DECISION This appeal calls in question the order of the Labour Court whereby the petition under section 25-A of the IRO seeking reinstatement came to be allowed, but without any back benefits Appeal No. KAR-596 of 1992 has been filed by the Management against the order of reinstatement, and Appeal NO-KAR-597 of 1992 has been filed by the worker against the denial of the back benefits on the ground that he had not alleged anywhere in the proceeding that he was unemployed. I propose to dispose of both these appeals by a composite order. Shorn of all details, the genesis of the dispute is as follows:-- The petitioner had been employed by the respondent-Company as Refueling Supervisor in January 1962 and in due course he had been promoted as Aviation Executive. On the 20th January, 1988 he was served with the charge-sheet which reads as under:-- "It has been reported that on 30-12-1987 you were the Shift Incharge at Karachi Aviation Station of the Company from 15-00 to 23-00 hours and at the commencement of the shift i.e. 15-00 hours received 256869 liters of the product JP-1/Jet A-1 in Vehicle No. 31.
That at about 18-40 hours, 4,337 liters of product was delivered to PIA Flight No. 336 Thereby leaving a balance of 21,531 liters in the said Vehicle No. 31.
That at about 19-30 hours Mr. Naseebuddin, Senior Driver with your connivance drove out Vehicle No. 31 from the airport premises through wide body Hanger ASF Check Post unauthorisedly, with ulterior motives and stole 11,981 liters of the product.
That at about 22-30 hours Vehicle No. 31 was brought back at Bay 12-A driven by Mr. Naseebuddin along with Service No. 10 driven by Mr. Mohsin Saeed for unauthorised replenishment with ulterior motives. About 4,600 liters of product was replenished in Vehicle No.31 from Eastern Joint Hydrant Depot (EJHD). The receipt of 4,600 liters of replenishment was taken by you without the knowledge of EJHD and even after taking the replenishment, you did not obtain receipt from EJHD, again with ulterior motives with a view to cover the quantity of product amounting to 11,981 liters stolen by you in connivance with M/s. Naseebuddin and Mohsin Saeed. When the incoming shift took physical inventory of the total stock/product including Vehicle 31,14,150 liters fuel was found in the vehicle instead of 26,131 liters, thereby detecting a net shortage of 11,981 liters fuel.
The full details of stock of the product contained in Vehicle No. 31 are an under: (1)Stock in Vehicle No. 31 at25,8681itres start of shift at 15-00 hours (2)Less quantity delivered to4,3371itres PIA Flight PK 336 (3)Balance left21,531 liters (4)Quantity unauthorisedly4,600 liters repleshed making with Hydrant Service No. 10 at Bay 12-A.
(5)Total quantity26,131 liters (6)Actual stock received at14,1501itres start of incoming shift at 23-00 hours (7)Net shortage11,981 liters It is thus evident that with the connivance of Mr. Naseebuddin and Mr. Mohsin Saeed you have stolen 11,981 liters of product valued at approximately Rs.68,945 with a view to achieve wrongful gains.
That on January 18, 1988 when you were called to the Head Office to relate the facts, you admitted in the presence of witnesses that 11,981 liters of product had been sold by M/s. Naseebuddin and Mohsin Saeed to an outside party and that you had been paid Rs.3,000 which you had willingly accepted.
The aforesaid act on your part constitutes gross misconduct on your part.
You are, therefore, hereby called upon to submit your explanation in writing within 3 days of the receipt hereof as to why disciplinary action should not be taken against you for the aforesaid act of misconduct. In case your reply is not received within the stipulated time, it will be assumed that you have nothing to say in defence and further action will be taken as deemed appropriate.
(Sd.)
(SA.O. RIZVI)
SALES MANAGER AVIATION AND MARINE.
He had replied to the same. As the explanation was not found to be satisfactory a letter of enquiry was issued and during the domestic enquiry the statement of Ziaul Haque, Zainul Abidin, Syed Zahid Hussain, Khurshid Zaman, Iftikhar Alam, Mithani, Habib Akhtar Zubairi, Khalid Idrees and others were recorded. On the receipt of the report from the Enquiry Committee consisting of Khan Ameer and ZA. Balo6 wherein he was found to be guilty of misconduct, his services came to be terminated by letter dated 9th of June, 1988. He had sent a grievance on the 19th of July which was replied to. As no satisfaction was accorded to him, the petition before the Labour Court followed.
