DECISION This appeal is directed against the order of learned Presiding Officer, Sindh Labour Court No, II at Karachi, dated 26-10-1985, whereby he dismissed the grievance petition of the appellant.
2. The brief facts of the case are that the appellant was admittedly working as Senior Soap Boiling Technician with the respondents when his services were terminated, vide letter, dated 12-2-1985. He gave grievance notice to the respondents and being dissatisfied with the reply, filed grievance petition before the Labour Court challenging the legality of the impugned order. It was contended by the appellant that he had been removed because he was taking interest in the trade union activities and that the persons, junior to him, had been retained in service while his services had been terminated. The respondents resisted the petition on the ground that due to re-organization as the post of Senior Soap Boiling Technician was found to he surplus, therefore, the appellant who was incumbent of the post, was retrenched from the service. They further raised the plea that the appellant was not a workman as he was drawing salary of Rs,2,332.08 per month and was doing the supervisory work as Incharge of the Soap Panshed Section wherein 30 persons were working under him.
3. I have heard Mr. Shafiq Qureshi, learned Advocate for the appellant and Mr. S. Qamaruddin Hassan, learned counsel on behalf of the respondents.
4. The learned Labour Court came to the conclusion that the appellant was not a workman, but, was performing supervisory functions. Messrs Naser Waheed and Ghalib Hussain have been examined by the respondents in support of their contentions. Naser Waheed is the Executive Personnel and the Manager of the respondent factory. In para. 10 of his affidavit-in-evidence he has stated that the appellant prior to his retrenchment from service was Senior Soap Boiling Technician performing supervisory functions. He was also invested with the power to perform certain managerial and/or administrative functions such as granting short leave, assigning overtime work, signing overtime slips etc. In the cross-examination, he has admitted that he sits in the Establishment Office of the respondents and does not possess any knowledge in soap manufacturing. He has further admitted that the appellant was not informed in writing of his duties as no such practice existed in the establishment. Ghalib Hussain is also an Administrative Officer of the respondents. He has produced Annexure B-16 which is a list containing the names of persons, including the appellant, who had been entrusted powers to sign sick report; sanction/sign short leave passes; and sign attendance and overtime forms. He also produced other documents which are leave applications of some workers which were forwarded and recommended by the appellant to the Production Executive. In the cross-examination, he has admitted that the persons named in Exh. R-16/A were authorised to sign the leave passes. He has denied the suggestion that they were not authorised to sanction the leave.
5. Exh. R-16 is an inter-office communication addressed to the Director and Executive Operation Panshed Section which reads as under:-- "Enclosed herewith please find the specimen signatures of authorised persons of Panshed. The aforesaid persons mentioned in the attached list only are authorised to sanction sick report, short leave passes, attendance and overtime form. Accordingly in future only the said signatures are accepted and valid."
The list is Exh. R-16/A which reads-- "Following persons are authorised to sign the sick report, leave passes, attendance and overtime forms."
If these two documents are read together, the authorised persons including the appellant were only authorised to sign the passes and sick leave applications, but, they were not authorised to sanction the leave. If they were authorised to sanction leave, the appellant would not have forwarded the leave applications for further action to the Production Executive. Such applications have been produced by Ghalib Hussain as Exh. R-18 to R-25. This fact is also clear from Exh. R-16/B which appears to be typed copy of R-16/A. From these documents produced by the respondents, the only power vested in the appellant was to forward the leave application to higher authorities under his signatures and to sign passes or attendance or leave register.
6. The appellant in his affidavit-in-evidence in para. 6 has stated that he had no supervisory or managerial or administrative functions and powers and that due to high skill knowledge, experience and seniority he used to personally see the chemical materials put in the Pans in quantity, proper maintaining of the boiling temperature and to do all ancillary and allied work for achieving neat soap up to the standard and in which process being vast there had to be other junior soap boiling technicians, operators and other skilled and unskilled workers required to work as a team. He has further stated that he had no power to charge-sheet, suspend, terminate, appoint, sanction overtime payment or any other such powers which were vested in the Executives of the Soap Pan Shed Section and other officers. He has further stated that the person who held overall administrative managerial and supervisory duties and functions in the shed was the Executive Pan Shed. In his cross-examination, it has come on record that there were two shifts in the factory and he used to work in 'A' shift where he was senior most person. He has further admitted that it was his duty to get the said work done in the particular shift from the other persons and he used to write detailed report in the log book. He had denied the suggestion that he used to check the report of Soap Boiling Technician who used to write the report of 'B' shift.
7. From the evidence on record as discussed above, it would be clear that the appellant was Incharge of the 'shift' where he used to get the work done through technicians, skilled and unskilled workers under him and because of high skill, knowledge and experience, it was his duty to see that the process of manufacturing of soap was done in accordance with the technique and standard laid down for manufacturing of the soap. He did either no manual work at all or may he doing little manual work, but, mostly his duty was to sec that the work was done technically in correct manner.
