' This is an appeal from the decision of the Punjab Labour Court No,
2. Lahore, dated 17th of October, 1992 whereby the grievance petition filed by the appellant was dismissed solely on the ground that he was not a workman as defined in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
2. The appellant was in the service of the respondent since 24th of December, 1983. He was initially appointed as an Administrative Officer in the Multi-Pak Limited, Karachi. He was subsequently transferred to Fauji Sugar Mills, Sangla Hill as Assistant Welfare and Administrative Officer. On 5th of January, 1989 he was appointed as Stores Officer in the same Mills. The appointment of the appellant was never made on permanent basis but extended periodically. Last time his service contract was renewed on 4th of September, 1988 for a period of three years with effect from 24th of December, 1988 (Exh. R-8). On 9th of December, 1991 the respondent sent a letter (Exh.P-1) to the appellant intimating that since the Central Board of Directors had decided not to renew his service contract beyond 23rd of December, 1991 afternoon his services would stand terminated with effect from 24th of December, 1991 forenoon. On 17th of December, 1991 he filed a grievance petition assailing the validity of the above letter. According to him, the termination of his services was mala fide unjustified, illegal and void. He alleged that the post he was holding was of permanent nature that the employees junior to him were still in service of the respondent and that the termination violated the principles of natural justice
3. The respondent contested the grievance petition contending that the termination, being in accordance with the terms of the service contract, was in conformity with law. It also raised legal objections, including that the appellant was not a workman and, therefore, the grievance petition was incompetent and that Labour laws were not applicable to it, it being a charitable endowment created for the benefit of ex-servicemen and their families.
4. The appellant in support of the grievance petition examined himself as P.W.
1. In rebuttal Muhammad Saleem Qadir, Deputy General Manager (R.W. 1) and Captain (Retd.)
Lutfullah, Senior Store-Keeper (R.W. 2) entered the witness-box. The Labour Court, after appraising the evidence vide its decision, dated 6th of February, 1992 accepted the grievance petition, directing the respondent to allow the appellant to continue his service as Stores Officer. It held that the appellant was workman and that the termination letter (Exh. P-1) contravened Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. Feeling aggrieved the respondent filed an appeal which was heard by my learned predecessor who vide his judgment, dated 3rd of March, 1992 accepted the same, set aside the decision of the Labour Court and remanded the grievance petition to it for its redecision after recording further evidence of the parties. He observed that determination of the controversy whether the appellant was a workman needed further inquiry.
6. After the remand, the appellant again appeared as his own witness as P.W.
1. On behalf of the respondent Lutfullah Khan, Senior Store-Keeper and Retired Col. Azhar Hussain Rathore, Personnel Manager were produced as R.W. 1 and R.W. 2 respectively. After analysing the evidence the Labour Court vide its decision dated 17th of October, 1992 found that the appellant was not a workman both under the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and consequently dismissed the grievance petition as not maintainable. Hence this appeal.
7. I have heard learned counsel for the parties and perused the record.
8. The definition of the term 'workman' as given in the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has come up for interpretation by the superior Courts frequently. In this connection, learned counsel for the appellant has relied on Dost Muhammad Cotton Mills Limited, Karachi v. Muhammad Abdul Ghani (PLD 1975 Karachi 342) wherein a Chief Accountant was held to be a workman. It was held that an employee would have to be considered as a workman if he was not responsible only to the owner and did not supervise and control entire establishment. It was further held that neither the designation nor the salary was a factor for determination of the status of an employee and the only criterion was the work an employee had to do and the answerability for his performance. This decision of the High Court was upheld in appeal by the Supreme Court of Pakistan in Dost Muhammad Cotton Mills Limited, Karachi v. Muhammad Abdul Ghani and another (1979 SCMR 304). Similar observations were made in Messrs Sethi Straw Board Mills Limited v. Punjab Labour Court No, 3, Lyallpur and others (PLD 1977 Lahore 71), wherein a shift chemist was held to be a workman in spite of conferment on him of certain supervisory and managerial powers. In Bashir A.
Malik v. Punjab Labour Court and others (PLD 1973 Lahore 594) it was observed by a learned Single Judge that the mere fact that a person who was otherwise covered by the definition of workman as given in Ordinance VI of 1968, also performed supervisory functions would not be operative to exclude him from the definition of workman. This observation was quoted with approval by a Division Bench of the Karachi High Court in Abdul Ghaffar v. Karachi Shipyard and Engineering Works Limited and others (1987 PLC 697), wherein an Assistant Foreman was held to be a workman.
Hameedullah Khan v. Hotel. Intercontinental and another (1990 PLC 542) and Lever Brothers Pakistan Limited, Karachi v. Mrs. Kishwar Sultana Khan (1994 PLC 610) decided by the Labour Appellate Tribunal Sindh were also cited by learned counsel for the appellant.
