DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, III at Karachi, dated 21-12-1988, whereby the grievance petition filed by the appellant was dismissed on the ground that he was not a `workman'.
2. The brief facts of the case are that at the relevant time, the appellant was working as Junior Packaging Officer when his services were terminated on 12-1-1986, by a letter without assigning any reason, as required under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968), hereinafter referred to as an Ordinance. After service of grievance notice, the appellant filed grievance petition before the learned Labour Court which was resisted by the respondents mainly on the ground that the appellant was not a 'workman', but, was an 'officer'.
3. I have heard Mr. M.L. Shahani, the learned Advocate for the appellant and Mr. A. Hafeez, the learned Advocate for the respondents and have also gone through the record and proceedings of the case.
4. The only question for determination is whether the appellant was a `workman'. Mr. A. Hafeez, the learned Advocate for the respondents has candidly admitted that if it is held that the appellant was a workman, then, the respondents are out of Court. It is a settled law that it is the nature of work that an employee performs and not his designation which is a criteria for determining as to whether an employee is a workman or not. Therefore, it is to be seen from the evidence on record as to what duties the appellant was performing or had to perform. Admittedly no evidence has been produced by the respondents. The only evidence on record is the evidence of the appellant and the documentary evidence, if any, produced by the parties and also evidence of Mr. Mullah, Section Incharge of the appellant who was examined by the appellant.
5. In para. 1 of his grievance application, the appellant has stated that notwithstanding his, designation, the work done by him was mostly of clerical nature and he did no work of supervisory or managerial nature. In their written statement, the respondents had denied that appellant was a workman or he was doing any clerical work. However, as the signatory of the written statement which is not on oath, has not been examined, therefore, the averments made by the respondents in their written statement cannot be considered as evidence to rebut the evidence of the appellant on oath. Reliance is placed on PLD 1972 SC 25.
6. In his affidavit-in-evidence, the appellant has affirmed the averments made in the grievance petition to be correct and had adopted the same as part of the evidence. In para. 4 of the affidavit-in-evidence, the appellant has given detailed description of the job, done by him, which may be reproduced as under:-- "Job done by me was to receive material from stores department and distribute that material to the workers concerned and also to work alongwith workers in packing goods. The work was done in batches and wherever batches were still remaining, to collect the same and deposit it back in the store and to obtain receipt therefor. I say that I was not entrusted with any supervisory work or job of any managerial description and, therefore, I had no supervisory power or function in any manner whatsoever. I was not even Section Incharge. Mr. A.Y. Mullah was my Section Incharge to whom I was supposed to report for the working of the department. Even after my promotion my salary was Rs,725, rest of the amount was allowances."
7. In para. 7, he has denied that he had any managerial or supervisory function and in para. 8, he states that he was receiving his share in the Company's Profits Workers Participation Fund, under law which is payable to the workers.
8. The respondents, however, have mainly relied upon the admissions made by the appellant in his cross-examination. He had admitted that he had tendered resignation from the membership of the C.B.A. Union after he was promoted as Junior Packaging Officer. He also admitted that he did not get settlement benefits between the C.B.A. And the management from the date he was promoted as an Officer and he did not complain about non-payment of such benefits. He has further admitted that there were sma ll departments in Production Department and one of the departments, is Packaging Department and the Incharge of Packaging Department reports to the Production Manager. He has further admitted that there were two sections in Packaging Department, one dry and the other wet and there were two Supervisors, one for each section. He has further admitted that he used to supervise both the Sections, but, his job was clerical in nature.
He has further stated that there were four checkers in Wet Section who were working with him, but, they were not working under him and that there were two checkers working with him in Dry Section.
He had further admitted that he used to verify the material received and checked by the checkers on the Packages Order which was his routine duty. He admitted the Packaging Orders shown to him in Court were not filled in by him, but, he has further stated that he used to fill them. He admits that Exh. R-10 which is a photocopy of the Product Card was prepared by the checker and was signed by him as Supervisor. He has further admitted that such cards were prepared and filled in daily routine and he had also' filled such cards, he produced photostat copies of them as Exhs. R-1 to R-5. Fhe record shows that he was not permitted to produce such photostat copies from his own possession. He has denied that he was not doing any clerical job of any nature or that he was doing only supervisory or managerial job.
