure IX-B is another such document. Annexure X contains the written instructions issued on various dates for the petitioner and other engineers with regard to their work. All these show that a large number of engineering chores have to be done by a Shift Engineer with his own hands. I will just mention two- "(1) The Shift Engineer will personally clean the Reheat & Cooling Coils of the A. C. Units with hot water mixed with teepol, will blow clean coil with air pressure (Laundry Compressor). For cleaning the coils you have to remove the side top and bottom pane is for accessibility."
10. This task involves a large number of operations, which are listed in the instructions given in Annexure X.
11. "(2) Pl. concentrate on A. C. I. tonight. There are three dry nitrogen cyclinders in boiler room, two are partially full and third is full. Use this air for cleaning the coils. Wash the cooling and the reheat coils at least 3 times each from both rattle sides with hot water taken from A/C's hot water system Run labour the hot water pump and then wash them completely. See that the spacer plate between cooling and reheat coils is taken off and then coils washed from either side. Tomorrow you will take A. C. 2 and day after A. C.
3. A. C. 4 has been done so next night you will do A. C. 5 and then A. C. 6.
12. Pl. note that the hot water pressure is very enough, to clean the coils if done 3 or 4 times. Above will be done by S. E. himself."
13. The respondent bas not cared to file a written statement and the statement of facts contained in these annexures has, therefore, remained uncontroverted and has to be taken as correct. With a view to satisfying myself as to the authenticity of these documents, I asked Mr. Wasim Sajjad, learned counsel for the hotel, to verify from the administration and to inform me If these documents are genuine. He has not questioned the authenticity of these documents but has chosen to say that these occasions are few and far between.
14. Even, therefore, if the criterion adopted by the learned Tribunal was to be accepted as correct, i.e. an employee can be designated as a workman within the four corners of Ordinance VI of 1968 only if he performs manual labour there is no doubt that the petitioner, in the discharge 'of his duties was required to do manual work by hits own hands not occasionally but regularly. The question of relying upon any oral evidence In this case for the determination of the nature of the duties of the petitioner does just not arise in the face ofthe annexures to the petition referred to above the authenticity of which is undoubted.
15. Even otherwise it need be hardly re-iterated that sophisticated machines having automatic electronic controls such as are used in the Inter-continental Hotel require personal attention and operation by a qualified engineer and cannot be left to mere unqualified workmen.
16. I may in this connection also advert to the fact that the petitioner has been dismissed from service for neglect of duty amounting to misconduct and the only allegation is that he was sleeping in the emergency generator room. If, as the Hotel Inter-continental would have us believe, the petitioner does not have to personally attend to the machinery, the mere fact that he was found sleeping at a particular moment would not constitute misconduct or neglect of duty because in case any workman found a particular task to be beyond his capabilities he could have come and awakened the petitioner and sought his help.
17. This allegation by itself goes a long way to prove that the petitioner has to constantly look after the machinery himself and perform tasks with his own hands, which cannot be entrusted to others.
18. Section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 defines workman as-- " `Workman' means any person employed in any industrial or commercial establishment to do nay skilled or unskilled manual or clerical labour for hire or reward."
19. The definition in this section does not contain any reference to supervisory capacity. Wherever the Legislature wanted exclude people in supervisory capacity from tile pale of workman it specifically said so as it has done in the case of West Pakistan Trade Unions Ordinance V of 1968 where persons employed managerial or Administrative capacity have been excluded fro the definition. In the Industrial Relation Ordinance XXIII o 1969 "any person responsible for the management supervision and control of the establishment 'has been excluded from the definition of a "worker" and "workman". The mere fact therefore, that a person who is otherwise covered by the definition of "workman" as given in Ordinance VI of 1968. also performs supervisory function would not operate to exclude him from the definition of"workman---.
20. It Is nobody's case that tine Hotel Inter-continental is not an Industrial or commercial establishment. There is also no dispute about the fact that the work done by the petitioner is "skilled" in nature. It 13 also not denied-that the work done by him is not clerical. The word "manual" has been defined at page 1202 of the Shorter Oxford English Dictionary, Vol. I, 1956 Edition as- "Of, pertaining to or done with the hands. Now asp. Of (physical) labour."
21. The word "labour" has been defined in the book at page 1096 as- "(1) Bodily or mental toil, esp. when painful or compulsory.
(2) Spec. In mod. use t Physical exertion directed to the supply of the material wants of the community.
(3) An instance of bodily or mental toil."
22. Manual labour, therefore, would mean something done with t hands, which would include physical labour also but as labour also includes mental toil, any work done with tine hands which requires mental toil also would not be outside the scope of t expression "manual labour". In the present case beside clerical work that be has to do in the shape of the preparation of detailed reports of the duties performed by him during his shit, the petitioner had to do engineering work with Ws hands which does require physical as well as mental troll.
23. It is, therefore, not correct to say that the petitioner is not a "workman's within the definition given In Ordinance VI.
24. Unfortunately the word "engineer" in our country seems to continue to give the impression to a layman of a highly placed officer supervising skilled and unskilled labour staid doing nothing with his own hands. Such an Impression is a ratio of the day -of extremely simple machines, which could be handled by an skilled worker and moreover so occasional Supervision by a qualified engineer was enough. The thing now have changed with the advance of science, automation and sophistication are `reverberating notes which necessitate constant attention by a qualified engineer and he is, therefore, no longer the supervisor officer of the forties when it was a white- collar job.
25. The order bf the learned Labour Court is, therefore, without lawful authority and of no legal effect in so far as he has declined to exercise jurisdiction to favour of a workman on the illegal supposition that he does not fail in that category.
26. This petition is accepted with costs and the Labour Court is directed to produce with the determination of the other points involved in the petition before him.