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(a)

Punjab Road

--‑‑S. 7 read with Industrial Relations Ordinance (XXIII of 1969), Ss. 2 (xxviii) & 25‑A and West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)‑Assistant Traffic Manager of Road Transport Board ‑ Not, performing mainly mobile duty‑Performing duties of administering, control and supervision of work of subordinates‑Getting pay above Rs. 800 p.m. ‑ Not a "workman" either under ‑ Punjab Road Transport Workers Ordinance, 1961 or Industrial Relations Ordin ance, 1969‑Contention that there existed no hire and fire powers with him hence he being not an employer was within definition of "workman" under Industrial Relations Ordinance, 1969‑Repelled Held, mere fact that employee who is not employer cannot neces sarily be a "workman" ‑ Grievance petition seeking right of pro motion‑Such right being not guaranteed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 definition of "workman" under that Ordinance, held, not relevant‑Petitioner, held, not being a "workman" either under Industrial Relations Ordinance, 1969 or Punjab Road Transport Workers Ordinance, 1961 could not maintain grievance petition before Labour Court.

(b) Industrial Relations Ordinance (XXIII of 1969)‑---

‑‑‑‑ S. 25‑A ‑ Non‑joinder of parties ‑ Grievance petition seeking right of promotion ‑ Persons already promoted not impleaded -Non‑joinder of such persons, held, not fatal so as to make petition not maintainable.

Muhammad Salim Khan for Appellant (in Appeal No. LHR 525 of 1980/Pb).

Khalid Farooq for Respondent (in Appeal No. DGK‑568 of 1980/Pb).

Date of hearing : 24th October, 1981.

The above‑captioned two appeals arise from the same judgment dated 19‑5‑1980 delivered by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, therefore, they are being decided together through this single judgment. The judgment is being recorded‑ in the appeal brought by the P.R.T.B., therefore, Gul Bahar Khan will be.men tioned as respondent and P.R.T.B. as the appellant, but the judgment will be read in both the cases.

2. The respondent has been directed to be promoted firstly as Traffic Manager with effect from 17‑5‑1975 with back. benefits. It was declared that he was eligible for promotion as District Manager with effect from 17‑5‑1977, but the direction given was that his case for promotion to the post of District Manager be considered by the P.R.T.B. within three months and order be passed either allowing him promotion or refusing the same and that if the respondent was dissatisfied by the order, he may knock the door of the competent Court. The respondent has challenged the order of the lower Court to the extent it did not direct unqualified promotion of the respondent as D. M. and ordered that the case of his promotion to the said post be considered within three months and either he be promoted or his promotion refused. The P.R.T.B. has challenged the whole order and according to it, the respondent is not eligible for promotion as District Manager. So far as the post of Traffic Manager is concerned, he has been promoted to the said post but not with effect from 17‑5‑1975. It has been contended on behalf of the appellant that the respondent is not a workman and thus the Labour Court has no jurisdic tion. The other objection is that the persons who have already been promoted were necessary parties, therefore, the petition was not maintainable.

3. The respondent had grievance against his employer so far as the question of promotion was concerned, therefore, it was not necessary to implead the persons, who had been promoted over his head. If he had impleaded them as parties, it would have been in the fitness of things, but omission .to do so is not fatal to the case. If the persons, who have already been promoted, feel aggrieved, they not being party, would not be bound by the decision of the Labour Court and that of this Tribunal and will be at liberty to come to the Labour Court, if otherwise they have any right guaranteed by any law, settlement or award. The objection, therefore, was rightly overruled by the trial Court.

4. The other point which has been argued before me is that the respondent is not a workman. The learned counsel for the appellant has said that the appellant is neither covered by the definition . of workman given in the Road Transport Workers Ordinance, nor West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 nor the Industrial Relations Ordinance, 1969. According to the definition given in Road Transport . Workers Ordinance, an employee who performs mobile duty is to be taken as a workman. So far as mobile duty is con cerned, the duties of the Assistant Traffic Manager (A.T.M.) are :‑

(1) To assist the Traffic Manager in matters connected with attending of breakdowns, accidents and preparation of traffic returns and duty roster of traffic staff ;

(2) To deal with public complaints and suggestions in regard to timings, bus stops, traffic irregularities, bus shelters and submit his findings to Traffic Manager.

