DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. 1, Karachi, dated January 30, 1973, whereby the leamed Labour Court ordered the respondent to be re-instated and to get all bis legal'dues permissible under the Rules. The facts giving rise to the present appeal, briefly put are these.
2. The appellant was appointed on 12th July 1971, as Incharge of the Printing Section in the Organization of the appellant-company. It may be mentioned that the respondent avoided to mention his designation in his application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). He was appointed as Incharge of the Printing Section which is mentioned in Exh. R-l, the Appointment Letter of the respondent. He was appointed on a salary of Rs. 580.00 per month in the grade of Rs. 500--40--900. He was to remain on probation for a period of six months. The services of the respondent, however, were terminated by the appellant on 30th October 1971, on the ground that his work was not found to be satisfactory.
Thus the respondent remained in service of the appellant for a period of 3 months and 18 days only. The respondent made an application under section 34 of the Ordinance on 3rd May 1972, challenging the order of termination on tne ground that he was a permanent workman of the appellant-company and that his services could not be terminated without complying with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). The learned Labour Court came to the conclusion that tbe respondent having served for more than 3 months on probation, he became a permanent employee of the appellant. The learned Labour Court also overruled the contention of the appellant that the application under section 34 of the Ordinance was not maintainable and that it was beyond time.
3. Mr. Zamirul Hasan, the learned Representative for the appellant, contended that the respondent was not a workman within the meaning of the definition of "workman" given under the Standing Orders Ordinance and, therefore, tbe provisions of Standing Orders Ordinance were not applicable to the respondent. The workman has been defined under section 2(0 to mean : **.... any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical labour for hire or reward."
4. The learned Labour Court observed as under t-- "Mr. S. I. Qadri, respondent's witness, in his cross-examination has made it very clear that the main job of the applicant was to prepare estmates, to get designs and blocks prepared, to prepare quotations, to give delivery of goods or to work out tbe size of the paper for cutting. All these duties make the case of the applicant to fall within the definition of the workman."
5. Mr. Qadri, it seems to me, in cross-examination admitted everything that was put to him. The true picture of the respondent's actual functions can be clearly found out from the admitted documents on the record. The"4 nature of the work performed by the respondent and otlrr circumstances would be the determining factor as to whether tl e respondent was performing duties of a skilled manual labour or clerical labour. The first document is Exh. R-l. It is the Appointment Letter of the respondent. The respondent had accepted the terms embodied therein under his signature dated 12th July 1971. The relevant portion of this letter runs as under :-- ''With reference to your application dated 7th July 1971 and the subsequent interview with us, we are pleased to appoint you as incharge of the Printing Section in our Organisation with effect from Monday, the 12th July 1971 on the following terms and conditions :-- (1) You will draw consolidated salary of Rs. 580 (Rupees five hundred eighty only) per month in the grade of Rs. 500--40--900. (2) .
(3) . (4) . (5) . Your duties would be production planning and supervision of the Printing Section as well as canvassing for and obtaining printing orders. If the above terms and conditions are acceptable to you, you are requested to sign the duplicate of this letter, signifying your acceptance and report for duty at our Karachi Factory (D/58, S. I. T. E., Estate Avenue, Karachi), on Monday, the 12th of July 1971."
6. Printing Section of the Company.
7. The respondent in his cross-examination stated as under :-- "My duties were Production Planning, Supervision of Printing Section, to collect orders, preparation of mills estimates It is not true that I6 workmen were employed under my charge. In fact 26 workers were working under me I used to requisition the papers from the company stores. Sometimes I used to buy myself. No paper was issued from stores but without my permission. It is correct that my approval was necessary when I was present. I see Exhs. R-7 and 8.
These are requisition slips and they bear my signature. All the material used to pass under my signature I see Exhs. R-9 and 10. They bear my signature."
8. Exh. R-9, is Supply Voucher and it is signed by the respondent for Factory Manager. Exh. R-10 is also Supply Voucher. It is signed by the respondent as Factory Manager. The respondent admits his signature on Exh. R-ll and Exh. R-12, which are estimates submitted by the respondent on behalf of the Company. Preparation of estimates is a very responsible job. If the estimate is too high, nobody will place orders. If the estimates It is clear from the terms of the Appointment Letter that tne respondent was the Head or Incharge of the Printing Section of the appellant's Company. He was to prepare the scheme for production and supervise the Printing Section. He was also required to do canvassing in order to obtain Printing Orders. On the face of it, these written duties, which were assigned to the respondent, cannot be said to be within the sphere of a clerk or a skilled manual labourer. The respondent had accepted the terms of the Appointment Letter. In this connection, the circumstance that the starting salary of the respondent was Rs. 580 per month cannot be ignored.