4. The petition came to be resisted inter alia on the ground that he was not workman. The other contentions raised on behalf of the petitioner also came to be denied. The petitioner was his own witness, while HA. Zubairi Aviation Superintendent, Zainul Abedin, Senior Legal Executive and Khan Ameer, Internal Auditor appeared on behalf of the respondent.
5. The Labour Court for the reasons given by it allowed the petition, but without back benefits.
6. The question of foremost importance in this appeal will be concerning the status of the respondent. He did not furnish any details in that context either in the grievance notice or in the petition before the Labour Court. However, he had the following to say in his affidavit in evidence:-- "4. That I am a worker and, continued to work in the employment of the Opponent as such. I admitted that I was designated as Aviation Executive but was doing only manual and clerical work.
This is the main work and is not incidental to the performance of any supervisory duties. My responsibilities and duties inter alia include: (i)As soon as I joined duty I had to check how many flights were arriving and departing during my shift I made entries of that on the board.
(ii)After that I counted how many fellow workers and crewmen had reported for duty. If there was any shortage of personnel I could only request-the member of the outgoing shift, which request they were not under any duty to obey. If they failed to stay then the shortage was made up if they did not then the members of my shift including myself had to do extra work for the person/persons who were absent.
(iii)It is also my duty to physically check all the stock stored at the station, it may be stated here the diesel and oil are stored in drums at the station and petrol is stored in an underground store at the station. It may be clarified here that jet fuel the theft of which has been alleged by the opponent is not stored at the station.
(iv)I also check whether all the vehicles are properly working and this is done by starting and checking their lights etc. (v)There are also two such vehicles i. e. a Jeep and a Pick-up.
(vi)I check each and every servicer re-fueler and pumping tanker. These are checked by seeing whether these are starting, their lights are working, their pumps are operational and all their machines are properly functioning.
(vii) I together with another worker check the water contamination in fuel of every servicer re- fuelled and pumping tanker.
(viii) I personally physically made entries of all the above checks having been carried out in the different registers e.g. Stock control register and shift register, maintenance book and management log book of the vehicles. Each vehicle has a separate log book.
(ix)I also used to write the flight schedule board in all the three shifts whenever I was on night duty.
(x)I also made the enquiries in the relevant register for the purposes of Excise and Sales Tax.
(xi)I telephone the Incharge of the two depots and find out from them the stock position of jet fuel for PSO. I make entries in the book on the basis of this information.
(xii) I made entries in the log book about the name of the person from whom I had taken charge and the number of people present in my shift.
(xiii) I filled the columns relating to the number of flights the name of Airline, the type of Aircraft, the destination port and the port from which the flight had arrived, the specific gravity of the fuel.
(xiv) I am responsible for manual as well as clerical work at the station whereas the persons designated as workers/crewmen are responsible for manual work. I go with the fuel team to the Aircraft whenever necessary. After the fueling is complete the delivery receipts are filled up with the time of fueling and fuel figures. I also take samples of the fuels delivered for every flight. The sample of the fuel is kept in a bottle a lable is prepared by me and affixed to the bottle, the bottle is sealed by me, and it is to be retained for 24 hours.
(xv)Whenever necessary I drove the servicer/tanker to the Aircraft, fixed hoses in the Aircraft and to the ground pit (wherever it was available) fuelled the Aircraft, made the fuel sample available to the engineer for inspection, when the fueling was complete I removed the hoses and drove the vehicle back to the station.
(xvi) At the time when I handed over the charge I conveyed all the information books and Stocks to the incoming shift.