The remaining duties are not [such which may have any direct con nection with mobile duties. Since the A.T.M. has to assist the Traffic Manager in matters connected with attending of breakdowns and accid ents, it means that the main duties in this respect are of the Traffic Manager and the A.T.M: has only to assist him. Obviously; for attending of break downs and accidents one has to go to the spot and in the same manner to deal with public complaints with regard to bus stops, traffic irregularities and bus shelters ; site inspection is to be made, but it cannot be said that the main‑duties of the A.T.M. are these. Accidents' and break downs do not take place daily., therefore, the A.T.M. has to travel to the spot only when it is necessary. Suggestions with regard to timings of buses can be made while sitting in the office and it is not necessary to go to the spot. As a matter of fact for making suggestions with regard to bus stops, the A.T.M. has not to go to the spot and moreover suggestions in this regard are to make off and on. Whenever there is any complaint about bus stops an4 bus shelters, site inspection may be made, but these duties are not to be performed daily, but only sparingly. Besides these duties, there are many other duties of the A.T.M. which are much more than the mobile duties. The other duties to be performed by the A.T.M. are :‑

(1) Supervision and surprise check of the work of the Yardmaster Assistant Yardmaster, Chief Inspectors etc.

(2) To ensure that road taxes of all the vehicles is paid and tax token exhibited by all the buses before the due date ;

(3) To make suggestions in the light of his experience and knowledge of operational area as would improve the operation of the Board services.

(4) In case of an A.T.M. holding charge of H. Qrs. or a sub‑office, his normal duties shall also include :‑

(a) General administration, control and supervision of the sub‑office concerned.

(b) The proper supervision of the stores, workshop staff and fleet if a workshop is also attached to the sub‑office.

(c) To attend to all correspondence work connected with the sub. office.

(d) To ensure proper checking and take steps to prevent leakage of revenues.

(e) To get the vehicles in depot ‑passed in time by the M.Y.E.

(f) To pay taxes in time and claim refunds against buses which remain off road in accordance with the rules.

5. To assist that T.M in the compilation of periodical Traffic Statistics and Graphs, time table and bus schedules, also dissemination of Time Tables and Bus Schedules to crew.

6. Shall be responsible for the maintenance of accounts for :‑

(a) Fuel, lubricants, engine oil, privilege and duty passes ;

(b) Shall attend in person or through his 'subordinates to complaints, police challans, breakdowns and accidents. ; shall be responsible for checking and corrections of daily balance of fuel, lubricants and oils. .

7. Shall be responsible for any other duties assigned. The definition of worker given in the Road Transport Workers Ordinance reads as under :‑

"Worker" means a person engaged on mobile duty and includes drivers, cleaners, conductors and checkers employed by or in a Road Trans port Service."

An employee to be covered by the definition must be engaged on mobile duty. Mobile duty should be such that the main duty should be to remain on voyage for sufficient period. Drivers, cleaners and conductors' function is to always remain on the bus when they are on duty. These employees have been only included in the definition, meaning that the employee who is primarily engaged on mobile duty has to remain on voyage for a period more than the period for which the drivers, cleaners and conductors remain on travelling duty. A.T.M. is not such an officer who has to remain on journey for a period more than the time the drivers, cleaners and 'conductors remain on Journey. The A.T.Ms‑ have to travel only for 480 miles per month, meaning that they have to travel 16 miles only a day‑8 miles to go to a place and 8 miles to come back. Such an officer cannot be said to be engaged on mainly mobile duty. According to the nature of the other duties of A.T.Ms. they have to spend mote time in the office than remaining on journey. So A.T.M. T.M. and District Manager cannot be said to have been engaged on mobile duty and the findings of the learned Labour Court in this respect does not appear to be correct. Anyhow, it is not necessary to maintain an application under section 25‑A of the Industrial Relations Ordinance, 1969 that the person coming to the Labour Court must be covered by the definition of workman given in the Road Transport Workers Ordinance. The material thing is that he should be covered by the definition of workman as given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969,, according to which, an employee whose main duty is to supervise and his pay exceeds Rs. 800 is excluded from the definition of workman. From the duty list of the respondent, enumerated above, it is apparent that his main function is of supervisory nature. He has to supervise and make surprise check of the work of Yardmasters, Assistant Yardmasters and Chief Inspectors etc. He has to check that the road taxes of all the vehicles under his control are paid and token exhibited by all the buses. His normal duties include general administration, control and supervision of the sub=office concerned. He has to supervise the store, workshop staff and fleet if the workshop is also attached to his sub‑office. He has to ensure proper checking and has to take steps to prevent leakage of revenues. No doubt, he has to assist the Traffic Managar in matters connected with attending of breakdowns, accidents and preparation of traffic returns, and duty rosters of traffic staff, but it does not mean that he has to prepare the returns and duty rosters himself or with his own hands. The returns may be prepared by a subordinate and he has to sign it. If the contrary view is taken, it would mean that the Traffic Manager has also to prepare the returns and duty rosters with his own hands, because the A.T.M. has only to assist him. Item No. 6 (b) of his duty roster makes it quite clear that so far as complaints, police challans, breakdowns and accidents axe concerned, he has not to prepare the reports himself but he may get them prepared by his subordinates. Item No. 6 (b) reads as under :‑‑:

