1. NASIM HASAN SHAH, J.---This appeal, by leave of this Court, is directed against the judgment dated 21-10-1989 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.78 of 1989 filed by the Ittehad Chemicals (respondent No.3). The learned Judge by his above order set aside the orders dated 19-3-1988 and 7-6-1988 passed by respondent No.2 and respondent No.l respectively whereby the termination of the appellant was found to be illegal and he was reinstated into service.
2. The relevant facts are that the appellant was working as a Senior Foreman in respondent No.3's factory and was drawing wages amounting to Rs.1,833 per month at the relevant time. His services were terminated by respondent No.3's letter dated 17-11-1986 on the ground that his services were no longer required. The appellant, after serving a grievance notice, filed an application questioning the order of termination under Section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I.R.O) and for reinstatement. The above application was resisted by respondent No.3 and inter alia it was pleaded that the appellant was not a "workman". However, respondent No.2 after recording evidence and after hearing the parties by its judgment dated 19-3-1988 held that the appellant was a "workman" and the termination of his services was not legal. Accordingly, the appellant was ordered to be reinstated with back benefits. Against the above order, respondent No.3 filed an appeal before respondent No.l but the same was dismissed by him vide judgment dated 7-6-1988. Thereupon, respondent No.3 filed the aforesaid writ petition, which was allowed on the ground that the appellant was not a workman and the two judgments in his favour were set aside. The appellant has, therefore, filed this appeal by leave of this Court.
3. Mr.Muhammad Zaman Qureshi, learned Advocate Supreme Court appearing for the appellant, has urged that the High Court was not justified in reversing the finding of fact that, according to the duties assigned to the appellant, he was a workman,. Reliance has been placed by him on the case of Airport Development Authority F/M and others Labour Union v. Registrar of Trade Unions and 5 others (1982 PLC 26), the case of Dost Mohammad Cotton Mills Ltd., Karachi v. Mohammad Abdul Ghani and another PLD 1975 Kar. 342 which was upheld by this Court. (This judgment is reported in 1979 SCMR 3(H) and the case of Messrs Sethi Straw Board Mills Ltd: v. Punjab Labour Court No.3, Lyallpur and 2 others (PLD 1977 Lah. 71).
4. It appears that the Labour Court as well as the Labour Appellate Tribunal having found that the appellant had no power of hiring or firing any workman working under him, concluded that the appellant was in fact a workman within the ambit of the provisions of Section 2(xxviii) of the I.R.O.
5. Keeping in view the duties assigned to him. The High Court on the above finding found that the appellant could neither be regarded as a workman under section 2(xxviii) of the I.R.O. Or under the provisions of the Standing Orders Ordinance.
6. Leave was granted to. Consider the questions whether the High Court was justified, on the basis of the material on record, to reverse the concurrent finding on the question of status of the appellant and, whether it has applied the ratio decidendi of the cases decided by this Court on the above question. We have heard Mr. Muhammad Zaman Qureshi, learned counsel for the-appellant-and Mr. Mahmud Zaman, learned counsle for respondent No.3 at some length. `Worker' and `workman' are defined in clause (xxviii) of sno ion 2 of the Industrial Relations Ordinance as folluws.: "(xxviii) `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 terms of employment be express or implied and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) 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.
7. The learned Labour Courts came to the conclusion that the appellant was a `worker' and in reaching this conclusion were largely influenced by the circumstance that as the appellant had no power of hiring or firing any employee he fell within the definition of a `worker' under clause (xxviii) of section 2 aforesaid. Reliance was, in this connection, placed on the decisions in the case of Muhammad Ramzan v. Pu ;ab Road Transport Corporation, Lahore (1973 PLC 355) and I the case of Muhammad Yousuf v. The Manager, Panjnad Textile Mills Ltd., Multan (1973 PLC 358).
8. Mr. Mahmud Zaman, learned counsel for respondent No.3, however, has pointed out that both these judgments were rendered. When an "Explanation" stood added at the end of sub-clause (ii) of clause (xxviii) of section 2 of I.R.O. By the Labour Laws (Amendment) Ordinance, 1972 (Ordinance IX of 1972). The explanation was in the following words: "Explanation.---`Supervisor' 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, take any other disciplinary action against another worker by his own authority."
9. This explanation, however, was omitted by section 3 of the Industrial Relations (Amendment) Act, 1973 (Act XXIX of 1973) but both respondent No. 1 and respondent No.2 had omitted to note this fact.
10. The learned counsel for the appellant, however, has not, therefore, relied on clause (xxviii) of section 2 of the I.R.O. In support of his case for showing that the appellant was a worker. According to him, the appellant was a `worker' because the provisions of clause (i) of section 2 of the West Pakistan Industrial and Commercial Standing Orders Ordinance, 1968 covered his case. The definition given in this clause is as follows: "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."