9. The appellant has also examined Mr. Ahmed Yaqoob Mulla. He was admittedly Incharge of Packaging Section where the appellant used to work. He had produced certain documents as Exhs.
A-2/1 to A-2/8 which he states to have signed by him as Supervisor. He stated that the appellant used to work in his section and he was supposed to do any kind of work including running of machine and used to replace the worker proceeding on leave.
10. He has further admitted in the cross-examination that the appellant had correctly stated that Mr. M.Y. Mulla was Section Incharge to whom he was supposed to report about working of the department. He has further admitted that there were 3 Supervisors working under him in Packaging Section and that 6 checkers were under him. He has further admitted that there were 70/80 Packers/Machine Operators working in their Section. He had also admitted that the appellant was a Supervisor and the Checkers and Packers-cum-Machine Operators work under the Supervisor.
He had clearly stated that the clerical job was a part of the supervisory work and that the Supervisor kept the record of the work done by the checker and sometimes he also worked as a checker when a checker was not present and he had to perform the job of a checker.
11. From the evidence, it is apparently clear that the appellant was appointed as a Supervisor and that he did both supervisory work as well as clerical work. In his cross-examination, he has stated that though he was promoted as Junior Officer, but, he continued to perform the same duties which he was doing as a Checker.
12. In this context, it would be pertinent to look at the definition of `employer' and 'workman' as defined both in Industrial Relations Ordinance, 1969 and under Standing Orders Ordinance, 1968, word 'employer' is defined under section 2(viii) of I.R.O., 1969 in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employee workmen in the establishment under a contract of employment and includes--
(a) an heir, successor or assign 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) .
(d) .
(e) in relation to any other establishment, the proprietor of such establishment and every Director, Manager, Secretary, Agent or Officer or person concerned with the management of the affairs thereof.
13. Word 'worker' and 'workman' defined in subsection (xxviii) of section 2, I.R.O., 1969, to mean any person not falling within the definition of employer, but, inter alia excludes a person who being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
14. Word 'employer' has been defined in section 2(c) of Standing Orders Ordinance, 1968, to mean the owner of an establishment and inter alia includes any person responsible to the ownet for the supervision and control of such establishment.
15. Word 'workman' has been defined in subsection (i) of section 2 of the Ordinance, to mean any person employed in any industrial or commercial establishment to do any skilled or un-skilled, manual or clerical work for hire or reward.
16. In the case of Muhammad Hafeez v. The Managing Director, Karachi Transport Corporation reported in 1988 PLC 125, a learned Division Bench of Sindh High Court had observed that "the comparison of two definitions of workman in the Standing Orders Ordinance and the Industrial Relations Ordinance, 1969 shows that the definition of workman in Industrial Relations Ordinance, 1969 was more comprehensive and included more employees as workmen as compared to definition in Standing Orders Ordinance, 1968." Similar C view was taken by a Division Bench of Sindh High Court in the Constitution Petition No, D-1898/1979, decided on 1-12-1988, in the case of Zahid Hussain v. Hoechst Pakistan Ltd. And others.
17. Definition of worker under Standing Orders Ordinance would show that any worker who is doing any manual or clerical work would be a worker. The connotation of word 'any' was considered in a case reported in PLD 1982 Kar. 913 and after considering the definition of word 'any' in various Dictionaries, their Lordships came to the conclusion that the word 'any' has a very wide connotation and it will inter alia include every kind of thing of the type which is prefixed by the word 'any'. It is, therefore, contended that if the appellant has been able to show that he had been doing any clerical work, he would fall in the category of 'worker' but, the consensus of the decisions of the superior Courts is that the person who is employed mainly to do managerial or supervisory duty and does clerical or manual work incidental or ancillary to his main duties would not fall within the definition of 'worker' under the Standing Orders Ordinance, 1968. In the case of General Manager, Hotel Intercontinental, Lahore and others v. D Bashir A. Malik and others reported in PLD 1986 SC 103, the Hon'ble Supreme Court of Pakistan had observed as under:-- "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."
