This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order dated 19-3-1988 of the Punjab Labour Court No, 3, Lahore at Ferozewala, and the order dated 7-6-1988 of the Punjab Labour Appellate Tribunal, Lahore, whereby respondent No, 3 has been reinstated with back benefits.
2. Briefly, the facts are that the petitioner-factory is the Unit of the Federal Chemical and Ceramics Corporation Limited. Respondent No, 3 was working as a Senior Foreman (Civil) from 1-7-1982 in the establishment of the petitioner and was drawing wages of Rs,1,833 per month. The services of respondent No, 3 were terminated by the Managing Director of the petitioner establishment vide letter dated 17-11-1986 (Exh. P/1) being no longer required. Respondent No, 3 moved a petition under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for his reinstatement. The petitioner contested the petition and took a preliminary objection that respondent No, 3 being Supervisor-cum-Officer and drawing wages of Rs,1,833 per month was not a workman under the Ordinance or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and therefore, respondent No,3 could not the jurisdiction of the Labour Court.
3. The learned Presiding Officer of the Punjab Labour Court No, 3, Lahore at Ferozewala, after appreciating the evidence produced by the parties inter alia observed that "evidence shows that the petitioner used to supervise the construction work done by the Labourers of the contractor. He used to demarcate in accordance with the plans supplied by the immediate boss and used to check the work in accordance with the bill supplied by the contractor. No employee was working under him nor he was in a position to appoint or dismiss any worker. He was working in supervising capacity without any power of hire and fire". He, therefore, took the view that the mere fact that respondent No, 3 was performing the supervisory duty will not oust him from the definition of workman as he had no power of hire and fire. Consequently, the Punjab Labour Court vide its order dated 19-3-1988, accepted the petition of respondent No, 3 and reinstated him with all the back benefits.
4. The petitioner filed an appeal against the aforesaid order before the Punjab Labour Appellate Tribunal, Lahore, who dismissed the appeal of the petitioner, holding that the order of termination was violative of the provisions of Standing Order 12(3).
5. Mr. Mahmood Zaman, learned counsel for the petitioner, contended that the Courts below have misconstrued the definition of 'workman' as given under section 2(xxviii) of the Ordinance or the Standing Order 2(i). Relying on Muhammad Sadiq v. Punjab Labour Court No, 1 PLD 1988 SC 633, it was contended that the real test for determining whether a person falls within the ambit of definition of 'workman' depends on nature of duties performed by him. Mr. Mahmood Zaman argued that, in the instant case, respondent No, 3 was admittedly working in a supervisory capacity and, therefore, the mere fact that he had no power of hire and fire would not have the effect of including him in the category of workers as defined in the Ordinance or the Standing Orders.
6. Mr. Muhammad Zaman Qureshi, learned counsel for respondent No, 3 argued that the nature of duties of respondent No, 3 were that of an Overseer/Sub-Engineer and he was, therefore, a permanent worker as defined in the Ordinance or the Standing Orders and competently invoked the jurisdiction of the Labour Court under section 25-A of the Ordinance. Mr. Qureshi also referred to the evidence of the parties to contend that the petitioner was a worker and a concurrent finding of fact recorded by the Labour Court and the Punjab Labour Appellate Tribunal on this issue are not liable to challenge in writ jurisdiction. Reliance was placed on Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani PLD 1975 Kar. 342, to contend that an employee playing a second fiddle could not be considered to be employed in supervisory or managerial capacity. This judgment was maintained by the Supreme Court in Dost Muhammad Cotton Mills Ltd., Karachi v.
Muhammad Abdul Ghani 1979 SC M R 204, wherein it was held that the Chief Accountant in the said establishment was a 'workman' within the definition of the Standing Orders, as per duties performed by him and for the reason that he had no supervisory functions to perform at all but was merely required to act on the instructions from another person who had been given full charge of the Accounts Section.
7. In Abdul Ghaffar v. Karachi Shipyard and Engineering Works Limited 1987 P 1, C 697, the Division Bench of the Sindh High Court expressed the view that in order to judge whether an employee is a 'workman', his superiority of status or his having supervisory power in relation to his subordinate staff are not the material consideration. The question whether one is a 'workman' depends upon whether one does skilled or unskilled, manual or clerical work. In Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal, Lahore PLD 1979 Lah. 415, the learned Single Bench of this Court, after exhaustive examination of the case-law cited before him expressed the view that the definition of 'worker' and 'workman' in section 2(xxviii) of the Ordinance and section 2(i) of the Standing Orders are substantially different. It was held that the definition of worker' in the Ordinance is more comprehensive and includes all persons other than the employer.