11. Learned counsel points out that even the High Court had proceeded on this basis as is evident from the following passage in its judgment: "According to the nature of duties performed by respondent No.3, he was predominantly working in supervisory capacity and, therefore, the mere measurement work as an ancillary job, would not bring him within the ambit of `worker' or `workman' as defined in the Standing Orders Ordinance."
12. The question, therefore, which requires determination is whether on account of the nature of duties that the appellant was performing he could fairly be regarded as a worker, because his duties required skill and involved doing of manual or clerical work..
13. No roster of duties is available in the case and, therefore, this question has per force to be answered by reference to the evidence led by the parties.
14. The appellant while appearing as P.W.1 before the Labour Court in support of his grievance petition made a statement in which he explained the nature of duties performed by him. In rebuttal Mr. Shakil Ahmad, Senior Manager appeared on behalf of respondent No.3. The appellant, in his statement, said that "the Deputy Manager used to hand over drawings of the project to me and I was asked to supervise the work being conducted in accordance with the drawings". He further stated that he used to "give out demarcation in accordance with the drawings at the spot and after completion of the work he used to measure the same". This was done to check whether the work had been done in accordance with the drawings and used to "deliver the document to the Deputy Manager after checking the work".
15. Mr. Shakeel P.W. 1 has not denied that the above-mentioned duties were performed by the appellant. He explained that the appellant used to check the bill of the contractor initially in accordance with the measurement of the work and he used also to submit the bill before the Deputy Manager. The measurement of the work was checked by the appellant along with the contractor at the spot to verify the correctness of the bill. If need arose the appellant would get construction completed and get the material issued from the concerned section. In this connection, a mason and helper used to work under him.
16. The question, therefore, is whether a person performing the above duties can be regarded as a "worker" or a "workman" within the meaning of clause (i) of section 2 of the Standing Orders Ordinance or treated as a Supervisor?
17. Mr. Muhammad Zaman Qureshi, in support of his submission that the appellant should be regarded as a "worker" mainly relied on the judgment given by the Sindh High Court in the case of Dost Muhammad Cotton Mills Ltd. Karachi v. Muhammad Abdul Ghani and another PLD 1975 Kar.
18. 342 which was upheld by this Court in 1979 SCMR 304 and the judgment in Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No.3, Lyallpur and 2 others by a Single Judge in the Lahore High Court (PLD 1977 Lah. 71).
19. In the Karachi case, the employee Muhammad Abdul Ghani was Chief Accountant drawing a salary of Rs.1,050 per month but was ordered to act under the instructions of one Mr. Farid Khan, who had been given full charge of the Accounts Section. The Sindh High Court found Muhammad Abdul Ghani to be a worker and the petition filed by his employers Dost Muhammad Cotton Mills Ltd. Seeking leave to appeal against this judgment was refused. This Court observed: "We have examined the chart of duties of the respondent. It is also clear from the statement and his affidavit that he had no supervisory functions at all after he was asked to act on the instructions from Mr. Fareed Khan."
20. In the case of Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3, Lyallpur and others PLD 1977 Lah. 71 the employee was appointed as a caargeman and then promoted as a Shift Chemist and the question arose whether he fell within the ambit of the definition of `workman' given in clause (i) of section 2 of the Standing Orders Ordinance. The learned Single Judge of the Lahore High Court, who decided this case, referred to the duties performed by him as follows: "His duty was to check the cooking of toori and to get its batch out and to refine it. Besides, he also checked its acidity and alkality. He used to do this task with the help of the chemicals with his own hands .......... He also used to test the quality and the strength of tri-sodium phosphate and sodium allominiate. While testing it he used to see the moisture, insoluble matters, total acidity and sodium sulphate:"
21. It was observed that the material before the Labour Court showed that the respondent was doing manual work as a Shift Chemist and that whatever supervisory and managerial control had been delegated to him, that was not an essential part of his duty as a Shift Chemist but that it was an additional duty conferred on him subsequently.
22. Accordingly, the conferment on him subsequently of certain supervisory and managerial powers would not divest him of the character of being a workman.
23. Mr. Mahmud Zaman, learned counsel for the employer (respondent No. 3), in reply, submitted that so far as the judgment in Dost Muhammad Cotton Mills' case is concerned that case was ultimately decided by this Court and this decision was taken on the perusal of the roster of duties of the employees from which it transpired that the essential nature of his work was to act under the instructions of the superiors that he himself had no supervisory functions. And as for Messrs Sethi Straw Board Mills' case, learned counsel points out that it was held therein that the main duties performed by the employee were largely of a manual nature and hence he could be regarded as falling under the category of a workman. Mr. Mahmud Zaman, further submits that this Court has, in two recent judgments, discussed this question quite exhaustively and has laid down the test for determining whether a person should be regarded as a workman or not? In this connection, it has been laid down that the pith and substance of the work that is done should be the governing factor. It will depend on the pith and substance of the work being done which will show if he is a worker or not and the doing of some work which is only incidental is not to be given undue importance. A careful analysis of the work performed by him should be made and on doing so, if it is found that the real work in which he is engaged is manual, clerical or of a skilled character he will qualify as a worker, otherwise not.