18. In the case of Ganga R. Madhani v. Standard Bank Ltd. Reported in 1985 SCMR 1511, while considering whether a Grade-III Officer employed in a Bank, as defined in Standing Orders Ordinance, 1968, their Lordships had observed that the definition of worker under Standing Orders Ordinance makes it abundantly clear that a 'workman' as defined in that Ordinance is a person employed merely to do manual or clerical work, whether it be skilled or unskilled. This definition completely excludes from its ambit person employed in supervisory, administrative or managerial capacity. It was further observed that "in determining the status of an employee i,e, deciding as to whether or not he is a workman, what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties." It may be pointed that in the above case the respondents had produced evidence with regard to the primary duties of the appellant which were incorporated in the Power of Attorney executed by the respondent bank in favour of the petitioner.
19. In the case of workers of Bata Shoe Co. Lahore v. Bata Shoe Co. Ltd. And another reported in 1971 PLC 1, their Lordships of the Supreme Court had observed that a Foreman in a factory cannot be held to be a workman because of mere fact that such person was doing something with his own hands by way of checking and testing the work done by other workers.
20. However, as held in the aforesaid decisions, the pith and substance of the duties of the appellant has to be determined to see whether his main duties were supervisory in nature and the clerical work done by him was ancillary to his duties as Supervisor. I have already reproduced evidence of the appellant and his witness Mr. Mulla with regard to the nature of the duties performed by the appellant and have pointed out that the respondents have produced no evidence to show as to what duties the appellant had mainly to perform. They have not produced any Job Description of the duties or the responsibilities of the appellant or officers of the similar grade/designation. The question now arises as to on which party is the burden of proof. In the aforementioned case of Zahid Hussain, a learned Division Bench of Sindh High Court had observed that the burden of proof was on the petitioner to show that he was a workman in terms of clause (i) of section 2 of the Standing Orders Ordinance and not on respondent No,
1. If the petitioner would have discharged the above burden, the burden would have been shifted to the respondent No,
1. It may be pointed that in that case also, the respondents/employers had not produced any evidence with regard to the nature of duties of the employee, but, in the cross-examination the employee had admitted that he had purchased a car and was maintaining it at the cost of the employer and that he was drawing a salary of Rs,1,225 and that the petitioner's privileges entitlement and leave fare were regulated by respondent No, 1 vide letter, dated 28-12-1974, which appears to have been produced in that case.
21. In the case of Shahid Hussain v. President, United Bank Ltd. And others, in Constitution Petition No, D-123 of 1982, decided on 8-3-1983, a learned Division Bench of Sindh High Court at Sukkur, has held that "since the petitioner belonged to an officer class, the burden of proof was on him to show that notwithstanding his designation as an officer he was a workman within the definition given in the West Pakistan Standing Orders Ordinance because of the nature of his duties." Their Lordships, therefore, in the absence of any evidence on record declined to interfere with the findings on the question of fact given by the Sindh Labour Appellate Tribunal.
22. In the case of S. Kifayat Hussain v. United Bank Ltd. And others, in Constitution Petition No, D-975 of 1981, decided on 17-3-1986, a learned Division Bench of Sindh High Court had observed that it was for the petitioner to establish that in spite of having been promoted as an officer Grade-III he was only employed for the job of clerk or that he was actually performing the duties of clerical nature but he had failed to do so. Therefore, their Lordships declined to interfere with the findings on fact of the Sindh Labour Appellate Tribunal that the appellant was not a workman. In that case also no evidence was produced with regard to the nature of the duties of Grade-III Officer in the Bank, but, only the list of officers of Grade-III who were performing the duties of clerical nature and another list of those clerical staff who were performing work of managerial nature were produced by petitioner and their Lordships had held that this could not be considered as evidence.
