1. ' MUHAMMAD ASHRAF LEGHARI, J.---This petition directed against the judgment of Chairman, Sindh Labour Appellate Tribunal dated 19-5-1997, whereby the order, dated 6th March, 1997 passed by Second Sindh Labour Court Karachi was reversed and thereby the Appellate Tribunal held that the petitioner Sabir Mehmood Bhatti was not working with the respondent No,2 as workman within the meaning of the term as defined in the Industrial Relations Ordinance, 1969.
2. The petitioner Sabir Mehmud was employed with the respondent No,2 as Typist-cum-Store- Keeper in Pearl Continental Hotel Club Road, Karachi. He was thereafter promoted and posted as Inventory Controller in a managerial category. He was second time promoted and subsequently designated as Assistant Purchasing Manager and was drawing salary of Rs,7,500 per month.
2. Thereafter, his services were terminated by letter dated 2-2-1992 by the respondent No,2 on the ground that he was found to be unfit and his service is no more required. He was allowed three months salary in lieu of notice before termination. The petitioner Sabir Mehmud then served the grievance notice to the management and filed a petition under section 25-A of the Industrial Relations Ordinance before the Labour Court. The Labour Court found that the petitioner was the workman and his petition was as such maintainable. The Labour Court held that since no reasons were given for termination by the respondent No,2 and the same was declared to be illegal under the provisions of Standing Order 12. The petitioner was, therefore, reinstated with back benefits.
3. The respondent No,3 General Manager, Pearl Continental Hotel impugned the said order of Labour Court in appeal before the Sindh Labour Appellate Tribunal and the appellate Tribunal vide its decision dated 19-5-1997 held that the petitioner was not a workman and that he was holding job in the Supervisory and, managerial category, therefore, the grievance petition under section 25-A of Industrial Relations Ordinance was not maintainable.
4. It is contended by Mr. Tasneem learned counsel for the petitioner that the petitioner is a workman. He argued that the salary and designation are not the criteria for deciding employee as workman. He stated that the petitioner was the General Secretary of a Union of Hotel Intercontinental of respondent No,2. He was victimized due to the Union activities. It is pleaded that the petitioner was holding a job throughout his service as workman/worker right from 1968 till the termination of his service i,e, 2-2-1992. The learned Counsel argued that the finding of learned Labour Appellate Tribunal is contrary to law and is not in conformity to the pronouncement of the superior Courts. Learned counsel pleaded that the impugned judgment is sketchy and devoid of material reasonings. The learned counsel stated that the petitioner was not doing the job of supervisory managerial nature but his job was manual and clerical. He argued that the learned Labour Appellate Tribunal has misread the evidence on record and has come to an erroneous conclusion. He has referred to the cases Security Paper Limited. Sindh Labour Appellate Tribunal and another (PLD 1988 SC page 180), Abdul Razaq v. Messre Ihsan sons Limited and 2 others (1992 SCMR 505). Unreported case M/s Pearl Continental Hotel v. Syed Zamirul Haq and others Civil Petition No: 478-K of 1998 and another Unreported case M/s. Pearl Continental Hotel, Club Road, Karachi through its General Manager N.:. Irshad B. Anjum v. Akber Ali Khan and others, Constitution Petition No,D-103-K of 1998.
3. ' Mr. Muhammad Humayun learned counsel for the respondent No,2 stated that the petitioner was assigned supervisory duties and was not working as workman. He stated that the learned Labour Appellate Tribunal had rightly set aside the order of Labour Court, whereby the petitioner was reinstated. The earned counsel argued that the Labour Court had no power to entertain grievance petition under section 25-A, as the petitioner was not performing clerical or manual duties as claimed by him. He has drawn our attention to Exh.A/4 which is letter dated 17-9-1988 by the petitioner showing that his leave was cancelled and the petitioner was called back to his duties to prepare the capital budget and Annual Central Purchase Requirements. Learned counsel has argued that Exh.R/2 displays the jobs of description of the petitioner which reveals that the petitioner was not working as a workman. The learned counsel has made a reference to the case of Managing Director, Shahi Bottlers (Pvt) Limited v. Punjab Labour Tribunal Lahore and 2 others (1993 SCMR page 488). Karachi Shipyard & Engineering Works Limited v. Abdul Ghaffar and 2 others (1993 SCMR 511), Muhammad Sadiq v. Punjab Labour Court No,1, Lahore and another (PLD 1988 Supreme Court 633), Ganga R. Madhani v. Standard Bank Ltd: and others (1985 SCMR 1511).
