DECISION This is an appeal against an award of the learned Presiding Officer, Sind Labour Court No. V, Karachi, dated February 20th 1973, whereby the learned Labour Court dismissed the application of the Appellant under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for restoration of his salary of Rs. 250.00 from August 1972. The facts giving rise to the present appeal briefly put are these.
2. The case of the appellant was that he was a permanent workman of Zelin Limited. (hereinafter called the respondent). Mr. Nasir Mirza, herein--after called the appellant) was employed for sale of Electrical Appliances, Motor Batteries, Magnetic Tapes, etc. An agreement was entered into between the appellant and the respondent, which was to be valid for the Financial Year July 1970 to June 1974. Under the said agreement, the appellant was to receive Commission at 10 % on the Net Profits to b: determined in accordance with the agreement, up to Rs. One lac and 5 % on the amount of the Net Profits exceeding Rupees one lac. The respondent agreed to increase the salary by Rs. 250 per month, which was to be deducted from the Commission due and the balance of the Commission to be paid thereafter. The respon--dent also agreed to waive the deduction of the increased salary, if the profit exceeded Rupees one lac and fifty thousand. The appellant's consolidated salary on the date of the agreement was Rs. 725.00 per month, which was increased to Rs. 925.00 under the said agreement. It would be useful to reproduce Paragraph 9 and Paragraph 12 of the agreement. T_ hey run as' under: "9. If, however, you do not achieve the minimum target I.e. 3 times the National Expenses, then the Increase of Rs. 250.OQ per month given in 8 above would automatically stand withdrawn with effect from July 1971 thereby reverting to your previous salary."
"12. This agreement is valid for the Financial Year July 1970 to June 1971."
3. It is stated by the appellant that he formed an Employees' Union in 1972, which was registered by the Registrar of Trade Unions on 29th May 1972. The appellant was a zealous worker of the Union, which was not liked by the respondent. The appellant was also elected General Secre--tary of the Union. The appellant received a letter on 2nd September 1972, intimating that he had not achieved the target mentioned in the agreement due to his negligence. The respondent through that letter withdrew Rs. 250.00 from the salary of the appellant, commencing from August 1972. The case of the appellant was that the increased salary was withdrawn as a result of his Union activities and was also illegal because no show-cause notice was given to him.
4. Mr. Shahani, the learned Representative for the appellant, contended that the learned Presiding Officer of the Labour Court, should not have relied on the definition of "workman" as amended on 10th November 1972, but on the definition of "workman" as it stood on 25th October 1972, when the appellant filed the application under section 34 of the Ordinance. In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. The Court must apply the definition of "workman" as it stood prior to 10th November 1972.
5. The definition of "workman" prior to 10th November 1972 and on the date that the application was filled reads as under: "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment (as a supervisor or) as an apprentice) in an establishment, or industry for hire or reward either directly or through a contractor whether the term of employment be expressed or implied, and for the purpose of, any proceeding under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharged, retren--ched, laid of or otherwise removed from employment In connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of, or removal has led to that dispute.
(Explanation. 'Supervisor' means a worker immediately above the lowest level of workers in an establishment or industry who has super--visory duties but no power to engage or remove, or take any other disciplinary action against another worker by his own authority)."
6. The old definition of "workman" confined to those doing skilled, unskilled, manual or clerical work, has been abolished. It has been simply provided that any person who does not fall within the definition of "employer" is a worker. Some difficulty was felt in the case of persons such as jobbers in Textile Mills, who used to supervise the work of men under them and also repair thread when it was broken. These persons were immediately above the lowest level of workers in Textile Mills. As a number of such persons was quite large and they also did manual work along with supervision, the Legislature in order to give them benefit of the provisions of trial Lap explicitly included them in the definition of "workman'".