"Shall attend in person or through his subordinate's to complaints, police challans, breakdowns and accidents, shall be responsible for checking and corrections of daily balance of fuel, lubricants and oils."

Admittedly, his pay is more than Rs. 800. His duties. being super visory and his pay being more than Rs. 800 per month, he clearly comes within the Exception of section 2 (xxviii) (b) of the Industrial Relations Ordinance, 1969. The learned counsel for the respondent has argued that .since the respondent had no power of hiring and firing, he is covered by the definition of workman, power of hiring and firing brings one within the definition of employer, but an employee who is not an employee cannot necessarily be a workman. So the mere fact that the respondent had no power of hire and fire would not include him in the definition of workman. The respondent no doubt has said in his statement that he is not responsible for the management, control and supervision of any worker of P.R.T.B nor has to do any managerial work, but from the duty roster, a discussed. above, it is quite clear that it is within his duties to administer, control and supervise the work of his subordinates. Mr. Khalid Hussain Qureshi, D. W. 2 has controverted the statement of the respondent. He has given a list of registers and says that clerks have to maintain them and the A.T.M. is to check the entries and put his signa tures. He clearly says that the statements are made by the Clerks who prepare accident reports and site plans. He further says that it is not the duty of the A.T.M. to check the oil of the engines, rather it is the duty of the Yardmaster. He also says that Yardmasters, Checkers, Booking Clerks, Depot Superintendents, Superintendents transport, Conductors, drivers Time checkers and other staff are inferior to the A.T.M. He has also said that the A.T.M. is drawing and disbursing officer and his duties are managerial. He no doubt said that the A.T.M. has to maintain the instructions register, but further on said that the clerks have to maintain instructions file and fuel consumption file. Even if it be said that the A.T.M. has to maintain the instructions register, this solitary act would not bring him within the definition of workman when all other duties are supervisory and managerial. I, therefore, hold that the A.T.M. of P.R.T.B. is not covered by the definition of workman as given in the industrial Relations Ordinance. 1969. This is unnecessary to see whether the respondent is covered by the definition of workman given in section 2 (i) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, because so far as the question of promotion is concerned, the said Ordinance does not guarantee any such right. The learned counsel for the respondent has argued that previously/ this court gave a finding in the case of one Muhammad Sadiq that' A.T.M. is covered by the definition of workman. May it be so but that finding may be applicable in that case, because the evidence which is on the present file may not have been produced in that case. The duty roster is a documentary evidence anal it has preference over the oral evidence. In the present case also if the statement of the respondent is looked into, one feels inclined to hold that he is covered by the definition of workman, but his statement stands controverted by the oral evidence of D. W. 1 and the duty roster clearly shows, as mentioned above, that his main duties are administrative, supervisory and managerial. A very little clerical work is to be done by him. Previously, the services of the respondent were terminated and he instead of coming to the Labour Court had gone to the ordinary civil Court and got his wrong redressed, but is not understandable why now he has come to the Labour Court.

5. As a result of the observations made above, I accept the appeal of the P.R.T.B. dismiss the appeal of Gul Bahar Khan, and setting aside the impugned decision of the trial Court, dismiss the grievance petition of the respondent given under section 25‑A of the Industrial Relations Ordinance, 1969. Present Mr. Muhammad Iqbal Khokhar for P.R.T'B. Nemo for the other side.

Appeal accepted.

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