(xvii) I admit that I was designated Aviation Executive but I state that I was performing manual and clerical work ever since the date when I was employed. I performed the same duty right from the beginning. I was employed as a worker although the designation was (Re-fueling Supervisor) I was never promoted. I worked in shifts. The opponent only changed my designation from "Re-fueling Supervisor" to "Aviation Executive". The salary increased with annual increment from the basic figure of Rs.360 plus allowances to the present basic figure of Rs.3,010 plus allowances I produce my pay slip marked AE-1.
(xviii) I had no power to hire, fire, charge-sheet or to sanction or refuse leave or to grant or recommend increments or promotions to any one.
(xix) I specifically deny all adverse allegation in the written statement.
7. In his cross-examination he stated that according to the Air Port Staff the Aviation Department was a separate wing of the company. At the apex is the Aviation Superintendent. Then comes the Senior Aviation Executive followed by the Aviation Executive, the Aviation Senior Officer, the Aviation Officer and lastly come the Re-fueling Operators. Then there are the Senior Drivers, Drivers and Crewman. He also admitted that the had approved overtime payments to Masroor Hussain, Aviation Officer and other persons from different categories. All these documents been placed on the record. These pertain to the months of November and December 1987. There was also approval from him in regard to the drivers from January to December 1986.
8. He admitted that he had asked the General Manager Administration and Personnel for supplying him the copy of the Management Staff Service Rules, as he had to hold enquiry against some staff members. There are also Appraisal Reports as to be found from Exhs. 3-A to 3-C. As Shift Incharge, on his own showing the vehicles were under his control. He had been to France for training and the Certificate from Air Total International signed by one Bailly, Quality Control which is from Paris reads as under:-- "TO WHOM IT MAY CONCERN This is to certify that Mr. WADIA has attended a two-week training course organized by and under the supervision of our Company from 7th to 18th September 1987.
The subject of the course was Quality Control and Operating Procedures for the distribution of aviation products and for aircraft.
Made in Paris. September 18th, 1987 (Sd.)
M. BAILLY, Quality Control.
HA. Zuberi adds that he had also been to West Germany. He is one of the two Aviation Superintendents of the company; the other being based at Lahore to control the Northern Region.
According to him even the Aviation Officers and the Re-fueling Supervisor belonged to the supervisory positions. He has stated that the Aviation Executive as the respondents is the Incharge of a shift and normally there are 4 to 5 Aviation Officers, 1 to 2 Re-fueling Operators, 5 to 6 drivers, 1 to 2 skilled workers and 1 to 2 semi-skilled workers in a shift. He has stated that all the physical manual job at the Airport Aviation Station of the respondent-Company is done by Re-fueling Operator as skilled and semi--skilled workers and job of the respondent was to oversee the performance of the staff. He has furnished the job description of the Aviation Executive and in his affidavit, inter alia, had the following to say: " I say that as Aviation Executive the responsibilities of the applicant included, effectively planning and organizing all assignments at airport relating to incoming and outgoing aircrafts of various airlines particularly important assignments and it was his responsibility to ensure that there was no delay in the fueling/re-fueling operations of the aircraft handled under his charge. He was also responsible for giving on the spot training and guidance to his subordinates. As Aviation Executive he was responsible for quality and quantity of work in his shift of which he was the Incharge.
I say that as Shift Incharge the applicant was responsible for the smooth operation, functioning and efficient performance of all aviation operations of the shift under his charge. As Shift Incharge his responsibilities included the checking, controlling, directing, guiding, training and overseeing the jobs performed by his assistants/junior officers and other staff on duty in his shift. He was authorised to allocate work to his assistants, juniors and workmen; to detain management and non-management employees of outgoing shift to work in his shift to initiate disciplinary action; to exercise administrative control over shift equipments; to release from duty employees of the shift; to grant leave to employees of his shift and to approve overtime payment of workmen under him.
These authorities the applicant was competent to exercise like other Aviation Executives Incharge of their respective shifts. I say that the members of staff who worked under the applicant as Shift Incharge, included Senior Aviation Officer, Aviation Officers, Senior Re-fueling Operators, Re-- fueling Operators, Driver, skilled workers and semi-skilled workers.
