' Major Riasat All (Retd.) petitioner has instituted the title petition under section 25-A of the Industrial Relations Ordinance, 1969, alleging that he joined the Fauji Fertilizer Company Limited at Plant Site Goth Machhi, District, Rahimyarkhan, as purchase officer on 14-10-1984. It was prayed that the job of the petitioner was purely manual and clerical is nature. He had been working under the instructions of Procurement Manager, Resident Manager of the Company and had no power to appoint or terminate any worker. Thus, the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, fully applied to the respondent's company. He performed his duty diligently and possessed an unblemished record of service.
2. It was further pleaded that the respondent terminated the services of the petitioner on 12-2-1987, unlawfully and arbitrarily. No explicit reasons of his termination had been mentioned nor any show- cause notice charge sheet enquiry etc. Had been conducted. It was, therefore, urged that the petitioner's rights had been guaranteed under Standing Order 12(3) of the Ordinance, 1968. The impugned order of termination was, therefore, illegal, mala fide, arbitrary and against the natural justice. The petitioner also served a grievance notice on 22-4-1987, on the respondent by registered post but the same remained unrealized. Having no other alternative, the petitioner instituted the present grievance petition against the respondent, praying his re-instatement in service with full back benefits.
3. This petition was resisted by the respondent; legal objections were raised to the effect that the petitioner was not a worker and therefore, could not legally invoke the jurisdiction of this Court under section 25 of the Industrial Relations Ordinance, 1969. It was further contended that at the time of termination of his services, the petitioner had been working at Lahore and impugned order having been served on the petitioner at Lahore, through Resident Manager, F.F.C. Ltd., this Court lacked the territorial jurisdiction to entertain the petition.
4. On merits, it was urged that the terms and conditions of service of the petitioner stand regulated by the contract of the employment where under his service could lawfully be terminated without assigning any reason. The impugned order of termination, therefore, could not be tainted with any illegality. Finally it was prayed that the petition has no merits and same be dismissed.
5. In order to substantiate their respective contentions the parties have led oral as well as documentary evidence. Major Riasat Ali petitioner has appeared as P.W.1 and reiterated his claim.
The documents Ex.P.1 to Ex.P.10 were also tendered in evidence. On the other hand, Abdul Majeed R.W.1 and Major Ihsan Qadeer Tariq, R.W.2 have appeared on behalf of the respondent. Documents Ex.R.1 to Ex.R.13 have also been produced in evidence.
6. The learned counsel for the parties have addressed detailed arguments. Before I deal the case on merits, I would like to dispose of legal objection relating to the territorial jurisdiction of this Court to adjudicate upon the controversy in dispute. The preliminary objection precisely is that the petitioner at the time of the termination of his service was working at Lahore and the order of termination was served on him at Lahore through the Resident Manager of F.F.C. Ltd., Lahore and the order of termination was issued by the respondent from Rawalpindi, where the Head Office of the Company had been situated. Reliance has been placed on Ex.R.1 i,e, the joining report of the petitioner dated 29-1-1987 at Lahore. This Court, therefore, lacked jurisdiction.
7. On the other hand, it is urged that no transfer order of the petitioner had been issued nor the charge handed over by the petitioner at Goth Machhi Sadiqabad District Rahimyarkhan. It is further contended that the petitioner was only attached with Marketing Division, Lahore. The petitioner was not given any duty at Lahore and eventually his services were terminated on 18-2-1987. It is, therefore, urged that under the circumstances the petitioner essentially continued to remain posted at Goth Machhi, Sadiqabad, District, Rahimyarkhan, therefore, this Court possessed territorial jurisdiction under law.
8. I have fully attended to the said contentions and the material placed on record. The respondent has failed to bring on record any documentary proof indicating that the petitioner had actually relinquished charge at Sadiqabad. The said order shows that he had been merely attached with Marketing Division, Lahore. The petitioner being a Purchase Officer, must have in his custody of valuable record etc. It is strange that he was not directed to hand over the charge. The learned counsel for the respondent has failed to convince me that the petitioner had been transferred to Lahore and in fact working there when the impugned order of his termination was passed. The contention of the learned counsel for the petitioner in the circumstances appears to be forceful.
Resultantly, the said legal objection is hereby rejected.
9. Now reverting to the merits of the case, the petitioner has alleged violation of Standing Order 12(3) of Ordinance, 1968, and in order to maintain the petition under section 25-A of the I.R.O. 1969, he must be a workman under the definition of workman in Section 2(1) of the said Ordinance, which provides as under:- "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.
10. In case Hotel Intercontinental, Lahore v. Bashir A.Malik etc. PLD 1986 SC 103, the Honourable Supreme Court has laid down the following test for determining the question whether an employee is a workman within the meaning of various statutes in the field of Labour Legislation.
' The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted.
11. Now, I proceed to examine the nature of work done by the petitioner employee, in the light of the above dictum laid down by the Supreme Court.