7. Employer is defined under section 2(viii) of the Ordinance as under: "Employer" In relation to an establishment, means any person or body of persons, whether incorporated or not, who of which employ workmen in the establishment under a contract of employment and includes:
(a) An heir, successor or; assignee, as the case may be, of such person or body as aforesaid;
(b) Any person responsible for the management, supervision and control of the establishment;
(c) In relation to an establishment run by or under the authority of any department of the Central Government or Provincial Government, the authority appointed in this behalf or, where no authority is so appoint--ed the head of the department;
(d) In relation to an establishment run by or on behalf of a local authority, the officer appointed In this behalf or where no officer is so appointed, the Chief Executive Officer of that authority; Special provision: For the purposes of distinction from the category of "workers" or "workmen" officers and employees of a department of the Central Government or a Provincial Government or a local authority, who belong to the superior managerial, secretarial direc--torial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employers".
(e) In relation to any other establishment, the proprietor of such establi--shment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof."
7. It would appear from alt analysis of the definition of "employer" that even an officer or person who is concerned with the Management of the affairs of the establishment is an employer.
Establishment is defined under sec--tion 2(ix) of the Ordinance to mean "any office, firm, industrial unit, undertak--ing shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service'" If super--visors % ere not included specifically in the definition of "workman", there would have been no difficulty In holding that they were persons concerned with the Management of the establishment. The dictionary meaning of supervision is an act of supervising; inspection and control.
8. It will be a question of fact depending on the nature of duties to be performed whether a person is a supervisor or not. If a person were to per--form duties of a supervisor mere name would not make, any difference, if ire is designated by any other name. The Legislature in order to resolve this difficulty has also explained the word "supervisor" under section 2(xxviii) of this Ordinance. It means "a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but no power to engage or remove or take any other disciplinary action against another worker by his own authority:" What is important to note is that a workman in order to have the benefit of the definition of "workman" must establish that he is immediately above the lowest level of workers in an establishment. It follows, therefore, that all persons who perform supervisory duties cannot be hold to be supervisors. The Legislature has conferred the advantage of the definition of "workman" only on these persons who are immediately above the lowest level of workers in an establishment, but they perform supervisory power.
9. In the light of the definition of "workman" read with the explanation of supervisor, it has to be seen from the evidence led by the parties as to whether the appellant can be said to be a person immediately above the lowest level of workers in the establishment.
10. The only evidence led by the appellant is his own statement in the form of an affidavit. His affidavit is In 13 paragraph. 1n paragraph 1, of his affidavit Mr. Nasir Mirza stated that he was employed by the respondents and performed duties, which involved skilled, unskilled manual and clerical work. In paragraph 2 of his affidavit, he stated that his main "responsibili--ties were selling, demonstrating and delivering of goods, preparation of challan and the bills, correspondence, preparation of reports, and stipulating the work by him daily." In paragraphs 3, 4 and 5, it is stated that the appellant was not concerned with the Management, disciplinary action or any policy matters of the company. In paragraphs 6 and 7, the appellant stated that he was a workman employing the same facilities as allowed to workers. Paragraphs 8, 9, 10 and 11, relate to the increase of Rs. 250.00 in the salary of the appellant and the illegal reduction thereof from his salary.
In Para--graph 12, the appellant stayed that he was suffering' mental agony at d In paragraph 13, he prayed for the "restoration of Rs. 250.00 In his monthly salary with retrospective effect" and further prayed for compen--sation.
11. Mr. Nasir Mirza claimed to be a salesman. It may be mentioned at the very outset that it has been held by the Supreme Court of India in the case of Williamsons (India) Private Limited, 1962 PLC 1401, that salesman cannot be said to a workman as he does not perform any skilled, unskilled, or manual work. The Legislature has, however, now conferred an advantage on workman in the case of persons who are immediately above the lowest level of workers and perform supervisory duties.
