DECISION This is an appeal against an award of the Presiding Officer of Sind Labour Court No. I, Karachi, dated 23rd July 1973, whereby the learned Labour Court granted to the Respondent Gratuity equivalent to 15 days' wages for every completed year of service, Notice Pay for one month and Bonus for the year 197t-71, equivalent to one month's pay. The facts giving rise to the appeal briefly put are these.
2. Mr. Abdul Sattar Ahmed Pidha (hereinafter called the respondent), made an application upder section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), on 10th November 1971, for payment of Notice Pay, Gratuity, Payment of Wages for Earned Leave and Bonus. The respondent claimed that he was an Accountant of the appellaut- Company. His services were terminated on 30th September 1971, on one month's Notice Pay. The respondent claimed to be a workman and, therefore, his case was that he was entitled to various claims that he had preferred before the learned Labour Court. On the other hand, the case of the appellant-company was that the respondent was a Chief Accountant Notice Pay. 4. of the Company and was drawing a salary of nearly Rs. 2,000 per month. He was, therefore, not a workman entitled to the claim made by the respondent.
3. The learned Labour Court came to the conclusion that the respondent was a workman and, therefore, he was entitled to Gratuity, Bonus and It would be useful to summarise the grounds on which the learned Labour Court came to the conclusion that the respondent was a workman. The following are the grounds for the conclusion of the learned Labour Court :-- (1) That admittedly the respondent was not a Chartered Accountant;
(2) that the respondent had no authority to appoint or to terminate the services of any of the employees; (3) that the respondent had no authority to sign cheques; and (4) that the definition of "workman" as given under section 2(xxvii) of the Ordinance, as it stood at that time, covered the case of the respondent that he was a workman. 5. lt may be mentioned at the very outset that the approach of the learned Labour Court, while determining the question as to whether the respondent was a workman or not, was not correct. The learned Labouri Court should not have considered the definition of "workman" given under the Ordinance, but the one given under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). Only a person who is a workman within the meaning of the definition of "workman" given under the Standing Orders Ordinance can be entitled to the benefits conferred by the Standing Orders Ordinance. The leamed Labour Court in this respect observed as A 6. under :-- " I have read the definition of workman as given under section 2(xxvii) of I. R. O., 1969 as it stood at that time and come to the conclusion that the applicant's case falls under the said definition." This, of course, as I have already observed, was not correct. The learned Labour Court should have considered the definition of "workman" given under the Standing Orders Ordinance. Whether an Accountant was not a workman within the meaning of the definition given under the Standing Orders Ordinance, it was not necessary to establish that he was a Chartered Accountant; had the authority to appoint or to terminate the services of any of the employees or lastly, had authority to sign cheques. A person may not have these requisite qualifications and yet he can be held to be not a workman within the meaning of the definition of "workman" given under the Standing Orders Ordinance.
7. I would now proceed to examine the definition of "workman" given under the Standing Orders Ordinance, lt runs as under ;-- " 'workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical (work) for hire or reward."
8. The only change that has been introduced in 1972, after the application was made in 1971, is that the word "labour" after the "clerical" in the above definition has been substituted for the word "work". The. definition covers only persons doing skilled, unskilled, manual or clerical labour in any industrial or commercial establishment. Besides, whether a} person is a workman or not it is the actual work mainly done or duties'# performed by him which has to be looked to and not his designation orI emoluments. The word "labour" instead of "work" has further narrowed down the interpretation of the definition of "workman". Labour involves physical exertion.
9. Manual labour in the definition does not necessarily mean work by the application of hands, hut it does involve physical exertion as distinguished! from mental or intellectual exertion involved in clerical work. The admitted}-, position is that the respondent was not performing any skilled, unskilled!0 manual labour. He was performing clerical work. Clerical work has not! been defined. The conclusion one draws from decided cases is that manual as well as clerical work in the sense that these terms are used in the definition connote that it is more or less a routine work not requiring any amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by an employee would be the determining factor whether it is merely a routine work that he is performing or doing something which requires initiative and imagination. I would now proceed to consider the nature of the duties that the respondent was performing.
