DECISION This appeal calls in question the order of the Labour Court whereby the petition under section 25-A was allowed and the petitioner was reinstated in service with full back benefits. The circumstances in which it has arisen in brief are as follows:- The petitioner was appointed by the respondent-company on 26-9-1988 as a Quantity Surveyor.
According to the terms of appointment he was to be on probation for a period of six months. It appears that the respondents in association with NEDECO Netherlands Engineering Consultants were then working as Consulting Engineers at the Korangi Fisheries Harbour Project. The respondents had to provide local expertise and technical know-how where as Nedeco had to provide foreign expertise. The actual work of construction was however with M/s. Mowlem International Limited. While working at the Project the petitioner's services came to be terminated on the 3rd of July, 1991. The letter of termination reads as under:- " This is to inform you that we are unable to continue your service with immediate effect.
You are requested to obtain one month's salary is lieu of notice and obtain all other amounts due to you on production of a clearance certificate from the Resident Engineer of Nedeco, Korangi Fisheries Harbour Project."
2. He had served the grievance notice on 27-8-1991 which was duly replied to. As this did not satisfy him he had filed the petition before the Labour Court.
3. The petition came to be resisted. It was stated therein that the provisions of West Pakistan Industrial and Commercial Employment Standing Orders) Ordinance, 1968 were not applicable as the number of the employees of the respondent at the Fish Harbour was below 20. The petitioner who was a diploma-holder in Engineering was dealing with drawing plans certifying bills of quantity etc. And his duties did not make him a workman.
4. The petitioner was his own witness and Anees Ahmed Administrative Officer of the respondent appeared on behalf of the respondent.
5. The Labour Court found all the material issues in favour of the petitioner and allowed the petition with back benefits culminating in this appeal.
6. It was contended by Mr. Muhammad Tasneem learned counsel for the appellant that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 would not be applicable to the respondent as the number of their employees at the Fish Harbour was below 20. The argument is misconceived because the respondent-company had as assignment with the Fisheries Harbour Authority as it could have an assignment anywhere else. Its employees belonged to and were a part and parcel of the parent body i.e. M/s. Techno Consultants. The number of the employees at the Head Office as stated by the respondent is 77 and more and even Anees Ahmed could not must muster courage to deny the number of 55 as put. All that he had to say was that he was not sure of it.
7. Mr. Tasneem had no authority in support of the proposition advanced by him. He sought support from the definition of "commercial establishment" as to be found in the Standing Orders Ordinance, 1968. Mr. Anees Ahmed also could not deny that the respondent had worked for three months at the Head Office before he was deputed at the Harbour. As an employee of the appellant he could be withdrawn from there and sent anywhere else. To my mind the question for consideration would be as to what was the number of the employees of the appellant and certainly it is beyond 20. So, nothing will turn up on that.
8. The next question for consideration would be about the status of the respondent. All that he had to say in the petition was that his work was "manual and clerical" as the applicant personally used to perform the work of different measurements, personally checking from his hands and clerical work of different types as the applicant did these types of work for the respondents all the time:'
9. In his affidavit he added that he had no supervisory powers nor the authority to hire and fire anybody in the establishment. Nor it was open to him to grant leave or issue show-cause notice etc. He went on to say as follows:- "I am Quantity Surveyor by designation and my nature of work was to prepare/counting/maintaining/writing/calculating/ maintain--ing survey report and checking the materials, length, four corner, (sic) materials from my own hands and physical exertion and mental work was performed by me during my entire tenure of service. It is incorrect that I was responsible for drawing plans but it was also my duty to calculate the measurement and quantities of material in accordance with drawing plans. It is also denied that I certified and recommend bill of quantities but in fact I was calculated and only check the properness and actual calculation of bill of quantities for fetching the technical and clerical mistakes/errors. It is incorrect that I overseas the specification and description of various items of work which the contractor performs. In fact I was required by the respondent to satisfy and performing the work of construction technically with mental exertion like a participant of construction work--------------"
However, in the cross-examination he had to admit that the Techno Consultants were rendering only technical advice at the Project and not doing any construction job. He had also to admit that he "used to study drawings and check the bills. What is more he admitted that he used to perform all the work job as mentioned in para. 2 of the Reply Statement which has been reproduced here earlier.
10. On the other hand Anees Ahmed detailed his duties in the following words:- "(i) The applicant being Diploma-Holder in Engineering was responsible to study the drawings/plans. He certifies and recommends bill of quantities;
(ii) He oversees the specifications and description of various items of work which the contractor performs;
(iii) He had to examine monthly bills/invoices submitted by the contractor and verifies the actual quantities, rates and recommends payments as per approved cost;
(iv) He examines rate analysis of items of work prepared by contractor and recommends rates;
(v) In his discretion inspected the works at site, directed the Surveyors to provide levels and supervise their work. He controlled and checked the inventory of stock at site. He had to make recommendations for smooth functions of work at site by the contractor."