Furthermore, the petitioner in that case had not examined himself and Assistant Vice-President of the bank as directed by the Sindh Labour Appellate Tribunal for the purpose of determining the nature of the duties of the appellant. In 1983 PLC 509 in the case of Messrs Opal Laboratories Ltd. v.
Muhammad Moinul Islam, it was held that the burden of proof that the petitioner was a workman under Standing Orders Ordinance was upon him.
23. It may be pointed that in all the aforesaid four cases, relied upon by Mr. A. Hafeez, the decisions were given in Constitution petitions where the High Court did not go into the question of fact as the question of fact had already been determined by the Labour Court and the Labour Appellate Tribunal. There can be no dispute that initially the burden is always upon the party who seeks a relief that he is a workman under Standing Orders Ordinance, but, once the workman had discharged that burden, then, as held in the aforesaid case of Zahid Hussain, the burden shifted upon the employer to prove negative.
24. Mr. A. Hafeez has also relied upon the case of Yasmeen Kausar v. Messrs Midway House Ltd.
Reported in 1985 PLC 735, wherein a learned Division Bench of Sindh High Court had observed that "if the employer did not produce any witness before the Labour Court and deemed it fit to close the case leaving it open to the Labour Court to decide on the basis of documents produced, then, it was so done by the respondent in consonance with legal rights and nobody can prevent him from exercising that right."
25. In the case of Flour Mills Employees' Union v. Karachi Steam Roller Flour Mills reported in PLD 1964 (W.P.) Kar. 587 it was held-- "The contention of the Union with respect to its demand for bonus can be disposed of shortly because the only objection urged against the decision of the Industrial Court in respect of it is that the financial situation of the company was not properly established to support the conclusion.
Counsel for the union urged that the evidence, on the basis of which the situation could be established, was in the possession of the company which it did not bring on the record; therefore, a presumption should have been raised against the company. The Industrial Court has explained that payment of bonus was not warranted on the basis of the previous balance-sheets and that the affairs could not be clearly understood with respect to the running year because the accounts had not been finalised. If the union was not satisfied with the evidence that was produced by the company, then, it ought to have taken steps to get such other documents produced as could establish its case and cannot in substitution of that, take the stand, that a presumption should be raised against the company. The facts were not of such a nature as could not be brought on the record at the instance of the union if it desired to prove them. The stand of the union in this respect cannot be sustained."
26. There can be no dispute that the employers cannot be compelled to produce any evidence but they do so at their own risk. If it is held that the employee had initially discharged the burden to prove that he was a workman, then, the burden ,would shift upon the employer and in such case, the non-production of the evidence is likely to raise presumption against the employer.
27. Mr. A. Hafeez had also relied upon the case reported in PLD 1988 SC 180, in the case of Security Papers Ltd. v. Sindh Labour Appellate Tribunal and another to show that for the purpose of proceedings under the I.R.O., 1%9, the definition of worken as defined in I.R.O., 1969 is not to be invoked but only the definition of workman under Standing Orders Ordinance would be applicable.
However, in that case as pointed by their Lordships the Industrial Relations Ordinance by its own force was not applicable to the case of employee because by virtue of section 1(iii)(e) of the said Ordinance. This case is, however, distinguishable as there is no bar of the application of the Industrial Relations Ordinance, 1969 in 'the case of the appellant.
28. It is submitted by Mr. M.L. Shahani, the learned Advocate for the appellant that even if the appellant is held to be a Supervisor, the evidence on record shows that he was drawing the salary of less than Rs,800 per month and, therefore, would not be excluded from the definition of a workman as defined in the Industrial Relations Ordinance, 1969. Mr. A. Hafeez, the learned Advocate for the respondents on the other hand contends that for the purpose of decision as to whether the appellant was a workman, only the definition under the Standing Orders Ordinance was relevant and it did not make any exception in the case of Supervisor getting a salary less than Rs,800 and further contended that overall wages of the appellant were much more than Rs,800.