10. While considering the question of the nature of duties that the respondent was performing, I would like to observe that the case on behalf of the appellant has been badly conducted before the learned Labour Court. It was easy for the appellaut to have produced the Inspection Report or any other document clearly establishing the duties that the respondent was performing as an Accountant. Mere fact, however, that the appellant had not produced all the evidence that it could have produced, would be no ground to hold that the respondent is a workman. On the evidence on the record, a contrary view can be taken. If the best evidence had been produced, the learned Labour Court may have decided the case against the respondent and the respondent may not have come in appeal. I would bear this fact in mind, when considering the question of costs to be awarded to a party. The case of the respondent was that he was only an Accountant and performing his duties as such. On the other hand, the case of the appellant-company was that the respondent was a Chief Accountant, who was inspecting the accounts of other Accountants and finalisiug the accounts. Whether the respondent was merely writing the accounts of the Firm or doing something more, which required imagination and initiative is a question of fact, which has to be determined from the evidence on the record.
11. The respondent in paragraph 2 of his application dated 10th November 1971, stated as under :-- "That the appellart was working as an Accountant and his duties consisted in preparing, completing and compiling the Final Accounts of the various branches of respondent-Company and also in maintaining the day to day accounts of the Directors and the shareholders of the respondent." 12.
The respondent in cross-examination stated as under :-- **.................................................... I used to deal with 43 branches of East and West Pakistan . . ............................................... My pay was Rs. 1,900 p. m.
Accountants get Rs. 300, Rs. 500, Rs. 800 and Rs. 1,500 at times per month 13. Two things are clear from the cross-examination of the respondent, namely: (1) That he was dealing with as many as 43 branches of the appellant concern, and (2) That the pay that he was drawing was not that of an Accountant, as the highest pay that an Accountant, according to him, drew was Rs. 1,500 per month only.
14. I would hold that the respondent was not merely an Accountant, but holding a higher office. He may be called Chief Accountant or Inspector of Accounts, having authority to deal with 43 branches of the appellant concern, situated in Eatt Pakistan as well as West Pakistan. He was not expected to perform merely routine duties, but something more involving initiative and imagiralion. Mr. Obaid-urrehman, the learned Advocate for the respondent, however, contended that compiling final accounts of various branches was merely a routine duty. I am not prepared to accept this. In the first place, compiling final accounts of 43 branches required technical skill involving imagination and initiative. Every Accountant could not compile final accounts as a routine. The true nature of the duties performed by the respondent was not a routine work. At best, the routine work that the respondent can be said to be performing was maintaining tne accounts of shareholders and the Directors of the appellant- company. The shareholders and the Directors of the Company were not many and this perhaps was considered to be some special work, which was entrusted to the respondent. This duty, in my opinion, was only subsidiary! to the main duty that was being performed by the respondent to deal with!- 43 branches in both the wings of Pakistan and to finalise the same. Althoughr admittedly, the appellant-company had Accountants, but this duty was nou performed by any one else. I would hold that the respondent is not a workman within the meaning of the definition given under the Standing Orders Ordinance and, therefore, not entitled to the benefits conferred by the said Ordinance. The appeal is allowed and the award of the learned Labour Court is set aside.
15. Before I dispose of this appeal, in the interest of justice and fairplay, I must observe that the appellant, admittedly, is liable to pay one month's Notice Pay and Bonus to the respondent. In Exh. A/4, dated 12th October 1971, addressed by Adam Limited, to the respondent, it is stated as under :-- "You may collect one month's notice pay and bonus on any working day."
16. There is nothing on the record to show that Notice Pay or Bonus had been paid to the respondent. As I have already observed that the respondent has been unnecessarily harassed by prolonged litigation because the case on behalf of the appellant was not properly conducted, so as to bring all the relevant documentary evidence on the record, I would award costs of Rs. 1,200, Rs. 1,000 to be paid to the respondent and Rs. 200 to Mr. Obaid- urrehman, the learned Advocate, who appeared for the respondent. The bonus, Notice Pay and costs must be paid within a week. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.