DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated March l2, 1973, whereby the learned Labour Court came to the conclusion that the so-called officers were mere clerks and, therefore, they were workmen within the meaning of the definition given under the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) and, therefore the Collective Bargaining Agent could raise demands in respect of these officials. The facts giving rise to the appeal briefly put are these.
2. The respondent-Union informed the appellant Management (hereinafter called the Management), by its letter dated 30th August 1972, that six officers, namely, Messrs (1) S. M. Osman, (2) S. A. Shah, (3) Kafique Ahmed Qureshi, (4)
A.
1. Selod, (5) Mahmood Habib, and (6) Sheikh Ina>at Hassan had joined the Union. The Union also through the said letter raised certain demands relating to these officers. The Management on the lst of September 1972, wrote a letter that the said officers, who were members of the Managerial Staff, were not workmen and, therefore, the Union could not raise any demand on their behalf. The Collective Bargaining Agent, however, served a strike-notice by its letter dated 12th September 1972.
The Management, therefore, was obliged to make an application under section 34 of the Ordinance for an award that the Union could not include the said six officers as tteir members and, therefore, any demand raised by the Union on their behalf was illegal and of no effect.
3. The Union's case was that the said six officers were only dignified clerks. They had no power to dismiss or employ any employee of the Management. They cannot be said to be employers within the definition given m the Ordinance.
4. On behalf of the Management Mr. Husein Abdullah Khimji, Assistant Manager of the company filed his affidavit. He was cross- examined. On behalf of the respondent-Union, Mr. Rashid Muhammad, General Secretary of the Union and the six concerned officers, namely, Messrs (1) S. M. Osman, (2; S. A. Shah, (3) Rafique Ahmed Qureshi, (4) A. I. Selod, (5)
Mahmood 'Habib, and (6) Sheikh Inayat Hassan, filed their affidavits. The learned Labour Court came to the following conclusion :-- "I have gone through all the documents and evidence adduced by the parties. I, however, find that these concerned so-called officials have no power to make appointment or remove or punish any employee or sanction any leave to them and they cannot even operate Bank Accounts, or draw anything under their own signature all alone.
Whatever' they do they always take the prior sanction and instructions from the Manager Incharge of the Management. Jn fact they are upgrade clerks and having duties and functions mainly clerical in nature but their duties are not Managerial as provided by the law. I therefore, hold that they are clerks and come within the definition of the term 'Worker'. They can therefore certainly take part in the Union activities and become the memcers thereof. Their rights accordingly are guaranteed and secured under the law; as such the Union cannot be prevented from representing the said officials and raising demands ia respect of these officials."
5. The application giving rise to the impugned award was made on 25th September 1972. The definition of "workman" as it stood in September 1972, reads 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 expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute include 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. "(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, or take any other disciplinary action against another worker by his own authority). 6. The old definition of workman which was confined to those doing skilled, un-skilled, manual or clerical work, has been abolished, lt has been simply provided that any person, who does not fall within the definition of "employer" is a workman. They must be employed in an establishment or industry for hire or reward either directly or through a contractor. The definition of "workman" includes supervisor or an apprentice. The said definition has further undergone a change. It is not all supervisors, who can claim to be workmen. The exception was made formerly in case of those supervisors who drew wages not exceeding six hundred rupees per mensem. It has now been increased to eight hundred rupees. There was a demand on behalf of persons, who were performing the duties of Jobbers in Textile Mills to be included in the definition of "workman.
These persons used to supervise the work of ordinary workers below them. There was a demand on behalf of the Trade Unions to include such supervisors in the definition of "workmen". The Legislature seems to have accepted the request of the Trade Unions and amended the definition of "workman", so as to include supervisors. By the inclusion of supervisors in the definition of "workman** it became too wide. Every supervisor, however, highly paid he may be can be claimed to be a workman. The Legislature with that view, in the first instance, put a limit of rupees six hundred per mensem on the wages of supervisors so as to be called workmen. Later on, the limit had been increased to rupees eight hundred per mensem.
7. In the first instance, what has to be determined is as to whether the six officers on whose behalf the Union made a demand can be said to perform supervisory duties or not. It is not necessary in view of the admission made by the officers themselves, who have filed their affidavits, to deal in any detail with the question as to whether these six officeii were performing supervisory duties or not. Mr. Sheikh Inayat Hassan stated, while enumerating his duties, in his affidavit as under :-- "Checking the work done by the subordinates before passing to the superiors for approval and signatures. 8. Similarly, Mr. Syed Ahmed Shah also stated in his affidavit m under :-- "Checking the work done by the subordinates before passing to the superiors for approval and signature. 9. In this connection, the General Secretary of the Union, Mr. Rashid Muhammad, in his cross-examination, admitted that :-- "The duties of these six officers is interchangeable."
10. On behalf of the appellant Management, Mr. Husein Abdullah Khimji, Assistant Manager for Pakistan of the appellant-company, filed bis affidavit in support of the contention of the Company that these six officers were holding Managerial positions and they were not workmen. He stated that these six officers had Managerial and Administrative powers in relation to the departments in their 'charge. They had full authority to manage and run their own departments. For the purposes of this appeal, it is not necessary to go into the question as to whether these six officers can be said to be employers within the meaning of the definition of "employer" given in the Ordinance. It would be sufficient to consider as to whether they are supervisors or not. In this connection, the high salaries that these officers were drawing is an additional circumstance to support the conclusion that they are performing at least supervisory duties. No Firm, however, big it may be, will pay such high salaries for merely doing clerical work. Mr. Syed Ahmed Shah admitted in his affidavit that he was drawing a salary of Rs.