24. Learned counsel has, in this connection, heavily relied upon the judgment of this Court in General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and another PLD 1986 SC 103.
25. In this case, the respondent, Bashir A. Malik, was a Shift Engineer in the Hotel Intercontinental, Lahore and the question arose whether considering the work he was doing he could he regarded as a workman or not?
26. As all aspects bearing on this issue have been discussed exhaustively in this judgment including the judgment in Dost Muhammad Cotton Mills' case referred to above, it may be useful to reproduce large extracts from it: "A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of "workman". The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of "employer" then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of "workman", namely, skilled or unskilled, manual or clerical labour need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term "workman" without having to resort to the exceptions.
27. There seems to be no precedent of this Court nor was any cited by the learned counsel, interpreting section 2(i) of the Ordinance, except, however, a decision of the Sindh High Court, Dost Mohammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another PLD 1975 Kar. 342. In this case .The employee was the Chief Accountant in the management of the cotton mill and claimed to be a workman within the meaning of the aforesaid provision of law. The order of the termination of his service was set aside by the Labour Court which held that he was a workman. When the matter went before the High Court in Constitutional jurisdiction, the learned Judge examined the question whether the duties of the Chief Accountant were clerical in nature so as to bring him within the ambit of the definition of "workman". The learned Judge held that the criterion in this behalf was the nature of the work that an employee has to do, which is crucial for determination of his status. The learned Judge then reached his conclusion that the employee was a workman on the ground that he did not fall within the category of "employer". As discussed above this was not the conclusive test. This case came up before this Court and the view taken by the learned Judge in the High Court was upheld. It was held on examination of the chart of duties of the employee, that he was a workman within the meaning of the relevant law. See Dost Mohammad Cotton Mills Ltd. v.
28. Muhammad Abdul Ghani and another 1979 SCMR 304."
29. The learned Judges, after referring to some other cases bearing on the subject went on to add: "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 wrok 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 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.
30. Applying the tests enumerated above to the facts of the present case it will be observed that according to the service contract entered into between the parties respondent No. 1 was employed as a Shift Engineer. The nature of duties according to his own admission in his evidence by respondent No.l included maintenance and rectification of Air-conditioning plant, Boilers, Laundry equipment and Kitchen Equipment as well as repairs of the electrical or mechanical faults. He further admitted that there was one helper, one electrician and one boiler engineer working under his control in each shift. There can, therefore, be no doubt that the main and substantial part of his duties were those of a skilled engineer to be performed by application of his expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour. The learned Single Judge, as pointed out above, reversed the finding of the Labour Court only on the basis that the work ordinarily required to be done by respondent No. 1 also included working with his own hands in an emergency. As discussed above such casual or occasional work involving physical exertion, does not determine the nature of the c:,jties of an employee as a whole.
31. We are unable to agree with the learned Single Judge that mental toil would fall within the expression "manual labour".
32. The view taken above was reiterated by this Court in Muhammad Sadiq v. Punjab Labour Court No. 1 and another PLD 1988 SC 633. In this case the employee was appointed in the Hotel Inter- Continental, Lahore and the question arose whether he was a wor"man under section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968? After an exhaustive examination of the provisions of the I.R.O., the Standing Orders Ordinance and the leading decisions bearing on this question including the judgment in the case of Dost Mohammad Cotton Mills Ltd., it was held as foliows: "We are of the opinion that the real test for determining whether a person falls within the 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 as 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:'
33. In the instant case we find that the essential work that the appellant was doing was to supervise the work of the contractor and see that he was carrying out the work in accordance with the drawings etc. Given to him. No doubt, the drawings of the project were handed over to him by the appellant and he would demarcate the area on which the digging etc. Was to be carried out in accordance with the drawings but he was not the draughtsman or the person who made the drawings. Such a work, no doubt, would involve skill. But the work performed by hin, did not involve any skill nor did he do an;, work of a clerical or manual nature. True enough he checked the Bills and the measurements, but this work was largely of a supervisory nature and not involving personal exertion which are associated with the work done by the workers and the workmen. I- Ierice, the High Court appears to be correct in holding that the pith and substance of his duties was to supervise the work of the contractor and to see that it was carried out in accordance with the drawings handed over to him and the demarcations made. It was work that involved more application of mind and responsibility rather than the doing of some work of a repetitive or routine nature. The appellant, it Was stated before us, enjoyed the rank of a Junior Officer, but there is no evidence on this score. Be that as it may a close scrutiny of his duties reveals that his work did not involve doing work of routine or manual nature but required application of mind and supervision of work done by others. Hence, the High Court was justified in upsetting the concurrent finding of the two Labour Courts below since their decision was not in accordance with law.
34. The result is that this appeal fails and is dismissed hereby but in the circumstances of the case the parties are left to bear their own costs.