DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No,III, dated 20-8-1989, whereby grievance petition filed by the appellant was rejected on the ground that he was not a workman.
2. The brief facts of the case appear to be, that the appellant was employed by respondent No,2 on 1-3-1974 and was confirmed on 1-7-1974 as Assistant Class II. He was redesignated as Administrative Supervisor w,e,f, 1-7-1976 vide letter, dated 14-7-1976. On 4-11-1985 his services were transferred to the Project of respondent No,1 at Lahore, but for certain reasons he could not resume his duties there. His services were consequently terminated by respondent No,1 vide letter, dated 8- 1-1986 which was received by the appellant on 15-1-1986. Dissatisfied with this order, he served grievance notice upon respondents Nos.1 and 2 on 6-4-1986 and thereafter filed the grievance petition. Respondent No,1 raised the plea, that the appellant was not a workman, and therefore, he could not invoke the aid of Labour Court under section 25-A of I.R.O., 1969 and that the services of the appellant were rightly terminated as he refused to resume his duties. Respondent No,2 took the plea, that the services of the appellant stood transferred to respondent No,1 w,e,f, 4-11-1978 and therefore he was not responsible.
3. I have heard Mr.M.Rafiq Malik, learned Advocate for the appellant, Mr. Latifur Rahman Khan Survery, learned Advocate for respondent No,1 and Mr. Sher Afgan, learned counsel for respondent No,2 and have also gone through the record and proceedings of the case.
4. The main question that requires consideration is whether the appellant was a workman. The definition of 'workman' under the Industrial Relations Ordinance, 1969 as well as West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been considered by the superior Courts in number of cases. The case-law on the subject has been summed up by their Lordships of Supreme Court in the case of General Manager, Hotel Intercontinental Lahore and others v. Bashir A.Malik PLD 1986 SC 103 in the following words:-- "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 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 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."
' Thus, to determine the question whether the appellant was workman or not, we have to see the nature of his work. The appellant has given nature of his work in Para. 5 of his grievance petition. He has given in further detail his nature of work in Para. 2 of his affidavit in-evidence as under:- "That I say that I was workman within the meaning of Section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as well as section 2(xxviii) of I.R.O., 1969 as I was performing various duties purely of clerical nature such as (1) Despatch and Receipt of outgoing and incoming letters by entering in despatch register, (2) filing of letters and other documents, (3) to get the transports repaired at the instructions of Deputy General Manager,
(4) to make arrangement of reception party of staff and area delegates at the instructions of Deputy General Manager, purchasing of material in absence of purchase clerk, (5) to maintain records of labour insurance matters, (6) to maintain stationery record and issue the same, (7) to make tea arrangement for officers, (8) putting up personal cases to Administrative Officer, (9) vetting of employment applications, (10) maintenance of personal records, including seniority list and personal files and (11) assist Administrative Officer for duties as assigned by him from time to time."
The respondents have denied the averments of the appellant but have not given the description of his duties in the written statement. In his affidavit-in-evidence in Para. 6 appellant has asserted that he was workman and as such he was receiving overtime and has produced certain pay slips in support of his contention that he received overtime. In para. 5 he has asserted that as a workman he was Member of the Union which was `C.B.A.' of establishment of respondent No,1 and that his subscription was deducted by respondent No,1 in accordance with Section 23 of I.R.O., 1969 and was paid to the said Trade Union. He has produced salary slips which are Annexures A-1 to A-7 and Annexure B-1. Annexures A-1, A-2 and A-3 are salary slips for the months of April, 1979, December, 1980 and November, 1981, which show, that union dues were deducted from his salary while in the other salary slips the dues do not appear to have been deducted. However, these salary slips show that even in January, 1985, he was paid overtime.
5. It is admitted that the appellant was promoted as Administrative Supervisor on 14-7-1976 and the case of the respondent is that after promotion as Administrative Supervisor he ceased to be a workman for the purpose of Standing Orders Ordinance. However, the salary slips show that up to November, 1981 union dues were being deducted from his salary which means that he was treated as workman by the respondents. There is no evidence on record to show that after the year, 1981, there has been any change in his duties or that he got another promotion after 1981. He has, of course, admitted in the cross-examination, that union dues were not deducted from his other salary slips. He has shown ignorance in his cross-examination as to when he relinquished the membership of the union, but again asserted that it was incorrect that he was no more member of the staff union after 1981 and that his membership had not been 1 cancelled.