He did not have any power to hire or fire any person or even to grant leave though he did the work of a little supervisory nature of forwarding certain applications or signing leave passes, attendance register etc. The question that now requires consideration is whether such a person can be considered as a 'workman'?
8. In the case of Rehmat Ali v. Security Papers Ltd. PLD 1982 Kar. 913 at page 935, a Division Bench of Sindh High Court has observed that 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 duties irrespective of the quantum of such 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 for 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 I.R.O."
9. In the above case, the question for consideration before their Lordships was whether a chowkidar was a workman who was practically doing no manual work, and their Lordships held that the chowkidar was a workman within the definition given in section 2(xxviii) of I.R.O.
10. In the case of Dost Muhammad Cotton Mills v. Abdul Ghani and others PLD 1975 Kar. 342, a learned single Judge of Karachi High Court has observed that the respondent, if he was to be held to occupy a position of supervision or control, could not be termed to be supervising or controlling the entire establishment but only a branch or department of this establishment and for such reason could not be said to be covered by the definition of 'employer' as stated in section 2(c)(iii) of the Ordinance." In that case the question for consideration was whether the Chief Accountant who used to take instructions from one Farid Khan who was full Incharge of section was a workman or not. His Lordship has considered him as a 'workman'.
11. This decision of the High Court of Sindh was challenged before the Supreme Court which is reported in 1979 SCMR 304. Their Lordships of the Supreme Court also upheld the view of the High Court and held that "the definition of workman under section 2 of the Standing Orders Ordinance included Chief Accountant drawing monthly salary of Rs,1,050 and acting under instructions of Incharge of Accounts Section of Company."
12. In the case of Muhammad Aqil v. Sindh Labour Appellate Tribunal PLD 1978 Karachi 649, the Division Bench of Karachi High Court consisting of late Tufail Ali A. Rehman, C.J. and Fakhruddin Ebrahim, J., have observed that a "person in order to come within definition of 'employer' need not be incharge, supervisor or running whole establishment but may he an Incharge of a part of the establishment."
13. The definition of 'workman' has been examined at length in the case of General Manager, Hotel Intercontinental Lahore v. Bashir A.Malik etc. PLD 1986 SC 103. Their Lordships of the Supreme Court have observed that the "main feature, pith and substance of employee's employment must he manual or clerical in order to attract definition of 'workman' under the Standing Orders Ordinance.
Mere fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to his employment does not bring him within scope of definition of 'workman'.
Nature of work mainly done by an employee and not his designation, would be essential, fundamental and conclusive consideration to determine his status as to whether or not he is a workman." The case of Dost Muhammad Cotton Mills cited above was also discussed by their Lordships in the case of Hotel Intercontinental and their Lordships were of the view that the view taken in the case that employee was a `workman' on the ground that he did not fall within the category of 'employer' was not a conclusive test. In this case, the question for consideration before their Lordships was whether a Shift Engineer who performed duties including maintenance and rectification of Air-conditioning Plant, Boilers, Laundry equipment, kitchen equipment and to correct any electrical or mechanical defects occurring therein, in emergency, when workmen were unable to do any particular job on account of lack of technical knowledge, employee as Shift Engineer required to do job himself but in ordinary circumstances he had workmen under him through whom he used to get work done in course of his duty, could be considered as a workman. Their Lordships were of the opinion that such an employee cannot be considered as a 'workman'. Their Lordships had also referred to the case of the workers of Bata Shoes Co. v. Bata Shoes Co. Ltd. and another 1971 PLC 1 wherein the Hon'ble Supreme Court held that "a foreman whose duties mainly consisted of supervision and management in a factory was not a 'workman', as the mere fact that he had to do something by his own hands by way of checking or testing work done by other workmen did not make his work manual within the meaning of this clause."
14. If the law discussed above is applied to the case of the appellant, it would be clear that he was not doing any manual or clerical work. His main duty was only to get the work done through the workmen working under him and to see that the work done by them was technically correct and to rectify any mistake that may be committed by them. The mere fact that he was writing reports would not make his work clerical nor the fact that he opened the kettles sometimes, would make his work manual. Admittedly he is supervisor of the part of the establishment. Under the circumstances, in my opinion, the appellant does not fall within the definition of 'workman' as defined in the Standing Orders Ordinance as he does not do any manual or clerical work nor does he fall within the definition of workman under section 2(xxviii) of I.R.O., as he is excluded under sub- clause (b) of this clause.
15. In view of my findings that the appellant is not a workman, the proceedings under I.R.O. 1969, are not maintainable, therefore, I need not discuss the other points raised by the appellant. Appeal is accordingly dismissed.