9. On the other hand learned counsel for the respondent has referred to General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik (PLD 1986 SC 103) in which it was observed that the question whether an employee was a supervisor or was exercising directional and controlling powers posed merely a negative test of a workman which could not be conclusive; this was ultimately a question of fact, at best one of mixed question of fact and law. According to it, it was the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question of his status and not his designation. It was further observed that the question to be examined was whether manual or clerical work was incidental to the main work or a substantial part of it, so that the fact that a person employed in a supervisory capacity did some manual or clerical work as ancillary or incidental to such employment had been held not to bring him within the ambit of the definition of workman. He has also cited Sharafuddin v. Messrs Parke-Davis & Company Limited (1991 PLC 624), Singer Pakistan Limited v. M.N.K. Qadri (1991 PLC 353) and Syed Irshad Hussain v. Messrs Kohinoor Soap and Detergent Limited, Karachi (1990 PLC 423), all the three decided by the Labour Appellate Tribunal Sindh on the basis of the dictum laid down in PLD 1986 SC 103, referred to above.
10. The consensus which emerges from all the above precedents is that the test for determination of the Controversy whether an employee is a workman is the nature of the duties assigned to him and not the nomenclature or the salary or the post held by him.
11. According to hierarchy of the organization of the Fauji Sugar Mills, Sangla Hill as given in the chart (Exh. P-8), the appellant was placed under the Deputy General Manager who was answerable to the General Manager. The Deputy General Manager was the Head of Department of Stores and responsible for all stores documents in his charges. The duties of the Stores Officer were enumerated in Exh. R-15 as under:-- "(6) Store Officer.- --Store Officer is responsible to DGM for the following aspects concerning 1\42:n Store and Sugar Godown:--
(a) Organization and Administration of Stores and its staff.
(b) Implementation of policies, directives and instructions with regard to storage and its maintenance.
(c) Receipts, inspections, storage; binning, care, preservation and issue of stores.
(d) Security of stores.
(e) Scrutinising and finalizing the periodical demand of production material and other stores in consultation with Heads of Department before demand is placed.
(0 Liaison with all Departments.
(g) Annual stock taking of stores.
(h) Periodical auction of unserviceable and disposal of surplus stores as per orders/sanction of the G.M.
(j) Keeping store inventory under control.
(k) As Officer Incharge, Sugar Godown he is responsible for receipt, proper staking, storage, security, check reports and returns issue, loading and despatch with proper documentation.
(1) Administration and control of Sugar Godown Staff.
(m) He is responsible for safe and proper storage of molasses, bagasse sugar and scrap. He will sign all excise and Mills gate passes and shall ensure that one vehicle load goes out on one gate pass.
(n) Will ensure that molasses is not drained out on any pretext unless ordered in writing by G.M.
(o) He will ensure that the molasses tanks and pits are safe for storage and will immediately inform the Management in case of any danger of spill.
(p) He will ensure that each molasses tanker, sugar truck and bagasse truck is weighed at the Main Weighbridge before it leaves the Main Gate of the Mills.
(q) Any other duty assigned by G.M."
12. According to Exh. R-11 the staff of Main Store comprised one Senior Store-Keeper, four Store- Keepers, three Clerks and eleven General Duty labour and the staff of Sugar Godown consisted of one Incharge Sugar Godown, one Assistant Godown Incharge, three Clerks and three General Duty Labour. Captain (Retd.) Lutfullah, Senior Store-Keeper said in his cross-examination as R.W. 2 that the three Store-Keepers were working under him, that the Deputy General Manager was the head of department of stores, that his leave and that of the Store-Keepers was sanctioned by the General Manager and that fixation of overtime duty and movement was regulated by the Deputy General Manager. He further stated that certain receiving reports in respect of the stores were prepared by the appellant and he used to check those reports. Certain duties of the Stores Officer were described in Exh.P-10 also according to which, the Stores Officer was required to prepare certain reports and send them to the quarters concerned. He also used to issue gate passes for bagasse molasses etc. Leave forms (Exhs. R-14 to R-14/14) showed that he was authorized to sanction casual leave to clerks and labour working in the Main Store. The overall evidence indicated that the appellant in the discharge of his duties was not performing directional or managerial functions. He did not possess any power to hire and fire. His administrative function was confined only to sanction casual leave to clerks and labour posted in the Store. He was not acting merely as a supervisor. His duties involved his mobility and physical exertion. In these circumstances, the appellant was, by all means, a workman both under the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968.
13. For the foregoing reasons, I accept this appeal, set aside the impugned decision and remand the grievance petition to the learned Labour Court for its decision in accordance with law after adjudication of other controversies on law as well as on facts.
14. The parties shall appear before the learned Labour Court on 16th of July, 1995.