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Appeal No. KAR‑12 of 1983, heard on 15th March, 1983.

West Pakistan

--‑‑S. 2 (i)‑"Workman"‑Whether or not an employee a workman* Designation not essential on vital factor for determination of status‑Nature of duties for which employed and which he was required to perform‑Determining factor ‑ Accounts Officer- Original appointment order not specifying job but mentioning 6 months' probation period as against 3 months in case of workers -Confirmation order indicating appointment in Management Grade and that services liable to termination on one month's notice and that service would be governed by normal terms and conditions adopted by Management as against workers whose services were governed by relevant labour laws‑Performing primarily duties of calculating wages including overtime wages of workers while routine duty of preparing wage sheets and payment vouchers left to time office working under his supervision‑Mere fact that wage sheets prepared by him for one month, held, immaterial‑Further circumstances indicative of his status (1) not entitled to overtime allowance but receiving compensatory leave in lieu of overtime work and (2) not a member of Workers' Union‑Such employee, in circumstances, held, not a workman and not entitled to grievance petition against termination of service‑Grievance petition‑Indus trial Relations Ordinance (XXIII of 1969), S. 25‑A.

Johnson and Johnson v. Zubair Ahmed 1.980 P L C 622 and Chairman, Brooke Bond (Pakistan) Limited v. General Secretary, Union Karkunane Brooke Bond P L D 1969 Lab. 717 rel.

Mrs. E. C. Pinto for Appellant.

S. S. Jahangir Khan for Respondent.

Date of hearing : 15th March, 1983.

DECISION

This appeal is directed against the decision of the learned Third Labour Court, given on 13th December 1982, dismissing ‑the grievance petition of the appellant against the termination of his services on the ground that the appellant‑ does not fall within the definition of a workman and hence he has no right to challenge the termination of his services through a grievance petition.

2. The admitted facts of this case are that by an undated memoran dum the appellant was employed on probation in the respondent‑Company on a consolidated salary of Rs.1,100. He was required to join the respondent‑Company as soon as practicable but not later than 4th March, 1981. The appointment letter further provides that the appellant would perform whatever duty is assigned to him and such duty would be carried out by him to the satisfaction of his superiors. It was also stated in the said letter of appointment that the appointee should be prepared to work in any shift assigned to him. According to his letter of appoint ment, the appellant's probation should have come to an end on 4th September, 1981, as it appears from the endorsement on the office copy of the appointment letter that the appellant had joined his duties in the respondent‑Company on 4th March, 1981, but the appellant was confirmed is his appointment vide letter, dated 17th October, 1981. His letter of confirmation, however, provides that the appellant was confirmed in the Management Grade‑I as Accounts Officer with effect from 5th September, 1981 and that he was entitled to basic salary of Rs. 850 p. m. and in addition would receive House Rent at the rate of Rs. 260 p. m., Con veyance allowance of Rs. 100 p. m. and the Cost of Living Allowance of Rs. 40 p. m. as admissible under the Employees' Cost of Living (Relief) (Amendment) Ordinance, 1981. It was also provided in the said letter of confirmation that the appellant's services are liable to termination on one month's notice on either side or pay in lieu thereof. By letter, dated 12th December, 1981, the services of the appellant were terminated with immediate effect, as per terms of paragraph 6 of his letter of appointment which presumably refer to one month's notice for the ter mination of services and the appellant was advised to collect his dues from the company on the production of the usual clearance certificate. Dissatisfied with the said letter of termination of services, the appellant gave a grievance notice to the respondent‑Company but as he was not satisfied with the reply of the respondent‑Company to the said grievance notice, the appellant preferred a grievance petition before the learned Third Labour Court. The appellant examined himself before the learned Labour Court while the respondent examined Muhammad Younas, Factory Manager of the respondent‑Company. An application was also submitted by the appellant on 5th August, 1982 for summoning of twelve categories of documents by the respondent, out of which the respondent produced eight categories of the required documents but contended that the remaining four categories of documents mainly consisting of punch cards and internal office order files were not produced on the ground that the punch cards are destroyed as they are reproduced on attendance registers from which wages are calculated and that no specific file regard ing the internal office orders is maintained. The learned Labour Court has taken the view that not only the letter of appointment of the appellant and the letter of his confirmation indicated that he was being appointed in the managerial grade but further the nature of duties performed by the appellant were neither manual or clerical and hence the appellant did not fall within the definition of workmen for the purposes of the labour laws.