6. Mr. Ahmed Nabi Zuberi, Office Manager of respondent No,2 has admitted in the cross- examination that employees from Grade-6 to Grade-9 are workers, whereas those in Grades-1 to 5 are Officers. He has also admitted that there is a job classification of Grade-6 employees and Grade-6 to Grade-9 employees are covered by Group Insurance Policy. It may be pointed out that the appellant was originally employed by respondent No,2 but subsequently his services were transferred due to bifurcation but admittedly there was no change in terms and conditions of service.
7. Mr.Muhammad Mobin, Manager of Respondent No,1 has also admitted that Service Rules of parent company had been adopted by their company. He has admitted that Grades-1 to 5 are for Officers and Grades-6- to 9 are for workers as well as for supervisors. He has admitted that employees in Grades-6 to 9 are given overtime and Group Insurance. It is not clear as to what grade the appellant belongs t6 but the fact that he was getting over time and was also covered by Group Insurance would show that he belonged to Grade-6, a grade immediately after Officer Grade. The admission of Mr. Muhammad Mobin that they have adopted the parent company's Rules of Service read with the admission of Mr. Ahmed Nabi Zuberi of the parent company that employees in Grades-6 to 9 are workers would clearly show that the appellant who was in Grade-6 was also a workman. It may also be pointed that none of these two witnesses have given any specific description of the job done by the appellant, but only state, that he did supervisory work.
The mere fact that he had recommended leave applications or requisitioned stationery items would not be conclusive proof that he was not a workman.
8. The fact that the appellant was treated as the workman by the respondents shifted the burden upon them to show that he was not a workman. No 'job description' of the appellant had been produced by the respondents though Mr. Zuberi had admitted, that there was 'job description' of Grade-6 employees. As against this the appellant had given an oath the description of duties performed by him which have been reproduced above, which clearly show that he was doing work of clerical nature. In the cross-examination his averments as to the duties he was performing, have not been specifically chaljenged though it is put to him that he was doing supervisory duties which he has denied. The learned Labour Court has disbelieved his evidence on the ground that it was not supported by any documentary or oral evidence. All the documents would be in possession of the respondent and non-production of the documents would not be fatal to the case of the appellant rather those documents should have been produced by the respondents to disprove the contention of the appellant, because burden of proof, as pointed above, was upon the respondents. For the aforesaid reasons I am inclined to hold that the appellant was a workman as defined under Standing Orders Ordinance, 1968.
9. Admittedly since 1978 the appellant has been receiving his salaries and orders from respondent No,1. There' is evidence of the respondent's witnesses that in 1978 respondent No,2 was bifurcated and respondent No,1 was also established whereafter the services of the appellant were transferred to respondent No,1. As such no claim of the appellant would lie against respondent No,2, as he continued to serve with respondent No,1 since 1978 without any objection. No evidence has been produced by the appellant that his services were lent on deputation to respondent No,1.
10. Respondent No,1 had terminated the services of the appellant because he was allegedly unable to perform the duties at N.C.L., Aiwan-e-Iqbal, Lahore on account of physical invalidity. Admittedly he was not charge-sheeted nor was he medically examined to find out whether he was medically unfit. Under Standing Order 15(4) a workman cannot be dismissed from service unless act of misconduct was brought to his notice within the one month from the date of misconduct was conducted or it came to the notice of the employer. This has not been done in the instant case.
Furthermore, he has been held as medically unfit, without notice and without medical examination which is against the principle of natural justice. As such order of termination of services is not maintainable as it is violative of Standing Order 15(4) and principle of natural justice.
11. The question that arises is whether the appellant is entitled to any back benefits for the intervening period. Admittedly he did not report on duty after the expiry of his leave and he has performed no work thereafter. Under the circumstances I allow the appeal, set aside the impugned order and direct the reinstatement of the appellant by respondent No,1 without back benefits.
12. The order to be implemented within one month.