11. The agreement between Korangi Fisheries Harbour Authority and Netherlands Engineering Consultants working in collaboration with the appellant has been placed on the record. It clearly shows that the appellants have nothing to do with any construction activity. That is with M/s. Mowlem and the services of the consultants have been enumerated therein :- "(1) The Consultants will be responsible for the supervision of project works in accordance with recognized International standards and practices for quality control on works.
(2) Examination, review and approval of the contractors planned constriction schedule, in conformity with the contract agreement Documents.
(3) Examination and approval of the contractor's proposals for construction of works.
(4) Exercise resident site supervision on the works through qualified, competent and experienced Engineers and staff.
(5) Monitoring the progress of works by preparing charts at the end of each month comparing the anticipated progress with actual achieved.
This comparison will be included in the monthly progress report to be submitted to KFHA with explanations on stoppages or delays in the implementation of the project, giving details of measures recommended to avoid any future delays as well as possible measures to recover any lost time in the implementation of the project.
(6) Such on site inspection of the work including work to be covered up as the Consultants shall consider necessary to check and report on performance of the Contractor and execution of the project in accordance with contract documents, particularly the specifications and sound engineering practices.
(7) Checking of the Contractor's surveys, soundings, setting out of works and detailed measurements necessary for satisfactory construction of the works and for interim and final payment certificates to formats agreed with and approved by KFHA.
(8) Preparation of any detailed construction drawings and, designs, in addition to those already prepared, as may be necessary for the Contractor to execute the Project.
(9) Carrying out in Pakistan, as may be necessary, the inspection and testing of any materials, manufactured products, electrical and communication equipment, plant and machinery for the project in compliance with accepted international standards and practices and furnishing requisite certificates and reports to KFHA.
(10) Ascertaining and recommending to KFHA the suitability or otherwise of manufacturers and sources of machinery and equipment, and materials that the contractor propose to use to construct the work, either for temporary works or for incorporation in the permanent works.
(11) Checking and recommending to KFHA the adequacy and authenticity of all certificates, insurances, performance bonds, indemnities, ownership of plant, etc. And any other requirements for which the contractor is liable under the Conditions of Contract.
(12) Recommending to KFHA on any changes in plans and specifications which may prove necessary or desirable during the course ' of constriction, together with production of the necessary revised plans, design calculations, specifications etc. For any changes which KFHA may approve.
(13) Advising KFHA on possible ways to reduce project expenditures and advising the Contractor on possible measures for improving efficiency.
(14) Issuing all necessary instructions to the contractors in writing where required in particular with reference to variation orders/extra works as provided under the condition of contract with the approval of KFHA.
(15) Recommending to KFHA the acceptance or rejection of the work or any part thereof constructed by the contractor in accordance with the specification and Conditions of Contract.
(16) Preparing Interim Payment Certificates, Certificates of Completion, Final Payment Certificates and Maintenance Certificates in accordance with the conditions of contract for approval of KFHA to formate agreed in advance with KFHA.
(17) Periodic checking of quantities of work still to be executed and review of project expenditure (both local and foreign).
(18) Negotiating with the Contractor and making recommendations to KFHA on the rates for any unscheduled items of work which may arise.
(19) Instructing the Contractor to carry out any on-site tests including loading test, test records and settlements records as may be considered necessary, including supervision and verification of such tests and submission of reports to KFHA.
(20) Delivery to KFHA on completion of work such records and manufacturer's manuals including `As Built Drawings and maintenance instructions as may be necessary to satisfactorily operate and maintain the completed project facilities.
(21) The preparation and submission of contract completion, maintenance completion and other reports.
(22) Assisting KFHA if necessary, in appointing an arbitrator to settle any dispute or difference of opinion between KFHA and the Contractor concerning the execution of the works.
(23) Satisfactorily carrying out all other duties of the Engineer with diligence and care as may be necessary and incidental for satisfactory construction supervision procurement or implementation of the project."
12. There was no room for any clerical or manual work unless incident 'i. The respondent could not be counting and measuring the whole day long. The pith and substance of the duties performed by the respondent was certainly of a technical nature involving mental application and Engineering skill. It was not a work of routine or manual nature but required application of mind and supervision of work done by others. Even the bio-data furnished by the respondent at the time he had applied for the job is a clear pointer in that direction. Looking to the ratio laid in General Manager Hotel International v. Bashir Ahmed PLD 1986 SC 103. Abdur Razzaq v. M/s. Ihsan Sons Ltd. And others to 1992 SCM R 505 to mention only a few, the respondent cannot be said to be a workman,
13. As according to me the respondent was not a workman that is enough to dispose of the appeal.
The alleged solecism in the letter of termination in the circumstances will be wide of the mark.
14. In the result, the impugned order is set aside the appeal is allowed.