I say that as Shift Incharge, the applicant was responsible for the stocks, materials, bowlers/vehicles and their inventories. The bowlers/vehicles/servicers/re- fuelers/pumpers in the shill were under the charge and control of the applicant as Shift Incharge. He was responsible to ensure that the vehicles/bowlers were in proper working condition and in order. The physical/manual work in connection with the maintenance running and operations of the said equipments were done by the workmen under his control and directions. He could issue instructions to his assistants and other members of the staff of the shift to check whether the vehicles were in working order as it was his overall administrative responsibility as Shift Incharge.
I say that Aviation Executives and also the Aviation Officers are competent to take disciplinary action against workmen and I say that the applicant was Aviation Executive and as such he was also competent, like other Aviation Executives, to take disciplinary action against any workmen if any occasion arose.
I say that entries in the Aviation Stock Control Register, recording in the Flight Schedule entries in the Plant Log Book (which is only in `B' shift) and other related entries are usually made by the assistants and subordinate members of the staff under the control and charge of the Aviation Executive as shift incharge.
I say that the said writing work i. e. Making entries in the said registers is usually done by the Aviation Officers and/or their subordinates under overall instructions and directions of the applicant as Shift Incharge. I specifically say that the applicant as Aviation Executive Shift Incharge was not required to do any clerical work.
9. In the cross-examination Zubairi has stated-that at the Airport it is the Aviation Officer who prepares the register under the direction of the Aviation Executive "by making entries therein of the day". The main responsibility of the Aviation Executive according to him is to maintain the Log Book which contains the information of the incoming persons on duty or the persons on leave and also persons detained for overtime duties. He also maintained the handing over and the taking over entries. The Aviation Executive goes to the Airport, but only to supervise the act of re-fueling the Aircrafts. He also denied the suggestion that it was his duty to repair the re-fueling equipment; he was not a technical man. What is expected of him is simply to "recommend un-workability" of the equipment. He further denied that he assisted in the fueling of all or other projects during his re- fueling. His attention was drawn to the job description where it was so mentioned. The fact remains that in the same breath the respondents have stressed the fact that the said paper neither borne a date nor the signature of any body to establish its authenticity, However he candidly admitted that it was not within his powers to promote any body under him. He could only recommend. He could also grant leave to the people working in his shift and that is recorded in the Log Book.
10. Nothing substantial could be elicited from him in that context as there were documents to lend support to the assertion of Zubairi. It is true that the respondent recorded a few entries, but that by itself is not enough to establish that he was a workman. It was open to him to ask for any document or records to be produced in his support, but he did not do that.
11. A person with supervisory duties does not sit in his office with his hand in padded gloves. The mere fact that he does something with his own hands by way of checking or testing work done by somebody else or make a few entries in the course of the duty would not make him a workman.
12. It was held in General Manager, Intercontinental Hotel v. Bashir A. Malik PLD 1986 Supreme Court page 103 that: "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 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 definition is attracted."
This has been the consistent view of the Supreme Court in the cases that have followed in its wake namely Shahi Bottlers (Pvt.) Limited v. Punjab Labour Appellate Tribunal and others 1993 SCMR 1317, National Bank of Pakistan v. Punjab Labour Court, Faisalabad and others 1993 SCM R 672, Abdul Razzak v. M/s. Ihsan Sons Limited 1992 SCM R 505 apart from others. It is true that mere designation or the amount of pay which in this case was Rs. 5,505 per month will not matter, but looking to the evidence on the record I have no manner of doubt that the respondent was holding a post which was supervisory in nature. Under the circumstances the petition filed by him in the Labour Court would not be maintainable.
12-A. I might, however, add that the shortage of the jet fuel was noticed behind the back of the respondent. Otherwise too, there is no evidence against him except the alleged admission of guilt before Zubairi and others which nothing but a mere padding. But because of my finding in regard to the status of the respondent, nothing will turn on the same.
13. In the result the order of the Labour Court in regard to reinstatement is set aside and Appeal No. KAR-596 of 1992 preferred by the management is allowed. As a corollary the Appeal No. KAR-597 of 1992 filed by the respondent for the award of back benefits also stands dismissed. The back benefits could not otherwise be granted, as he had nowhere stated that he was jobless.