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Appeal No. GT‑791 of 1977, decided on 9th June, 1979.

‑‑Ss. 2 (xxviii) 25‑A‑‑Grievance petition ‑ Limitation‑Petition barred by time‑Decided on merits‑Delay deemed to have been condoned.

Khairati and 4 others v. Aleem‑ud‑Dan and another P L D 1973 S C 295 rel.

‑‑Ss. 2 (xxviii) & 25‑A and West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)‑Petition seeking relief in respect of right guaranteed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Petitioner must be covered by definition of "Workman" under Ordinance ibid and not under Industrial Relation Ordinance, 1.969‑Whether or not an employee a workman‑Determining factor‑Direct, immediate and substan tial part of work for which employed and not sundry duties incidentally performed ‑ District Accounts Officer without any assistant or peon under him doing himself audit, checking and compiling of accounts‑Held, a workman.

Jasmins Cotton and Silk Mills Karachi v. Shujahat Ali 1974 P L C Note 28 at p. 17 and Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1975 L L C 211 rel.

Muhammad Asghar Malik for Appellant.

Lt.‑Col. (Retd.) Ismatullah for Respondent.

Date of hearing: 20th May, 1979.

This is an appeal against the decision, dated 22nd October, 1977 of Punjab Labour Court No. 1, Lahore.

2. Muhammad Aslam Shah Jaffary, appellant was an Audit Officer. Previously he was a District Accountant. In 1974 he was promoted as District Accounts Officer. His services were terminated vide order, dated 19th August, 1976 as no longer required. He filed a petition under section 25‑A of Industrial Relations Ordinance,, 1969 on 18th November, 1976 alongwith which he also filed an application under section 5 of the Limitatlon Act for the condonation of delay. The learned Labour Court dismissed the petition on the ground that the appellant was not a workman.

3. Aggrieved by the above decision Muhammad Aslam Shah Jaffary, appellant has preferred this appeal.

4. The learned counsel for the respondent raised a preliminary objection that the petition was barred by time. Since the Labour Court has decided the case on merits the delay is deemed to have been condo ned. As neither any cross‑objection nor any cross‑appeal has been filed to challenge the condonation of delay this point cannot now be raised, I am fortified in this view by the judgment of the Supreme Court in the case Khairati and 4 others v. Amin‑ud‑Din and another (PLD1973SC295).

5. Since the petition under section 25‑A of the Industrial Relations Ordinance, 1969 was filed in respect of a right guaranteed or secured to the appellant by or under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968, it has to be seen as to whether the appellant comes within the ambit of section 2(i) of the said Ordinance, which reads as under :‑

"Workman" means any person employed in any industrial or com mercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.

In this connection it is well‑established that in order to determine whether a person is a workman or not, one has to look to the direct, immediate and the substantial part of the work for which he was employed and not the sundry duties incidentally performed by him.

6. From the perusal of the record I find that the Managing Director of Punjab Agricultural Development and Supplies Corporation issued order Exh. D‑1 in connection with the District Accounts Officer for guid ance of and compliance by all concerned as under :‑

(i) The District Accounts Officers are redesignated as District Audit Officers and their duties are as under :‑

(a) Pre‑audit.‑(i) Pre‑audit of pay and Allowance Bills, T. A./D.A. Bills and other transfer allowance bills in respect of all P. A. D. and S. C. employees located within the Districts.

(ii) Pre‑audit of all bills payable out of incidentals and contingencies (except petty items costing Rs. 50 and below).

(b) Post Audit‑100% post audit of the following in respect of P. A. C. and S. C. Establishment within the District :‑

(i) Cash Accounts

(ii) Stock Accounts ;

(iii) Monthly sale and stock accounts ;

(iv) Monthly incidental accounts;

(v) Monthly Office Contingencies Accounts.

(c) Reconciliation of Cash Deposits in the Bank.‑To prepare a month ly reconciliation statement in respect of sale proceeds deposited in the field bank and then transfer to A. M's. Sale Collection Accounts. The reconciliation statement of Seed and Fertilizer etc. before submission to the Accounts Division by District Audit Officer.

(d) Physical Stock Taking of Stocks.‑At least 5 /a check of stocks held at Bulk Depot in a quarter.

(e) Verification of Receipt Entries.‑To verify receipt of fertilizer, seed and other stores and to prepare reconciliation statement for the stocks in transit.

Note‑These functions shall be performed by the District Accountant where no District Audit Officer is posted.

(ii) For administrative control they will be under the Chief Accoun tant but for local requirements such as C. Leave, staff and stationery etc. they will have to approach the R.M./D.M. whoso ever is nearer.

(iii) All the audit reports prepared by the Audit Officers will be dis cussed with the Officer concerned and signed by the Field Officers (A.M./D.M./AMs. (Seeds)‑Processing Officer, as the case may be) in token of their having discussed and gone through the same.

(iv) Copies of all transfer memos. regarding transfer of stocks and stores should be forwarded to the District Audit Officer concerned."

7. The word audit' as given in Woharton's Laws Loxicon means as under :‑

"Audit, and examining of accounts. An audit may be either detailed or administrative, and is usually both. A detailed audit is a comparison of vouchers with entries of payment, in order that the party whose accounts are audited may not debit his employer with payments not in fact made. An administrative audit is a compari son of payment with authorities to pay, in order that the party whose accounts are audited may not debit his employer with payments not authorised."

8. The appellant before the Labour Courts stated that he joined service as an Audit Officer but became District Audit Officer in 1974 ; that at the time of termination he was at Muzaffargarh ; that there was no other organisation of Audit in District Muzaffargarh ; that he used to audit the amounts of Assistant Manager, District Manager and Resident Manager ; that there was neither any accounts clerk working with him no he bad any assistant; that he had eight years' experience in audit; that the duty of an Accounts Officer was that he should ensure that all payments have been made in accordance with the regulations and law that he had to check supporting vouchers and to compile accounts ; and that he had no peon working under him.

9. From the above it is clear that the appellant was a workman as defined under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968. After the above evidence, the onus was on the respondent to prove that the appellant was not a workman. Since the respondent failed to discharge the onus placed upon him, the presumption would arise in favour of the appellant. I am fortified in this view by the judgment in the case, Jasmins Cotton and Silk Mills, Karachi v, Shujahat Ali (1974 P L C 17).

10. In the case, Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1975 L L C 211) it was held by the Supreme Court that a Chief Accountant drawing a salary of Rs. 1,050 and acting under the instruc tions of Incharge of Accounts Section of the Company was workman within the ambit of section 2(i) of the West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968. Therefore, I am satisfied that the appellant was a workman and his services could not have been terminated without compliance of Standing Order IS (4).

11. I, accordingly, accept the appeal, set aside the decision of the Labour Court and direct that the appellant be re‑instated with back benefits.

A. E. Appeal accepted.

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