3. I have heard Mrs. E. C. Pinto, the learned counsel for the appel lant, and Mr. S. S. Jahangir Khan, Advocate, who appeared for the respondent. The two learned counsel took me through the record of the case including various documents produced by the witnesses. Mrs. Pinto made a two‑fold submission. firstly, that the nature of the work performed by the appellant in the respondent's factory was of routine and clerical nature and hence he is deemed to be a workman, and secondly, that the action of the respondent‑Company in suddenly termina ting the services of the appellant without assigning any valid ground for doing so was invalid and hence ought not to have been sustained by the learned Labour Court. In support of her first contention she relied upon the evidence of the appellant and the admissions made by the respondent witness, Muhammad Younas, before the learned Labour Court.

4. Although the appellant, in his grievance notice, dated 23rd January, 1982, has claimed that he was employed with the respondent Company as a permanent workman, namely Accounts Assistant, there is unimpeachable evidence to indicate that the appellant was employed as an Officer in the managerial grade. No doubt, the appellant's letter of appointment does not specifically state that he was appointed as an Officer or in the managerial grade, but it does provide, firstly, that he would be on probation for the first six months of his employment, and secondly, that his appointment would be covered by normal terms and conditions adopted by the management. These terms may be contrasted with the letters of probationary appointments of workmen issued by the respondent‑Company which appears as Annexures '1R‑1"and "R‑2" of the record of the learned Labour Court. These letters of appointment ‑provide that the workmen would be on probation for a period of three months as against six months' probationary period of the appellant and that the workman concerned would be governed by the relevant labour laws, rules and regulations of the Company, as against the provisions in the appointment letter of the respondent omitting reference to labour laws and providing that he would be governed by the rules and regulations of the Company. The confirmation letter, dated 17th October, 1981, is more specific as to the nature of appointment of the appellant and provides that he has been confirmed as Accounts Officer in the management grade I with effect from 5th September, 1981. In other words, the appellant was confirmed in his appointment after the expiry of six months' probationary period which had been specified in his letter of original appointment. No exception was taken by the appellant to his confirmation after the expiry of six months' probationary period. This would indicate that the appellant had accepted the position that he was not a workman but a4 officer in the management cadre as otherwise he should have been confirm ed on putting in probationary period of three months as provided in Stand ing Order 1. The appellant also took no exception to the further assertion made in the said letter. of confirmation that he was confirmed in the management grade 1. As such the appellant is deemed to have accepted the position that he was employed in the management grade. Furthermore, the appellant was not only employed on basic wages of Rs. 850 p.m. in the scale of Rs. 850‑50‑1,050‑75‑1 4 t but further was eligible to receive House Rent at the rate of Rs. 260 p. m., Conveyance Allowance at the, rate of Rs. 100 p. m. and the Cost of Living Allowance of Rs. 40 p. m. It may be pointed out that this last allowance is eligible to all employees whose monthly wages do not exceed Rs. 1,500 p. m. Since his emolu ment did not exceed Rs.'1,500 p. m. the appellant was entitled to said C. L. A. of Rs. 40 p. m. The said letter of confirmation' also provided that the services of the appellant were liable to termination on one month's wages either side or pay in lieu thereof. Such a provision could not have been made in the case of appointment of a workman. The fact that the appellant did not raise any objection to this term but accepted the same further confirms the reference that the appellant A had accepted the position that he was an Officer in the respondent Company and was not a workman under the labour laws. The falsehood of the appellant's claim that he was appointed as Accounts Assistant is further established from the .latter, dated 16th November, 1981. addressed by the appellant to the General Manager, Finance of the respondent‑Company wherein he has described himself as Accounts Officer. In an earlier letter also dated 25th July, 1981, addressed to the Managing Director of the respondent‑Company requesting for grant of compensatory leave the appellant has described himself as Accounts Officer.

