This is an appeal directed against the decision dated 28-3-1987 recorded by learned Presiding Officer, Punjab Labour Court No,6, Rawalpindi whereby the grievance petition of the respondents for recovery of consolidated overtime was accepted.
2. Two points have been argued before me which are that the respondents are not covered by the definition of 'workman' and that they were not entitled to the consolidated overtime.
3. So far as the point of workman is concerned learned counsel for the appellants has argued that since the respondents had gone to the labour Court onus was upon them to prove that they were covered by the definition of `workman'. The point that the onus was upon the respondents was not raised before the learned lower Court and for the first time cannot be raised in this appeal. No doubt, a person who seeks jurisdiction of a Labour Court has to show that he is covered by the definition of workman, but the case of the appellants before the learned lower Court was that the respondents fell in exception 2(xxviii) of Industrial Relations Ordinance, 1969. A party who wishes to, apply an exception, the onus is upon him to prove that the exception is attracted. According to the definition of workman given in section 2(xxviii) of Industrial Relations Ordinance, 1969 every person is a workman who is not covered by the definition of 'employer'. This is not the case of the appellant that according to the nature and duties of the respondents they are employers. Rather the case of the appellant is that the respondent performed supervisory duties, therefore, they stand ousted from the definition of 'workman'. So the onus was upon the appellant to prove that the respondents fall in exception (b)(xxviii) Industrial Relations Ordinance, 1969. Now it is to be seen whether the appellant succeeded in proving that the respondents were ousted from the definition of workman.
Learned counsel for the appellant has made reference to the statement of RW-3 and has argued that the respondents stand ousted from the definition of `workman'. Dost Muhammad deposed that the respondents had number of subordinates under them ranging from 10 to 42 and that they supervised their working. He further deposed that if a subordinate was unable to do a thing, respondents did it with their own hands. In cross-examination he admitted that the respondents could neither sanction leave nor issue charge-sheet nor suspend any person. He also admitted that the respondents examined Tappoting and tuning of the engine personally. RW-1 deposed that the respondents looked after the work of subordinates and could get them removed from service by making reports against them. Since no documentary evidence was produced with regard to the supervisory duties alleged to have been performed by the respondents, the learned lower Court rightly discarded oral evidence produced by the appellant in this respect and rightly accepted the evidence of the respondents. No report made by the respondents with regard to any worker for taking action and no application for leave sanctioned by them is on the record. Rather RW-3 admitted that the respondents neither could sanction leave nor issue charge-sheet nor suspend any person. Since no such documentary evidence was produced, this is wrong so that the respondents had supervisory powers. The mere fact that their pay exceeded Rs,800 was not sufficient inasmuch as there are two conditions given in exception (b) to section 2(xxviii) which are that the employee should have wages more than Rs,800 per month and performed supervisory duties. Since the appellant failed to establish that the respondents had supervisory duties, the mere fact that their wages are more than 800 was not sufficient.
4. Admittedly the respondents were getting consolidated overtime when they were Chargemen/Assistant Chargemen and sub-engineers. The consolidated overtime was not allowed when they were re-designated as Assistant Foremen. Previously the case was remanded to learned lower Court with the direction that after allowing last opportunity to produce evidence on the points, if the posts of Assistant Foremen pre-existed the re-designation of the posts of Chargeman/ Assistant Chargeman into. Foreman and if so whether or not right of consolidated overtime was attached to this or according to the rules Assistant Foreman could claim consolidated overtime, or not. But the learned lower Court as well as the learned counsel for the appellants have admitted that the parties did not avail of this opportunity and did not produce relevant evidence on the points. There are two approaches to the case. One is that if condition of claiming consolidated overtime was attached to the post of Assistant Foremen before the respondents were designated as such, they were entitled to it. The other thing is that if the emoluments and nature of duties of the respondents were changed by the re-designation as Assistant Foreman and there was no provision that an Assistant Foreman could claim consolidated overtime, the respondents could not claim the same. This is an admitted fact that pay scale of the respondents and nature of their duties remained the same after they were re-designated as Assistant Foremen. Since it was so then obviously re-designation was only a device to refuse the respondents the benefit of consolidated overtime. The terms and conditions of service of the respondents could not he changed without their consent or without taking their option. The respondents gained nothing by re-designation but lost the right of getting the consolidated overtime. This right could not be refused to them by any means whatsoever without their consent.
Of course, if they had been placed in higher scales and nature of duties had been different from the ones which they were performing as chargeman and according to the rules an Assistant Foreman could not have claimed consolidated overtime, the respondents could not have been justified in claiming the same. They performed the same duties and remained in the same scale and the only difference is that the name of their posts now is Assistant Foreman and previously was Assistant chargeman, and sub-engineer. This change cannot deprive the respondents of their right which they were enjoying before their posts were re-designated. No reason was given for the re-designation of the posts. It is thus clear that the only motive to change the designation was to deprive the respondents of their right, of consolidated overtime. The learned lower Court thus rightly accepted the grievance petition of the respondents.
5. As a result there being no force in the appeal the same is dismissed.