No clerk would start his career with a salary of Rs. 580.00 per month in the grade of Rs. 500--40--
900. The salary is comp ble with the inference that the respondent was appointed as an Incharge of are low, the Company will suffer loss. This job is highly responsible one and can be entrusted only to an officer who has the confidence of the Company.
9. The respondent, Mohammad Aqil stated in paragraph 2, of his affidavit as under :-- "That I was a workman throughout the period of my employment and that my main duties were to do clerical and skilled labour i.e. proof reading, to prepare estimates and Bills and to deliver goods, to prepare quotations, to work out the required size from the large sheets of papers, to have designs and blocks prepared, to work out the cost of paper, designs, blocks, composing, printing, and binding etc."
10. It is true that Mr. Qadri for the appellant, in cross-examination, repeated the same what was stated by the respondent in paragraph 2, of his affidavit. The Court, however, has not to base its finding only by what is stated by the respondent in Paragraph 2 of his affidavit or what is stated by Mr. Qadri in cross- examination. Only that part of Mr. Qadn's statement should not be taken note of which might to some extent support the respondent, but also that part of the cross-examination which does not support the respondent. Mr. Qadri, for instance, stated that the respondent, could recommend and also appoint any worker and he could promote anylc worker. To my mind the Appointment Letter which assigns the duties of| the respondent gives the true picture of the character of the work that the respondent was to perform. I have come to the conclusion, relying on the Letter of Appointment, that he was to be the Incharge of the Printing Section of the appellant's Organization and to supervise the Printing Section and to look after the Production. It was only in the performance of his duty to obtain Printing Orders that he had also to prepare bills, to prepare quotations and to deliver goods. While planning, he had to work out the size of the sheets of paper, to get designs of the blocks prepared. I have come to the conclusion that these duties were only ancillary to the main duty of the respondent which was to supervise Planning and Production.
11. Mr. Zamirul Hasan, the learned Representative for the appellant, cited certain authorities, including that of the Supreme Court of Pakistan, in support of his contention that the Court should look to the real nature of work to be performed by a workman and not to the ancillary work that he may be performing. In this connection, he relied on the case of Bata Shoe Company Limited, Lahore (1). It was observed in that case as under "So far as the Foreman Is concerned, he is a person holding supervision and Management in a factory. He cannot, therefore, be held to be a workman. The case of a Foreman came up in C. W. Raymond v. Ford Motor Co. of India Ltd. The person concerned was employed as a General Assembly Foreman and according to the instructions given to him by his employers, it was his duty to get the work of repairs done by his staff and to complete the repairs or adjustments found necessary after inspection. It was contended on his behalf that he was a "workman" as defined in the Act as he had to do skilled manual work in checking brakes and traffic indicators and focussing of lights of motor cars. He was described in the factory pass as "Supervisor of Inspection and repair operations". It was held by the Appellate Tribunal that he was not a workman as he was 1971 PLC1(i) not employed to do any manual or clerical work for hire or reward. The more fact that he had to do something by his own hands by way of checking or testing work done by other workmen did not make his work manual work within the meaning of this clause. l2. Another case that was cited by Mr. Zamirul Hasan was that of Chairman, Brooke Bond (Pakistan) Limited, Karachi (1) in which Akram, J., while examining the definition of "workman observed as under :-- "A 'workman' is employed in an industry to do skilled or unskilled work which is 'manual or clerical*. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same.** 13. Mr. F. M. Azad, the learned Representative for jthe respondent, also cited certain authorities. The sum and substance of these authorities comes to this that the Court has to look to the character and nature of the work in order to determine as to whether they are skilled or supervisory. 1 accept the proposition enunciated by Mr. Azad and hold that the respondent's main duties were that of supervision, planning and production. These duties cannot be said to be matter of routine work. In performing D these duties, no doubt, the respondent had also to do certain routine work, but these were only ancillary. I would hold that the respondent was not a workman as defined under the Standing Orders Ordinance.
14. If the respondent, as I have held, was not a workman, the provisions of the Standing Orders Ordinance would not apply. The appellants would be within their right to fix the respondent's probationary period to be six months, instead three months as provided under the Standing Orders Ordinance. If the appellants had the right to offer the duration of probation to that of six months, the respondent cannot be said to have become permanent employee during that period. His services could be terminated by the appellant, if he was not found to be up to the mark. I would, therefore, allow the appeal and set aside the award of the learned Labour Court. (1) 1969 PLC 616