It is noteworthy that Mr. Nasir Mirza has not said anything in his affidavit from which I can construe that he Is immediately above the lowest level of workers in the establishment. On the other hand, from the admitted documents on the record and the statement of Mr. Nasir Mirza, in his application under section 34 of the Ordinance, it is clear that he was occupying a much higher position than that of a workman immediately above the lowest level of workers In the establishment. I would now proceed to examine the documents on the record, which the appellant admits, In order to construe the position of Mr. Nasir Mirza in the establishment.
12. Mr. Nasir Mirza in paragraph 4, of his application under section 34 of the Ordinance stated as under t- "The applicant did all this single handedly as the same was done before by a team of Stenographers and Mr. Nazir Ahmad."
13. In cross-examination. Mr. Nasir Mirza stated as under: ---I know Mr. Nazir Ahmad. He was the Unit Manager in the Company. He had four divisions under him. I did not take work of four divisions from Nazir Ahmad. I was not working with the team of the Stenos. I was working In audio-visual Computers Division after the exit of Nazir Ahmad, his work plus any other work assigned to me."
14. In this connection, reference may also be made to the affidavit of Mr. Nari M. Nargolwala, General Manager and Director of the Company. He stated in his affidavit that after the exist of Mr. Nazir Abroad, Manager for Technical and Service Engineering, Mr. Nasir Mirza took over the entire responsibilities from Mr. Nazir Ahmad and since then he had been in full charge and control. Mr. Nargolwala also stated in Paragraph 8, of his affidavit that "the members of the managerial staff who are Incharge of their respective Divisions submit to the General Manager a monthly statement styled as Statement of Indents Sales and expected commission. The said statements are signed by the incharge of the Division." Mr. Nargolwala produced 49 such statements signed by different Heads of the Dqpar1ments, including 14 statements signed by Nasir Mirza. There is no cross-- examination on this aspect of the affidavit by the Representative of the appellant.
15. It would follow from the statement of Mr. Nasir Mirza himself and the allegation of Mr. Nargolwala, which remains unchallenged, that. Mr. Nasir Mirza was occupying a substantially high position in the establishment.
16. It would be useful to reproduce the contents of Exh. 4 which Is an important document. It runs as under: "JOB DESCRIPTION.
M. N. Mirza.
Daily:1. Attending to customers who come for indent enquiries e. g. Unaccompanied baggage, etc.
2. Attending to customers in show-room in conjunction with Qureshi (whenever necessary).
3. Attending to customers outside for sale of$ look items in collaboration with Qureshi.
4. Calling on customers for procuring indents as per instructions from Mr. Laljee.
5. Accomnying Mr. Laljee on calls whenever necessary (three to four times a week).
6. Vick Enquiries.
Weekly:1. Making calls on various Embassies.
2. Sending out literature to customers.
3. Correspondence with Principals for Literature and advertising material.
(M. N. MTRZA)
Daily:Job 1, 4 and 6 from the daily job list will be handed over to Quraishi, while job 2 and 3 will be given to Malik. Job 5, Mr. Laljee will decide to take anybody he wants to.
Weekly:Job No. 1 will be looked after by Mr. Laljee while Job 2 and 3 will be handed over to Malik.
(Sd.) Nasir Mirza."
17. Exh. 4, reproduced above, establishes the status and position of Mr. Nasir Mirza in the establishment. He could distribute daily work and also weekly work to other officers in the department.
18. 1t would appear from Exh. 5, dated 10-1-1968, an application by Mr. Nasir Mirza for increase of his Travelling Allowance from Rs. 100.00 to Rs. 200.00, that he was looking after the manufacture of chairs, including the purchases required for It. He did not perform merely the work of supervision, but also the important work of purchase of material for the manufacture of chairs. It is also noteworthy that he had made the application for increase in Travelling Allowance through Mr. Nazir Ahmad from whom he took over charge later on. Mr. Nazir Ahmad recommended that his allowance may be Increased which was increased to Rs. 200.00.
19. Exh. 7, is a letter of resignation dated 1-7-1967, by Mr. Habib Ahmad to the Executive Administration, Zelin Limited. The endorsement on the application by Mr. Nasir Mirza is as under: "May be released."
