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Appeals Nos. LHR‑498 and 501 of 1983, decided on 1st November, 1983.

‑‑-S. (xxviii) (b)‑"Workman" Checking and taking work Amounts to supervising work‑Employee taking work from workers‑A supervisor‑Pay exceeding Rs. 800 per month‑Exclud ed from definition of workman‑Powers of hire and fire necessary for "employer" and "Manager"‑Not necessary for supervisor P L D 1975 Kar. 342 held not applicable ; 1973 P L C 358 and 1973 P L C 355 dissented from].

PLD 1975 Kar. 342 held not applicable.

1973 P L C 358 and 1973 P L C 355 dissented from.

Agha Taj Muhammad for Appellant.

S. A. Latif for Respondent.

Date of hearing: 30th October, 1983.

The two appeals captioned above arise from the decision dated 20th July, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of Mushtaq Ahmad (herein after to be called the respondent) for the recovery of overtime wages for the period from 23rd February, 1977 to 5th September, 1977 was dismissed on the grounds that he was not a workman under the Industrial Relations Ordinance, 1969 and that his claim was time‑barred. The Railways (hereinafter to be described as the appellant) has challenged in its appeal the observation of the learned lower Court that the respondent is covered by the definition of workman as given in the Factories Act. As both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. Learned counsel for the appellant has argued that since the appel lant is covered by the definition of workman as given in the Factories Act, he is workman under the Industrial Relations Ordinance, 1969 also. The argument is ex facie untenable. The definition of workman given in the Factories Act and Industrial Relations Ordinance, 1969 is not the same. Only that person can bring an action under section 25‑A who is covered by the definition of workman given in the said Ordinance and not in Factory Act. The appellant admitted in cross‑examination that he took work from 250 workers but said that he did not check their work. This part of the statement of the appellant is self‑contradictory. Without checking one cannot take work from others. Without checking one cannot come to know if the workers are properly working or not. So by his admission that he takes work from 250 workers, it is clear that he checks the work of the said workers. Checking and taking work amounts to supervising the work. R. W. l said that painter section pinker section blacksmith section and tinsmith section ate under the appellant. He also after some hesitation stated that all officials from mistri upwards were supervisors. It is thus proved that the main duty of the appellant is to check and. supervise the work of his subordinates. The appellant said that his remunerations were Rs. 1,150. Thus, both the conditions given in clause (b) of section 2 (xxviii) of the Industrial Relations Ordinance, 1969 stand fulfilled to exclude the appellant from the pale of workman. Learned counsel for the appellant has cited 1973 P L C 358, 1973 P L C 355 and P L D 1975 Kar. 342. The Kar. Ruling is not germane to the facts of the present case inasmuch as the definition of workman given in section 2 (i) of Standing Orders Ordinance is involved in the said authority, whereas we are concerned with the definition given in Industrial Relations Ordinance, 1969. No doubt my learned predecessor Mr. Justice M. Jamil Asghar ha in 1973 P L C 358 and 355 held that the employee having no power of hire and fire is workman but with great respect to the view expressed by his Lordship. I do not agree. For a supervisor powers of hire and fire are not necessary. Such powers are necessary for employer' and Manager'. The learned lower Court thus has rightly held that the appellant is not a workman.

3. The finding of the learned lower Court is also correct that the claim of overtime wages from 23rd February, 1977 to 5th September, 1977 is time‑barred. The cause of grievance arose by the refusal to allow over time wages in 1977 but grievance notice was served and grievance petition was brought in 1981. The appeal of the respondent thus has no force.

4. The finding of the learned lower Court that the' appellant is a workman as defined in the Factories Act is also correct. According to the statement of R. W. 1, he is incharge of painter, carpenter blacksmith, tinsmith, collar and fitter sections. Needless to say that manufacturing process as defined in section 2 (g) of the Factories Act is done in the said sections. So the appeal of the appellant too is without any force.

5. As a result of the observations made above, both the appeals are dismissed in limine.

A.E. Appeal dismissed.

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