4. The numerous pronouncement of superior Courts have been produced before us wherein the principle is well-established that if the functions performed by the employees were of supervisory nature he would be excluded from the definition of a workman. The initial burden for proving the fact that the employee was workman heavily lie upon the employee by producing documentary as well as oral evidence in support of his contention, as such, it was for the petitioner to prove through documentary or oral evidence in support of his contention that he was workman and was performing duties of clerical and Manual nature. In the present case the duties entrusted to the petitioner appear to be of supervisory nature as indicated from Exhs.A/1, A/2, A/3, A/4 and R/2. The learned Labour Appellate Tribunal on the basis of these documents had rightly held that the petitioner did not fall within the definition of workman and consequently his grievance petition under section 25-A of Industrial Relations Ordinance, 1969 was not competent. The evidence produced before the Labour Court proved that the work and powers conferred on and functions thereby required to be performed by the petitioner were neither manual nor clerical but he was holding supervisory job and his grievance petition could not be maintained. Reference is made to a case of Managing' Director, Shahi Bottlers (Pvt) Limited v. Punjab Labour Appellate Tribunal, Lahore and 2 others (supra), wherein it is held that:--- "Coming back to the burden of proof, it was incumbent upon respondent No,3 to have produced documentary or oral evidence in support of his contentions that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. Evidence produced before the Labour Court was insufficient and unsatisfactory and on the basis of which finding given by Labour Court is proper and sustainable under the law."
5. ' Exh. No,A/2, is the letter which in its very beginning contained as under:--- "Following Supervisory Staff have been allowed to have dry cleaing of one suit in a week and laundry of three shirts and three paints only in a week."
6. ' The name of petitioner appears in the list at Serial No,5 of the aforesaid supervisory officers.
7. Although, the said letter pertains to a period when still the petitioner was working as Inventory Controller.
8. ' The petitioner applied for his promotion to the post of Assistant Purchase Manager. This application is placed on record as Exh. 4/1 addressed to the General Manager, Pearl Continental Hotel, wherein he has urged that he has been working for last 22 years and for over 15 years as Inventory Controller. He further prayed in the said application that by virtue of his job, he was fully conversant with the purchasing procedure, price trends and the market. The promotion required ' such type of duties which were ancillary to his main duty and he was conversant with purchasing procedure. This type of Working involved exercise of discretion.
9. 'The job description Exh.R/2 is produced on record which reveals the duties and responsibilities of petition. The plea that Assistant Purchase Manager was alone and oneself and nobody was working under him is again imaginary as what for the man was appointed as Assistant Manager and was drawing salary. Of Rs,7,500. The simple meaning of word Manager implies and signify to be a person who deals with administration and with the design and marketing. He was not working as manager of any person. No prudent mind can believe the Assistant Manager holding such a job drawing such a huge salary had no power of hire or fire in such a large establishment like Pearl Continental Hotel, Karachi. Yet another factor for deciding this vital point which needs adjudication is to be seen in the light of contents of para. 12 of the affidavit filed by petitioner in the Labour Court, which reads as under:-- ' Even on so-called promotion and fake designation my nature of job was not changed and I had to maintain work mainly and substantially the same as the store department alongwith my transfer.
10. And even I have no hire and fire powers and I had to work strictly under the supervision and control of purchasing manager."
11. ' The above quoted passage is in conflict with application Exh.4/1 herein the petitioner made a request for promotion as being very experienced man for performing certain indepdendent and supervisory type of duties.
12. The real test for determining whether a person falls within the ambit of definition of 'workman' depends on the nature of the duties performed by him at the time of his termination. The evidence adduced and the documents produced indicated that the duties performed by the petitioner were of supervisory character and not that of worker. The petitioner did not fall in the definition of 'workman' in terms of section 2(xxviii) of the Industrial Relations Ordinance, 1969 and his grievance petition could not be maintained. The reference is made to Muhammad Sadiq . Punab Labour Court No,1, Lahore and another (supra) PLD 1988 Supreme Court 633).
13. ' The case law referred to by learned counsel for the petitioner has no relevance and bearing with facts and circumstances of the case in hand.
14. ' For the facts and reasons stated above, we are of the view that the nature/job of petitioner was not of manual and clerical but it was supervisory involving direct control and independent application of mind and as such he was not a workman as it proved from the evidence adduced by the parties.
15. ' The decision given by the Labour Appellate Tribunal is just and proper and does not warrant interference in this writ jurisdiction. Consequently, this Constitution Petition No,D-1228 of 1997 is hereby dismissed, but their will be no order as to costs.