1. ' JAVID IQBAL, J.---The present appeal arisen in the following circumstances. Abdul Ghaffar respondent No,1 was employed in 1953 by the Karachi Shipyard and Engineering Works Limited (appellant) as a workman in the capacity of a welder/cutter etc. In the ship repair section. On 17th November, 1958 he was promoted as assistant chargeman. Subsequently, on 31st August 1972 he was further promoted as assistant foreman. On 29th December 1975 he was charge-sheeted on the ground that he had misappropriated funds and thereby caused a loss of Rs,60,000 to the appellant. An inquiry was accordingly held and he was dismissed on 12th July 1976 as a result thereof. At the time of his dismissal he was assistant foreman drawing salary amounting to Rs,1,108 p.m. Against his dismissal respondent No,1 filed a grievance application under section 25-A of the Industrial Relations Ordinance, 1969 before the Sindh Labour Court No, V. The case was subsequently transferred to the Court of respondent No,2 (Second Sindh Labour Court Karachi) which allowed the application vide order dated 19th May, 1969 holding that respondent No,1 was workman and rejecting the plea of the appellant to the contrary effect. It also held that the inquiry had not been conducted against him in accordance with law. The order of respondent No,2 was challenged by the appellant before Sindh Labour Appellant Tribunal (respondent No,3) which vide its order dated 27th September, 1979 accepted the appeal holding that respondent No,1 was not a workman and therefore grievance application under section 25-A of the Industrial Relations Ordinance, 1969 was not competent although it was of the view that the inquiry had not been properly conducted against respondent No,l. Thereafter, respondent No,1 challenged the order of respondent No,3 by filing a Constitutional petition on 17th November 1979 which was accepted vide order of High Court of Sindh dated 16th October 1984.
2. Leave to appeal was granted to appellant in the instant case on the grounds firstly that respondent No,1 was mainly employed to do supevisory work which did not ordinarily require manual or clerical work and that in this background the test for determining the question whether he was a workman was the nature of the duties entrusted to him constituting the essential nature of his work and not the work which was ancillary or incidental to his employment; and secondly that the High Court was not competent to substitute its own finding for that of statutory forum on a question of fact in the A exercise of its Constitutional jurisdiction.
3. ' Learned counsel for the appellant argued that the nature of the work entrusted to respondent No,1 by the appellant at the time of his dismissal has been elaborately described in the order of respondent No,3 which has been reproduced in the impugned judgment of the High Court and which is as follows:- "It is an admitted position that Abdul Ghaffar immediately before his dismissal from service was drawing emoluments amounting to Rs,1,108 per month. Furthermore, he was holding the post of assistant foreman. The post, as admitted by Abdul Ghaffar himself in his evidence was higher than the post of chargeman, who in fact was under him. He has further admitted that a chargeman was supervisor of works and the assistant chargeman, boiler makers, Khalasies, welders, gas cutters, supervisors and other categories of workers work under him. It will thus be seen that a large category of workmen work directly under the control of the chargeman who is himself under the control of assistant foreman. In view of his superior status and the different categories of workmen working under him it would ordinarily be quite unnecessary for the assistant foreman to work with his own hands. No doubt on specific occasions where the nature of work is found to be extremely complicated, the assistant foreman may be required to show the workmen under him how a particular job is to be done, or even work with his hands, but that would not in my opinion be the normal nature of his duties which are basically supervisory in nature. Looking to the emoluments of Abdul Ghaffar the different categories of workmen working under him and the nature of his main duties, I am of the opinion that he cannot be considered to be a `workman' for the purpose of the Standing Orders as his main function and duties cannot be considered to be the doing of manual or clerical work, whether skilled or unskilled."
4. ' It was submitted by learned counsel that admittedly the right has been conferred on a workman by clause (iii) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
5. Ordinance, 1968 to move a grievance application under section 25-A of the Industrial Relations Ordinance, 1969, if he was dismissed. The grievance application under section 25-A of the 1969 Ordinance would not be competent if the applicant by the nature of the duties assigned was not workman in accordance with the definition provided in section 2(i) of the 1968 Ordinance which runs 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.
6. ' It was argued by learned counsel that the nature of the duties of respondent No,1 was supervisory and therefore he could not be considered as a workman. In this connection reliance was placed by the learned counsel on 1971 LLC 125 (The Workers of Bata Shoe Co. v. Bata Shoe Co. Ltd. And another). In that case it was held that a foreman holding supervision and management in a factory cannot be held to be a workman and that mere fact that such person was doing something with his own hands of checking or testing work done by other workmen would not make his work manual within the meanings of 'workman'. The principle laid down by the Supreme Court in this judgment, it was submitted, had been followed in numerous other cases e.g. 1985 SCM R 1511 (Ganga R. Madhani v. Standard Bank Ltd.); PLD 1986 SC 103 (General Manager, Hotel Intercontinental, Lahore etc. v. Bashir A. Malik etc.). In the latter case the Court held as follows:- "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 work 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 that 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 defmition is attracted."
7. ' Reliance was also placed on PLD 1988 SC 180 (Security Papers Limited v. Sindh Labour Appellate Tribunal and another) and PLD 1988 SC 633 (Muhammad Sadiq v. Punjab Labour Court No,1, Lahore etc.). In the latter case it was held that from the evidence on record the duties of the employee at the relevant time were of a supervisory nature and since the nature of work performed by an employee was to be considered as a true criterion as well as the deciding factor for determining as to whether or not he was a workman, 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 in accordance with the facts on record.
8. ' Learned counsel for respondent No,1 conceded that the principle laid down in the cited judgments by the Supreme Court was correct but he attempted to argue that in accordance with the facts on the record respondent No,1 was a workman and that the nature of his work was not supervisory.
9. However, when confronted with the description of the nature of the duties ' entrusted to respondent No,1 as mentioned in the order of respondent No,3 he was not in a position to disagree therefrom.
10. In the judgments cited above and numerous other judgments the principle is well established that if the functions performed by the employee were of a supervisory nature he would be excluded from the definition of workman. In the present case the duties entrusted to respondent No,1 were admittedly of supervisory nature and therefore respondent No,3 rightly held that respondent No,1 did not fall within the definition of 'workman' and that consequently his grievance application under section 25-A of the 1969 Ordinance was not competent. But we note that the High Court decided the matter against the appellant by mainly relying on a few High Court judgments and the above- cited Supreme Court judgments had not even been brought to the notice of the learned Judges.
11. We also note that the High Court fell into error by substituting its own finding for that of the statutory forum on a question of fact in the exercise of its Constitutional jurisdiction when it arrived at the conclusion that apart from doing manual work with hands by way of guiding the personnel working under him, he used to supervise their work which being of technical nature required skill as well as maunal labour on the part of respondent No,1. The finding of fact in the case of respondent No,1 was, which has not been denied by either of the sides, that he was assistant foreman and different categories of workmen were working under him. Therefore it was unnecessary for him to work with his own hands but he as assistant foreman could be required to show the workmen under him how a particular job was to be done and that in this connection if he worked with his own hands it would not be the normal nature of his duties which were basically supervisory in nature.
12. ' In the light of the above discussion since respondent No,1 has rightly been held to be not a 'workman' by respondent No,3, his grievance application under section 2.5-A of the 1969 Ordinance was not maintainable. As a result the impugned judgment passed by the High Court is hereby set aside and this appeal is allowed with costs.