5. The designation of an employee, however, is not the essential la or vital factor in determining whether such employee is or is not a workman for the purposes .of the labour laws, but the nature of duties for which he was employed and which he was required to perform. It has been held by this Tribunal in the case of Johnso In and Johnson v. Zubair Ahmad (1980 P L C 622) that only a person falling within the definition of "workman" as given in section 2 (i) of the Sind .Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is entitled to file a grievance petition under clause (3) of Standing Order 12 read with section 25‑A, I. R. O. to challenge the termination of his services, and that further the burden of proof ordinarily would be on the employee who claims that he is a workman falling under the aforesaid Ordinance. In the instant case both in his grievance notice and in his grievance petition, the appellant has claimed that he 'was doing both manual and clerical work under the supervision and control of the respondent. There is, however, no evidence in support of the appellant's claim that he was performing or was required to perform manual work of any sort. Coming to the claim of the appellant that he was performing or was required to perform clerical work, although the appellant in his grievance petition has claimed that the clerical work of the entire factory used to be taken from him, including preparation of accounts, journals/ledgers, vouchers and salary slips, he failed to produce any document indicating performance of such work by him. In his cross‑examination he was forced to admit that he did not prepare payment vouchers for payment of wages every month. In fact no payment vouchers for payment of wages prepared by him were produced by him. All that the appellant was able to maintain in his cross‑examination was that be used to calculate the wages of worker, on the wages sheets but he did not write their names which were written by the time‑keeper. According to him it took about six days to calculate the wages of employees every month and wages were disbursed by the cashier. This shows that there was a time‑keeper and cashier in the respondent mills and that they were working under his direction though they may also have been under the control of the Factory Manager. The witness of the respondent, Muhammad Younus, has stated that the appellant did not maintain or prepare the wages sheets of the workers but only calculated the wages of workmen and the staff and supervised the time‑office. He produced the wages sheet of the workers for the month of July, 1981 which was not prepared by the appellant although the wage, were admittedly computed by the appellant. The witness, however, admitted that the wages sheets for the temporary staff for the month of November, 1981, has been prepared by the appellant in his hand and that further the appellant has calculated overtime payment for the workers in the overtime sheets, for the workers in November, 1981. Merely because the appellant had prepared the wages sheet for the temporary staff for one month or had calculated the wages sheets of workers for one or more months and the overtime payment to workers would not be sufficient for establishing that the appellant falls within the definition of workman given in the Sind Industrial and Commercial Employment (Standing Orders). Ordinance, 1968. This take about six days in a month as admitted by the appellant. A Division Bench of the Lahore High Court in the case reported as Chairman Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane‑Brooke Bond (P L D 1969 Lah.717) has held that the true nature of the duties performed by the employees is the determin ing factor in ascertaining if he was a workman or not .for the purposes of the Industrial Disputes Ordinance, 1959, wherein the definition of workman was similar to that contained in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and the test laid down in the above reported case for determining whether an employee was a workman was to look to the direct and substantial part of the work for which he was employed and not to the sundry duties incidentally performed by him. The primary duties of the appellant as Accounts Officer appear to have been to calculate the wages including overtime wages of the workers while the routine duties of preparing the wages sheets and the payment vouchers was left to the time‑office and possibly the Accounts Assistant. There is evidence to show that at the relevant time there was an Accounts Assistant by name of Ibrar Hussain. Furthermore, according to the respondent's witnesses, Muhammad Younus, the time‑office was under the appellant. There was, thus, no need for the appellant to perform routine duties which would have been entrusted to his Assistants. There are two more circumstances indicating that the appellant was not a workman but an Officer in the managerial Grade. The first is that the appellant was not entitled to or receiving overtime allowance but was in receipt of compensatory leave in lieu of overtime work done by him. I have already referred to the letter, dated 25th July, 1981, addressed by the appellant to the Managing Director of the respondent‑Company ‑asking for compensatory leave in lieu of' overtime work done by him on 21st July, 1981. In fact the appellant in the said letter does not even refer to overtime work but has requested compensatory leave on the ground of his late sitting on 21st July, 1981. The next circumstance is that the appellant was not a member of any Workers' Union and in fact professed ignorance of the fact that there was a C. B. A. in the establishment of the respondent. The fact that there was a C. B. A. has been established in the Memorandum of Settlement, dated 14th January, 1982.

6. For the reasons discussed by me above, I find no merit in this appeal and would, therefore, dismiss the same.

A. E. Appeal dismissed.

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