1. NAZIM HUSSAIN SIDDIQUI, J.--- This judgment will dispose of Constitutional Petitions Nos. 69 and 1025 of 1994. In these petitions, the parties are the same, except Ali Ahmed, who has been shown as the respondent No. 3 in Petition No. 69 of 1994 only. The facts relevant for decision of these petitions are as follows: The petitioner was appointed by the respondent-sugar mill as a junior clerk and thereafter as storekeeper. On 16th May, 1989, he was further promoted as Store Officer. On 10th April, 1991, his services were terminated on the ground of "reduced load work" and he was given to months' salary in lieu of notice. He sent a grievance notice, which was followed by a petition before Sind Labour Court No. VII, Sukkur and said petition was allowed by order, dated 6th April, 1993 and he was reinstated in service with full back benefits from the date of his termination.
2. The respondents challenged said order in Appeal No. SUK-237 of 1993 before the Sind Labour Appellate Tribunal and learned Tribunal, by order, dated 13th January, 1994, allowed the appeal and set aside the order of the Labour Court. In Petition No. 69 of 1994 aforesaid order of learned Tribunal has been impugned.
3. It appears that after the petitioner was reinstated the respondents again terminated his services as per letter dated 4-5-1993, on the ground that the post against which he was serving was abolished. He then again filed the petition before said Labour Court bearing No. 14 of 1993 which was dismissed, as per order, dated 30th January, 1994, relying upon the decision of learned Tribunal in Appeal No. SUK-237 of 1993. He preferred appeal against the order of Labour Court before said Tribunal, which was dismissed by the latter vide order dated 11-8-1994. This order has been challenged in Petition No. 1025 of 1994.
4. Mr. Nizamuddin Baloch, learned counsel for the petitioner has raised to-fold contentions. Firstly, he argued that the petitioner is a "workman" within the meaning of section 2(i) of Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter called the Ordinance, and that the findings of learned Tribunal that the duties of the petitioner primarily were of supervisory nature was contrary to the material available on record. Secondly, he submitted that in any case, by virtue of Standing Order 13 of the Ordinance the petitioner could not be removed from his job and the junior-most workman, namely, Ali Ahmed (respondent No. 3) in Petition No. 69/94) was to be retrenched.
5. As against above, Mr. M.L. Shahani learned counsel for the respondents submitted that after promotion the petitioner was serving as Store officer as such, he was an employer within the meaning of section 2(c) of the Ordinance. He also argued that learned Tribunal had properly appreciated the evidence and that no other conclusion was possible, except the one drawn by learned Tribunal. In order to appreciate, the respective contentions of the parties it would be advantageous to reproduce the definition of 'employer', 'workman' and the Standing Order 13 of the Ordinance, which are as under: "2.(c) 'employer' means the owner of an industrial or commercial establishment to which this Ordinance for the the being applies, and includes--
(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as Manager of the factory;
(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department; (i.e) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment; 2.(i) '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.
13. Procedure for retrenchment. ---Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category."
6. As regards the first contention, learned counsel for the petitioner contended that the petitioner was performing manual/clerical work in the establishment of the respondents and was a 'workman'. In support of this contention, he cited:--
(i) Muhammad Ali v. Sind Labour Appellate Tribunal and 2 others1985 PLC 403,
(ii) Abdul Ghaffar v. Karachi Shipyard and Engineering Works Ltd.And others 1987 PLC 697.
7. In the case of Muhammad Ali it was held by a Division Bench of this Court that the employer was to prove that the employee was not a workman. In the case Abdul Ghaffar it was observed that an Assistant Foreman, who supervised technical work of his subordinates, was a workman within the scope of definition quoted earlier.
8. Mr. M.L. Shahani learned counsel for the respondents on this point cited the case reported as Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCM R 505 (same case also reported in 1992 PLC 424) and submitted that the question whether an employee was a workman or not within the meaning of definition quoted above was examined in said case and in this regard the observation made in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik PLD 1986 SC 103 was relied upon, which is as follows:-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field or 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 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 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. "
9. In view of above dictum, now it is to be determined that whether the petitioner is a workman or not within the scope of the definition quoted earlier. It is an admitted fact, that after promotion as Store Officer the petitioner had formed an Officers' Association of which he had become the General Secretary. This indicates that after the forming of said association for all practical purposes, he severed his connection from the Labour Union, as simultaneously he could not be worker as, well as officer in the said establishment. In cross-examination on this point he frankly admitted that the Officers' Association consisted of officers exercising control in the management. The only conclusion which can be drawn from above admission is that being the General Secretary of the Officers' Association, he could not claim to be a worker in said establishment.
10. Mr. Nizamuddin Baloch, however, argued that simply the fact that the petitioner was serving as a General Secretary of the Officers' Association, would not, ipso facto, exclude him from the scope of the definition of workman. It is clear from the evidence that after promotion his primary duty, as observed by learned Tribunal, was of supervisory nature. He candidly admitted, in cross- examination, that at the the of his posting in the Store Department there were four helpers and to or three clerks and at the the of termination of his services four helpers and to clerks were posted there. He also admitted that the clerks used to make entries in the register. 4 helpers and 2 clerks being his subordinates ex facie, the job of the petitioner was of supervisory nature and the clerical work, if any, done by him, was only incidental which could not bring him within the ambit of definition of 'workman'. The contention of Mr. M.L. Shahani learned counsel for the respondent that the petitioner was employer within the scope of definition of said terms quoted above, is also not correct. It is observed here that the petitioner as a Store Officer, was not employer as he was not the person responsible to the owner for the supervision and control of said establishment. To be responsible for supervision and control of an establishment is altogether different than to carry a limited responsibility in respect of a section of such establishment.
11. As regards the plea of applicability of Standing Order 13, it is noted that it could be invoked only if the petitioner would have been removed in the capacity of worker. As observed earlier, at the the of termination of his services he was not a workman. There is no merit in these petitions.
12. On 16-10-1996, after hearing the arguments, we had dismissed these petitions and these are the reasons for the same.