To the same effect is the pronuncement by the Supreme Court in Brooke Bond (Pakistan) Ltd. v.
Conciliator PLD 1977 SC 237.
8. In Rehmat Ali v. The Security Papers Ltd. PLD 1982 Karachi 913, it was held with reference to section 2(i) of the Standing Orders and section 2(xxviii) of the Ordinance:-- " the words 'any manual' and 'work' employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and therefore, they will cover a person, who performs any manual work while discharging his manual work, provided he belongs to a labour class. In our view the question, whether a person predominantly performs a manual work, or that manual work is incidental to his main work will be relevant when the question of consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2(xxviii) of the I.R.O., the managerial staff of the person who supervises that work of others and draws monthly salary of Rs,800 are excluded from the ambit of the definition of 'worker' and `workman' given in the above provision."
9. In General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik PLD 1986 SC 103, it was held: -- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. 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."
10. The following quotation from the case of General Manager, Hotel Intercontinental, Lahore (supra) may also be referred with advantage:-- "A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of 'workman'. The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of 'employer' then the law would nave simply stated so and the qualifications regarding the nature of work mentioned in the definition of 'workman', namely, 'skilled or unskilled, manual or clerical labour' need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term 'workman' without having to resort to the exceptions."
11. In Muhammad Sadiq v. Punjab Labour Court No, 1 PLD 1988 SC 633, the Supreme Court after considering its ruling in Ganga R. Madhani v. Standard Bank Ltd. 1985 SCMR 1511 and Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 172, reiterated its earlier view that "the real test for determining whether a person falls within the definition of 'workman' depends on the duties performed by him".
12. Having considered the case-law discussed above, the real test in determining the status of an employee would not be his designation simpliciter, but his main duties and not those incidental thereto or having minor or insignificant importance. An employee would become a workman only if he is employed to work in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical job for hire or reward.
13. Following the test laid down in General Manager, Hotel Intercontinental, Lahore (supra), which is followed in the subsequent pronouncements of the Supreme Court, in order to determine whether or not respondent No, 3 was a 'workman', it is to be seen what nature of duties were being performed by him at the relevant time.
14. The Labour Court, after appreciating the evidence on record, recorded a finding of fact that respondent No, 3 used to supervise the construction done by the labourers of the contractor. This being so, the mere fact that no employees of the petitioner's establishment were working under him or he was not in a position to appoint or dismiss any worker, would not oust him from the definition of a `workman'. The Labour Court has, however, misread the evidence by saying that no employee was working under respondent No,
3. According to the evidence of Shakeel Ahmad (R.W.1), a mason and a helper were working under respondent No, 3, who used to get the repair/construction work completed by them.
15. The Labour Appellate Tribunal, after re-appreciating the evidence on record, recorded a finding of fact that the duty of respondent No, 3 was to supervise the work done by the contractor. Learned Chairman of the Tribunal, however, took the view that the persons, whose work respondent No, 3 used to supervise, were not the employees of the petitioner herein, but that of the contractor and, therefore, his duty was only to see that the employees of the contractor were doing the work properly and upto the mark. Notwithstanding this finding, contradictory observations were made in the judgment that respondent No, 3 had no supervisory powers over the employees of the contractor. This finding is based on no evidence on record. In any event, it is wholly immaterial, whether respondent No, 3 was supervising the work of the petitioner or that of the contractor in determining his status as a 'workman'. Having regard to the facts of the present case and the evidence on record, which I have perused with the asistance of learned counsel for the parties, there is great force in the submission of learned counsel for the petitioner that measurement of the work itself was a supervisory job in the instant case, which could not be performed by a worker.
According to the nature of duties performed by respondent No, 3, he was predominantly working in supervisory capacity and, therefore, the mere measurement work as an ancillary job, would not bring him within the ambit of `worker' or 'workman' as defined in the Standing Orders or the Ordinance.
In view of the foregoing discussion, the impugned orders of the Punjab Labour Court No, 3 and the Punjab Labour Appellate Tribunal are hereby declared as without lawful authority and of no legal effect. The writ petition is accepted with costs.