29. Mr. A. Hafeez had relied upon the aforesaid case of the Security Papers Ltd. Reported in PLD 1988 SC 180 which has been discussed as above in para. No,
27. Mr. Shahani, on the other hand has relied upon the case of Shahzar Khan v. Sindh Labour Court No, IV, Karachi and 2 others reported in 1977 SCMR 103. In that case, the question before their Lordships of the Supreme Court was whether a Chowkidar was a workman or not. The Hon'ble Supreme Court referred to their earlier decision of the Supreme Court in Civil Appeal No, K-6 of 1968 (Organisation of Karachi Port Trust Workers v.
Karachi Port Trust etc.) decided on 19-1-1970, and had observed that-- "The latest Ordinance on the subject, namely, the Industrial Relations Ordinance of 1969 (XXIII of 1969) has resolved all doubts on the point. `Workman' as per definition contained in section 2(xxviii) of the Ordinance, covers all employees of an industrial establishment, whatever the nature of their duties, and include employees who have been discharged in connection with an industrial dispute or whose discharge has led to that dispute."
' Their Lordships, therefore, opined-- "The learned Single Judge of the High Court seems to have misconceived the law applicable to the facts of the present case inasmuch as he applied West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, instead of the Industrial Relations Ordinance of 1969 . It is due to this mis-conception that the learned Judge proceeded to consider whether the appellant was doing any manual or clerical work. No such words appear in the definition of 'workman' as given in section 2, clause (xxviii) of the Ordinance."
30. This decision of their Lordships does not appear to have been referred to, distinguished or overruled in the later decisions of the Hon'ble Supreme Court, but, in the later decisions, their Lordships of the Supreme Court had always considered the definition of 'workman' as defined in the Standing Orders Ordinance to determine the status of the workman.
31. However, this decision was referred to in the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayoon Khan and others reported in 1988 SCMR 1664, wherein the passage from the judgment of the High Court under appeal was reproduced. It may be reproduced, as under:-- "Learned counsel for the petitioner contended that respondent No, 1 being the Manager, incharge of the branch of bank, was exercising control and supervision of the other staff and was also invested with powers through a power of attorney which was executed in his favour by the Bank. Thus, the argument is that respondent No, I was not a `workman' as his duties entailed the responsibility, initiative as he was entrusted with the duties of managing the petitioner's branch at Batkhela. In support of his contention the learned counsel placed on record a judgment of the Supreme Court 'Civil Petition for Special Leave to Appeal No, K-89 of 1975 Salahuddin Masood v. Pakistan and 3 others decided on 12th August, 1975. The learned counsel also cited Muhammad Moinul Islam v.
Opal Laboratories 1979 PLC 131 in which it was held that the first ground which was relied by the Labour Court was that the appellant was a salesman, and therefore, not a workman, with the result that the application was not maintainable. This view was based on the definition of the term 'workman' provided by the West Pakistan (Standing Orders) Ordinance. It was held further that until recently this view prevailed but it was altered and must be deemed to have been set at rest by the unreported decision of the Supreme Court in Civil Appeal No, KAR-19 of 1976. Shahzad Khan v. Sindh Labour Court and others, in which it was clearly laid down that the definition as provided by Standing Orders Ordinance could not be taken under consideration but any person who was a workman as defined by Industrial Relations Ordinance could have recourse to the provisions of section 25-A, I.R.O."
32. Their Lordships of the Supreme Court further observed that leave to appeal was, however, granted by the Supreme Court to examine precisely the same plea mentioned above whether the respondent "who was the Manager of the Branch Bank of the appellant at the relevant time can be said to be a workman." Their Lordships of the Supreme Court approved the views of the High Court and dismissed the appeal.
