DECISION This appeal arises from the decision of Fourth Sind Labour Court, Karachi, whereby the grievance petition of one Syed Amir Khursheed was allowed and he was ordered to be reinstated in service with full back benefits.
2. The facts, in brief, are that the respondent was employed as Sales Executive at the Duty Free Shop inside Karachi Airport with effect from 25-1-1993. He was confirmed from 25-7-1993. On 14-10- 1993 it was found that to extra suit cases had also been taken out with other goods entered in the Invoice. The Manager found that the respondent was solely responsible for removal for these suit cases and they were being removed dishonestly.
3. The Labour Court found that the termination order was not in accordance with law. That no enquiry was held under Standing Order 15 of the Standing Orders Ordinance nor was it termination simpliciter under Order 12. The Labour Court, therefore, allowed the grievance petition and ordered reinstatement of the respondent.
4. The main argument of Ch. Jamil, Advocate for the appellant Company is that the Labour Court had no jurisdiction because the respondent's job was of Managerial nature and he was not performing clerical or manual functions of a workman.
5. On examination of the evidence recorded in this case the point raised by Mr. Jamil does not appear to be without substance. The order of appointment of the respondent, dated 1-2-1993, reads as under: "With reference to your application and subsequent interview we are pleased to appoint you as 'SALES EXECUTIVE' in Aer Rianta International (Pvt.) Limited with effect from 25-1-1993.
(1) The company shall pay you monthly remuneration of Rs.3,250.
(2) You will serve the company in the capacity of Sales Executive.
(3) You will be on probation for a period of six months.
(4) On confirmation you will be at liberty to leave on one month notice and the company will be at liberty to determine your services by giving you 30 days notice or one month consolidated salary in lieu thereof.
(5) Your services are liable to be terminated if you are guilty of any misconduct etc. And such other conditions."
6. By letter, dated 25-7-1993 the respondent was confirmed and his Gross Salary was raised to Rs.4,000. The terms and conditions in the appointment letter were to continue.
7. If an employee claims in any petition that he is a worker or workman the burden of proof is always on him and not on the management. A If the nature of his duties are Managerial or Supervisory it shall not make any difference if he also performs any clerical or manual work ancillary or. Incidental to such duties.
8. In the present case Mr. Ch. Jamil for the appellant company has referred to the ruling in Brooke Bond case reported in 1992 SCM R 227 that a workman should do "predominantly" manual or clerical work. If in course of his employment of supervisory nature he has also to do partly clerical or manual work that will not make him a workman. It is the major duty that decides the status.
9. The respondent in this case has admitted in his evidence that he was appointed as Sales Executive, confirmed in the managerial cadre and assigned the duties to monitor the movement of goods from the security check to the final delivery to the customer. He has, however, stated that his duties was also on delivery-counter to receive the invoices from the passengers.
10. It has, on the other hand, been argued by Mr. Muhammad Ali Mazhar, Advocate for the respondent that Mr. Ali Hyder was the Manager Sales in the Duty Free Shop and the respondent worked under him and performed duties as workman. That he had to supervise the movement of the trollies from the Stores then to the Security Check and lastly up to delivery to the customer. This does not make him a workman. It is not the designation nor the amount of remuneration that has to be considered but the criterion E depends on the nature of work. It has not been shown that he was handling the goods, placing them on trollies or taking out the goods from the trollies to hand over to the customers. There were helpers under him who do that job. It has not, therefore, been established that the Sales Executive was a clerk or manual worker. He was, obviously, an Officer and the Industrial Relations Ordinance and the Standing Orders Ordinance had no application to him. Under the circumstances the Labour Court had no jurisdiction to consider the grievance petition of the respondent under section 25-A of the I.R.O.
11. The order of the Labour Court is, therefore, set aside and the appeal is allowed.