DECISION These are two appeals against an award dated September 4, 1973, given by the learned Presiding Officer of Labour Court No. I, Karachi. I propose to dispose of these appeals by a common order, as the main point required for consideration is as to whether the respondent, Mr. Ali Muhammad Moosa is a workman or not. The facts giving rise to the appeals briefly put are these. 2.
The respondent, Mr. Ali Muhammad Moosa, was given termination letter dated 10th April 1972, which he received on 12th April 1972. He was admittedly, working at Jaranwala, District Lyallpur, as an Accountant at a pay of Rs. 1,300 per month. He started his career with the Appellant Company on 14th July 1953 as a Cashier, but later on was promoted as an Accountant when his services were terminated. On 28th January 1972, he was directed by appellant No. 1, to report for duty at Karachi Head Office. He reported\ at the Head Office on lst February 1972, but he was told that appellant No. 1, was out and, therefore, he could not be assigned any work. The respondent again reported for duty on 11th February 1972, with the same fate as earlier. Ultimately, he received a letter dated 10th April 1972 on 12th April 1972, terminating his services. The respondent made an application on 3rd May 1972, under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for recovery of Rs. 43,808.00 on various items, which included Gratuity for 19 years which alone worked out to Rs. 24,700.00.
3. Mr. Mahmood A. Ghani, the learned Representative for the appellants, raised three contentions before me, namely, (1) that the respondent was not a workman, (2) that the application under section 25-A of the Ordinance was not maintainable as it was prospective, and not retrospective, and (3) the Court at Karachi had no jurisdiction as the letter terminating his services was issued from Jaranwala, District Lyallpur. It would be useful to dispose of Contention No. 3, alongwith Contention No. 2, as they are interdependent. So far as the question of jurisdiction is concerned, it depends as to whether his services would be deemed to have been terminated at Jaranwala by letter dated 10th April 1972, which admittedly, the respondent received on 12th April 1972. It was a Registered Acknowledgement Due Letter dated 10th April 1972. It is important to note that the respondent was asked to collect his dues from the Accounts Department of the appellant's Head Office at Karachi within two days from the receipt of the letter. If he was to receive the dues within two days of the receipt of the letter, it meant he could do so up to 14th April 1972, at Karachi. There is no evidence that the respondent collected his dues within two days of the receipt of the letter. The important point to note is that under the letter terminating his services, he was given option to collect his dues within two days of the receipt of the letter at Karachi, i.e., up to 14th April 1972. Section 25-A of the Ordinance was brought on the Statute Book on 13th April 1972. The application under section 25-A of the Ordinance, therefore, was maintainable and the Court at Karachi had jurisdiction also as the respondent was called upon to' collect his dues at Karachi. I would hold that the application under section 25-A of the Ordinance was maintainable and that the Court at Karachi had jurisdiction to dispose of the application, and also because the respondent was transferred to Karachi when his services were terminated on 10- 4-1972.
4. The only point that now requires consideration is as to whether the respondent, Mr. Ali Muhammad Moosa, is a workman or not. On this issue, the finding of the learned Labour Court is brief. It runs as under :-- "As far as the question whether the applicant was a workman or not, the very nature of his duties clearly indicates that he was a workman as defined under section 2 (xxviii) of I. R. O., 1969. The learned Representative for the respondents has tried his best in cross- examination of the applicant to depart him from the definition of workman but nothing substantial has come out to suggest that he was not a workman. I, therefore, overrule this objection."
5. On the face of it, the above finding is too casual. It does not discuss the evidence on the record. On the date the cause of action arose, i. e., 14th April 1972, the definition of workman under the Ordinance was 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 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)."
6. Admittedly, the respondent was drawing a salary of Rs. 1,300.00 per month when his services were terminated on 10th April 1972. The only question that requires consideration is as to whether the respondent was appointed in a supervisory capacity or not. The word "or" ini# section 2{xxviii)(b) of the definition is disjunctive and not conjunctive. Inj his cross-examination, the respondent stated as under :-- "J was Accountant and had drawn Rs. 1,300 per month. Sadiq and Qasam were Assistant Accountants and Yousuf was the Cashier. Cashier is under the Accounts Department. There were other junior and senior clerks working under the Accounts Department. I was not incharge of accounts and cash but General Manager was the incharge but he was not an 'Accountant. I used to prepare the bills for purchase and sale under the orders of the General Manager. On 1-2-1969 the office order of the company showed his duties exclusively as an Accountant. I used to sign only the bills and, the entries were made by others. There were about 50 workers in the Accounts Department."
7. On this admission can it be said that the respondent was a workman? I have come to the conclusion, on the admission made by the respondent, that he was performing supervisory duties and, therefore, was not a workman. Mr. Ali Amjad, the learned Representative for the respondent, contended in the first place that the respondent was not supervising the work of his subordinates, as he used to prepare bills for purchase and sale under the orders of the General Manager, who was Incharge of the Accounts Department. There is no force in this contention. It is not the case of the respondent that the General-Manager was an Accountant. The appellant Company would not engage an Accountant at a salary of Rs. 1,300.00, if the work was to be done by someone else. In the second place, Mr. Ali Amjad contended that the Court should draw a presumption against the appellant in not producing the documents which could have easily established the nature of duties of the respondent. This presumption can be raised only under section 114(G) of the Evidence Act. The presumption under section 114(G) of the Evidence Act would arise only if the appellant was called upon to produce any document, which it failed to produce. The word "withhold" in Illustration G, is important. One cannot be said to withhold unless he is required to produce. In this case, there is no evidence that the appellants were ever called upon to produce any document and, therefore, the presumption under section 114(G) of the Evidence Act cannot arise. In this connection, the evidence of Mr. Qasim, Administrative Officer of the appellant-company is also noteworthy, specially paragraph 5, of his affidavit. It runs as under : -- "That as an Accountant the applicant was Incharge of Accounts and Cash, as also care of purchase and sale sugar godown and Excise Branch. The applicant had three Assistant Accountants and several Accounts Assistants working under him. Besides this, the Purchase Officer, Godown Keeper, several Senior and Junior Clerks who were all working under him. In fact the applicant had about 50 employees under him over whom he exercised control and supervision. His duties as such were preliminary of managerial and executive nature. It is denied that the General- Manager was Incharge of the Accounts." It may be stated as a matter of fact there is no cross- examination in respect of the statement in paragraph 5, reproduced above.
8. For the reasons given above, I would hold that the respondeat, Mr. Ali Muhammad Moosa is not a workman and, therefore, the award of the learned Labour Court is set aside. In the result, Appeals No. KAR-695/73 is allowed and Appeal No. KAR-702/73, is dismissed.