33. The aforesaid decision of Hon'ble Supreme Court is dated 12-6-1986. However, on 6-7-1988, another decision was announced in the case of Muhammad Sadiq v. Hotel Intercontinental, Lahore and another reported in PLD 1988 SC 633. In this case, the appellant claimed to be drawing a salary of Rs,800 inclusive of allowancc,, and, therefore, he claimed to be a workman under the Industrial Relations Ordinance, 1969. His plea was accepted by the learned Labour Court and by the Labour Appellate Tribunal, but, it was reversed by the Hon'ble High Court, holding him not to be a workman within the meaning of Standing Orders Ordinance, 1968 as he was mainly doing supervisory work and he assisted in manual work only in exceptional situation. In appeal, their Lordships of the Supreme Court observed-- "We are of the opinion that the real lest for determining whether a person falls within ambit of the definition of 'workman' depends on the nature of the duties performed by him. In the present case it is manifest from the evidence on record that the duties of the appellant at the relevant time were of a supervisory nature and since the nature of work performed by an employee is to be considered at the true criterion and the deciding factor in determining as to whether or not he was a `workman', the learned Judge in the High Court was justified in the light of the evidence on record, to reverse the concurrent findings of the Labour Courts below which were not based on the evidence on record."
34. Considering all the case-law discussed above in my humble opinion for filing of a grievance application under section 25-A, I.R.O., 1969, the petitioner has to show that he is a workman as defined in the said Ordinance. However, if in grievance petition he wants to enforce certain rights secured to him under Standing Orders Ordinance, 1968, he has also to show that he was a workman as defined in the Standing Orders Ordinance, 1968.
35. Admittedly the appellant was supervisor and according to Mr. Mulla, he checked the work of checkers and machine operators who used to work under him and used to keep the record of the checkers. He has deposed that the appellant did the work of checker or machine operator when such a checker or machine operator remained absent, but, such casual work could not make him a workman. On his own admission he had resigned from the membership of the union which indicates that he no more considered himself workman after his promotion. He, therefore, cannot, be said to have been employed merely to do manual or clerical work. The pith and substance of his duties appear to be H supervisory in nature and the clerical work done by him, if any, was incidental to and ancillary to his job as a Supervisor. He, therefore, cannot be considered to be a workman within the meaning of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and, therefore, he cannot enforce any right guaranteed to him under the said Ordinance, even if he is held to be a workman under Industrial Relations Ordinance, 1969. He has not been able to show if he had any other right under any other law or settlement or award, which he could enforce under the application under section 25-A, I.R.O.
1969.
36. For the aforesaid reasons, as the appellant is not proved to be a workman as defined in Standing Orders Ordinance, 1968, his appeal is dismissed.
37. Before parting, I may mention that all these laws in the Labour field have been enacted for the benefit of the workmen. It is very unfortunate that even the question as to who is a 'workman' has not been clearly defined in simple language which an uneducated person can understand. Most of the cases filed under the Labour :Laws generally hinge on the question as to whether the employee was a 'workman or not. This controversy in a number of cases is taken even before the Hon'ble Supreme Court and lot of time is consumed and lot of expenses are incurred in litigation to get the final decision, which is against the spirit and intention of the Labour Laws. It is high time that concerned authorities may consider the desirability of amending the definition of 'workman' so as to leave no scope or doubt for controversy and litigation. Most of the cases filed under Industrial Relations Ordinance, 1969, are for the enforcement of the rights secured under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It will, therefore, be in fitness of the things that the definition of 'workman' in both the Ordinances is made similar. As the matter of fact, all the employees are in technical sense workmen as they are doing either manual or clerical work of some sort. The purpose of Labour Laws is to give relief to low paid employees.
Therefore, I will suggest, that some limit of basic salary should be fixed in the definition to distinguish a workman from the non-workman. It looks unfair that an Engineer drawing a salary of Rs,10,000 doing the skilled work with hands is considered as a 'workman' and gets the benefits under the law, whereas a Chowkidar who does no manual work but draws salary of Rs,1,000 only is not held to be a 'workman'. It is also suggested that work 'wages' used in definition of 'workman' under sub-clause (b) of section 2(xxviii) of Industrial Relations Ordinance, 1969, be defined and amount of Rs,800 per month fixed in 1972 may also be suitably increased. A copy of this decision be sent to Justice Division, Islamabad, for consideration of the aforesaid suggestions.