12. No documentary proof has been led by the either party in the shape of Duty Roster etc. Of the petitioner. We have, therefore, to examine and analyses the oral evidence on record. The petitioner has deposed that he had been doing manual and clerical work by receiving Requisition, calling quotations, preparing comparative statements. Purchase orders were issued by Procurement Manager, while he would prepare the purchase orders. The bills were paid by the Accounts Department. He would deposit the necessary material purchased by him in the warehouse. He used to count the bags for the supply of Fertilizers etc. In the cross-examination, it was admitted that he had the authority to purchase material valuing at Rs,15,000. He clearly admitted the documents Ex.R.5 to Ex.R.7. The petitioner sanctioned leave of the Typist, purchase Assistant and clerk who worked under him. He also recorded the ACRs of Purchase Assistant for a period of three years. Documents Ex.R.8 to Ex.R.12 stand admitted. In rebuttal Abdul Majeed R.W.1 (Purchase Assistant) has stated that he worked under the control of the petitioner. The petitioner had no clerical job to do. He would prepare the requisition statement and purchase order and petitioner signed the said documents. He categorically stated that the petitioner never counted the bags. He would only see that bags were according to the sample. The petitioner would only go and survey the market. It is interesting to note that the petitioner did not cross-examine this witness on the said point. He has, therefore, indirectly accepted the statement of this witness as for the nature of duty performed by him, is concerned.
14. Major Ihsan Qadir Tariq, R.W.2 is the Purchase Officer. He has emphatically asserted that he had not been performing any manual or clerical duty. He rather performed supervisory duty.
15. From the said discussion, I am convinced that the petitioner controlled Assistant Purchase Officers, typists and clerks. He recorded the Confidential Reports of Assistant Purchase Officer and sanctioned leave to the said subordinate staff. It is thus amply proved that the petitioner had power to control his subordinates. The petitioner has half-heartedly tried to show that he used to do certain manual work by counting the bags, but I am of the view that his main duty was to survey the market, purchase material, collect quotations and send requisition etc. The preparation of comparative statements and getting them typed was ancillary to his main duty. The manual work is that which is done with hand. There is nothing on record to show that petitioner had been doing manual labour. It would not be out of place to observe that petitioner drew basic salary of Rs,2,820 per month. He had been provided with a three bed furnished house at Officer Colony. He also received CAT allowance. He is, therefore, not a workman.
16. While forming the said view, I have also sought guidance from the case of Sultan Masood Tiwana v. General Manager Dawood Hercules Chemicals Ltd. Lahore 1975 PLC 556 (Labour Appellate Tribunal Lahore). In case of Purchase Assistant it was held: ' From the statement of the appellant I find that his duties were to collect quotations from the market about the stores to be purchased and subsequent to the approval of the quotations by the Supervisor to purchase and collect the stores from the sellers. Since in his petition under section 25-A he was claiming a right guaranteed to him under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968, he has first to establish that he is a workman under the said Ordinance. He was dismissed from service on 1-8-1972. At that time section 2(i) of the said Ordinance read as follows: ' A workman means any person employed in any Industrial or Commercial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward."
' The learned counsel for the respondent contended that since the appellant did not do any manual labour in the discharge of his duties he was not a workman within the meanings of the aforementioned definition of workman. According to Stroud's Judicial Dictionary, Labour is defined as manual labour and not manual work. The true meaning of the labour is that which tests a man's muscles and sinews. Since the appellant's duty was merely to collect quotations from the market about the stores to be purchased and after approval of the supervisor to go and purchase the said stores, he clearly does not come wthin the definition of manual labour. He is, therefore, not a workman under the said Ordinance.
17. In case ICI, Pakistan Manufacture Ltd., v. Muhammad Iftikhar Ahmad 1986 PLC 1133 Punjab Labour Appellate Tribunal, Lahore, held that supervisor purchaser was not a workman. It was observed.
"It is thus apparent from the above discussion that the little manual or clerical work which the respondent had to do was either casual or ancillary to his main duties and, therefore, did not bring him in the pale of the definition of workman defined in section 2(i) of the Standing Orders)
Ordinance, 1968 or clause (b) of section 2(xxviii) of the I.R.O.
1969. In view of the fact that the salary of the respondent was Rs,1,800 and that his main duty was supervisory and little clerical work done by him was not the main duty, he was not covered by section 2(xxviii) of Industrial Relations Ordinance, 1969, and section 2(i) of the Standing Orders Ordinance, 1968 and thus the Labour Court had no jurisdiction. The learned lower Court did not go into the details and thus, fell in error in holding the respondent as a workman.
18. In view of my said finding, I need not dilate further. For the foregoing reasons, the petitioner has failed to prove himself a workman. He is, therefore, not competent to invoke the jurisdiction of this Court under section 25-A of the Industrial Relations Ordinance, 1969. In the circumstances, the petition is found without any merit and is hereby dismissed, leaving the parties to bear their own costs.