2,005 per month, while Mr. Rafiq Ahmed Qureshi was drawing Rs. 1,900 per month; Mr. Ahmed I.
Selod was drawing a salary of Rs. 1,825 per month; Mr. Sheikh Inayat Hassan was drawing Rs. 1,525 per month Mr. Mahmood Habib was drawing Rs. 1,525 per month and Mr. S. M. Osman was drawing Rs, 1,560 per month. I would hold that they were at least exercising supervisory powers over their staff.
11. The important question in this appeal to consider is the 'Explanation' to the definition of "workman". In order that these six officers may claim to be supervisors, they must establish that they were immediately above the lowest level of workers in the establishment. In this connection, reference may be made to 'Queensland Insurance Company Limited, Karachi Branch, Staff Agreement', Exh.
5. This provides the Scales of Pay to be paid to various grades. It runs as under :-- "The following grades and scales of pay shall apply to the respective Categories :-- Rs. 250--24-- 490--30--640. 175-16-415. 135--12--255.Grade 'A' Head of Departments-- Scale Grade *B' Assistant including Head Typist > Grade 'C' Upper Clerical and Typist* 90-8--170. 40-4--80--5--110. Grade 'D' Clerical and Telephonist Scale Grade 'E' Peons ,, l2. The Staff Agreement was modified by another Agreement between the Union and the Management dated 30th April 1971, whereby the scales of pay ran as under :-- "Grade 'A' 615-40--975-45--1200 Grade 'B' 400-30--760-35--970 Grade 'C' 325 --20--405--25--630 Grade 'D' 235--20--395--25--520 Grade 'E' 150--8--182--10--282--12--330 13. Rs.
What is necessary to emphasise is not the scales of pay, but the Grades. Admittedly, the persons in Grade 'A' are Heads of their Departments. Mr. Rashid Muhammad, the General Secretary of the Union admitted in his cross-examination as under :-- "They were promoted from their post of Head of Department, i.e. Clerk Grade 'A' " The reference is iu respect of the six officers, who were promoted from Grade 'A' to the present position, which they are holding.
14. Mr. Obaid-urrehman, the learned Advocate for the respondent contended that the respondents were immediately above the clerks Grade 'A' and, therefore, they are covered by the 'Explanation' of supervisors given in the definition of "workman", already reproduced. There is no force in this contention. What has to be established is not that these six officers are above Grade 'A', but that Grade is the lowest level of workman. It would appear from the Staff Agreement and the Settlement dated 30th April 1971, that there are as many as five grades. At least there are four Clerical Grades, i.e. 'A', 'B', 'C' and 'D\ At any rate, all these six officers stated in their affidavits that they were appointed merely as clerks. Mr. S. M. Osman, admitted in Paragraph 1, of his affidavit that he was appointed as a Cashier by Messrs Sheriar F. Irani & Company and thereafter, his services were transferred to the present company in the same capacity in 1950. Mr. Osma n further stated that he was immediately above the clerk Grade 'A'. Similarly, Mr. Syed Ahmed Shah stated in his affidavit that he was appointed as a Fire Clerk in 1950. Mr. Rafiq Ahmed Qureshi stated that he was appointed as an Accounts Clerk in 1954; Mr. Ahmed I. Selod admitted that he had been appointed as a clerk in 1952; Mr. Mahmood Habib alleged that he was appointed as an Accounts Clerk in 1952; and Mr. Syed Inayat Hassau was appointed as Fire Clerk m 1955. All these officers stated that at present they were above the clerk Grade 'A'. It is noteworthy that none of these six officers, who had filed their affidavits, stated that Grade 'A' was the lowest level of workers. In fact, the admission made by them in their affidavits is sufficient to establish that they were not above the lowest level of workers. In whatever clerical grade they may have been appointed either 'B', 'C' or 'D', they were not appointed as Heads of Department. It follows, therefore, that besides the Heads of Departments there are also if not three Clerical Grades below Head of Department, at least one grade to which all these officers were oiigi- nally appointed as Clerks, Cashier, Fire Clerk or Accounts Clerk. I would hold that the Heads of Departments are not the lowest level of workers. The lowest grade of workers are clerical staff of Grade 'D\ In this connection I may also make a reference to the reply statement filed by the General Secretary of the Union. It is stated in Paragraph 6 of the Reply Statement as under "...............
Strictly speaking they are not even performing the supervisory functions. They were employed individually as Clerks and in due course of time after long service they were promoted to higher grade."
15. This admission also supports my conclusion that the Heads of Departments were not the lowest level of workers. There are other grades also. I would hold that the sx officers, on whose behalf the Union raised certain demands, are not workmen within the meaning of the definition of "workman", reproduced in Paragraph 5, above.
16. While disposing of this appeal, I must observe that the impression I got during the course of arguments and while negotiations for settlement were going on out of Court between the parties that these six officers were driven to adopt this method, though un-becoming the status or position that these officers are occupying in the company. It would appear from the letter dated 31st December 1969, Exh. 10/2, by the Manager for Pakistan, addressed to Mr. Osman that the Management had promised some adjustment in the Provident Fund of the officers, which was receiving the consideration of Head Office. These six officers were pressing for their scales and other facilities, ever since they were appointed as officers. The Head Office had not cared to decide their demands one way or the other. It is now time in the interest of belter and efficient working of the Company that the Head Office was to expeditiously dispose of the request made by the officers, particularly in respect of their grades.
The request for fixation of grades does not appear to be at all un-reasonable. With these observations, I would allow the appeal and set aside the award of the learned Labour Court.