20. There is yet another letter of resignation by Mr. Habib Ahmad dated 5-1-1968, which had also been accepted by Mr. Nasir Mirza. It would appear from Bib. 9, a certificate issued by Mr. Nasir Mirza that Mr. Habib Ahmad Was Foreman in the Workshop.
21. Mr. Nasir Mirza in his letter dated 26-1-1971, Exh. 10, written to Mr. Pierro Satamian (Lebanon), informed him that Mr. Nazir Ahmad lead left the Company In January 1971 and all mail relating to Computer and Video Tapes should be addressed to Dim with a copy to Mr. Nargolwals. Exhibit 12, is a document signed by Mr. Nasir Mirza for the Company ordering goods from Lebanon worth Its.
12,892.00. Exh. 13, is an order to some employee of the Company by Mr. Nasir Mirza to prepare some file.
22. From a perusal of the documents mentioned above which have been admitted by Mr. Nasir Mime, it is very clear that he was occupying the such higher position than that of a worker immediately above the lowest level of workmen in the establishment. He could accept resignation from a Foreman. In this connection, one cannot ignore the Conveyance Allowance of Rs. 200.60, which he was getting and which shoes the status of Mr. Nasir Mirza in the Company. I would hold that he was not a workman within the meaning of the definition of "workman".
23. There is no force in the contention that the increased salary was withdrawn because of the Union activities of Mr. Nasir Mirza. Mere allegation of victimization, however strongly expressed cannot take the place of proof. There is mere word of the appellant to support this allegation. He has not stated anything definite which may have annoyed the Company; there is no cross- examination of Mr. Nargolwala on this point. Mr. Nargolwala should have been put the facts, which annoyed the Company in his cross-examinations I would hold that the increased salary was with drawn not because of his Union activities, but because he was not able to achieve the target.
24. Having held that the appellant is not a workman, he is not entitled to any relief under section 34 of the Ordinance. The interest of Industrial peace and justice, however, demands that I must briefly deal with the question of the salary that the appellant is entitled to receive. It is true, the increase of Rs. 250.00 in the salary of the appellant was dependent on his --performance. On the other hand, it was open to the Company even if the appellant did not achieve the target not to withdraw the increased pay considering the effort and interest that the appellant had taken In the per-- formance of his duty. The intention of the Company is amply demonstrated by the fact that the Company continued to pay the increased salary for 13 months. This generosity on the part of the Company raised a belief in the mind of the appellant that this was his salary, more so as there was nothing in writing during this long period to show that the Company was paying the increased salary as a grace. Moreover, the issue is determined by the admission made by Mr. Nagolwala in his cross-examination. He stated without any reservation as under: " Salary of Nasir Mirza is Rs. 975.00 in all."
I have come- to the conclusion, considering the circumstances of the present case and the admission of Mr. Nargolwala without any reservation of qualification, that the salary of Mr. Nasir Mirza is Rs. 975.00 per month in all. I would hold that the Company had increased the consolidated salary of Mr. Nasir Mirza to Rs. 975.00 per month. It was too late to enforce the term of the agreement by withdrawing the salary on the ground that he had not achieved the target. It would not be legally right to direct the Company to pay Rs. 975.00 per month as salary to Mr. i-Nasir Mirza as he 1s not a workman, but I would express my wish that the Company in order to main. Lain industrial peace and harmonious relationship between all sections of its employees, will resume to pay the same together with the arrears of salary at its earliest convenience.
26. While, disposing of the appeal, I would like to express that I WO approve of any one, irrespective of the regard and respect I may have for him, to speak about any pending matter. A talk though it may not be directly to favour a party is against the best traditions of judiciary. To heat is to feel embarrassed. Workers and employers are both entitled to patient hearing, more so a workman.
The Labour Judiciary with its ideal fir industrial peace is nevertheless bound to apply the law, though it may go against the la lour. With these observations, I would dismiss the appeal.