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Appeal No. G.T. 807 of 1980; decided on 7th June, 1982.

---S. 2 (.xxviii.) --West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2 (i)--Onus to prove that employee was not a workman always upon an employee--To show that a particular person was employed in managerial, administrative or supervisory capacity, his duties are to be shown--Duties and not designation are determining criterion--Employer failed to discharge onus by not giving detail of duties performed by employee--Assistant Co ordination Officer, getting total slaray of Rs. 1215 p.m. declared workman--Sanctioning of leave applications not sufficient to prove that he was supervisor covered by exceptions--But in retrenchment cases, in order to establish his right and benefit from rule of first come last go, employee must also prove that he comes within definition of S.2(i) of Standing Orders Ordinance--Onus in this respect upon employee- Adverse presumption drawn from failure to produce evidence of duties.

P L J 1975 Kar. 25; 1979 P L C 367; 1979 P L C 370 and 1979 PLC 443 rel.

1979 P L C 194; 1980 P L C 644 ; 1979 P L C 297 and 1980 P L C 622 distinguished.

1980 P L C 622 differed.

Munawar Ahmad Javed for Appellant.

Mian Abdul Latif for Respondent.

Date of hearing: 17th May, 1982.

This appeal arises from the order dated 11-11-1980, passed by the learned Presiding Officer Punjab Labour Court No.5, Faisalabad whereby the grievance petition of the appellant was dismissed holding that he was not covered by the definition of workman or worker given in section 2, clause (xxviii) of the I.R.O., 1969.

2. The appellant was Asstt. Co-Ordination Officer on the basic pay of Rs.850 plus allowances totalling Rs. 1,215. His service was terminated on the ground of the abolition of his post. The appellant served the respondent with the grievance notice and when no redress came, brought the grievance petition. Although, in the written statement a clear objection was taken to the effect that the appellant was neither a worker nor a workman as defined in section 2(xxviii) of the IRO, 1969 on the ground that the nature of his employment being administrative and supervisory and his monthly emoluments exceeded Rs.800, yet no evidence was produced by the appellant on the question. He has himself come forward in the witness-box to state his duties and the nature of work entrusted to him. On the other hand, on behalf of the respondent leave applications Exh.D.7 to Exh.D.13 sanctioned by the appellant in the capacity of head of the department were brought on the record in proof of the fact that he was not covered by the definition of workman. Learned counsel for the appellant has argued that the onus was upon the employer to prove that the appellant was not a workman. He relied upon P L J 1975 Kar. 25, 1979 P L C 367, 1979 P L C 370 and 1979 PLC 443. In 1979 P L C 370 it has been observed that onus is upon the employer to show that the employee is not a workman and either is supervisor drawing more than Rs.800 as pay or is employed in a managerial or administrative capacity. I find myself in total agreement with the observation made in this ruling. So far as the definition of worker or workman under section 2 (xxviii) of the I.R.O., 1969 is concerned, the onus is always upon the employer who wishes to exclude the employee from the wide and all embracing definitions of workman. Always the onus is upon that person who alleges that exceptions applying according to the definition of workmen given in the I.R.O. every employee who has been employed for the business of the employer is a workman except those who are employed in the managerial or adminis trative capacity or whose duties are supervisory and their pay exceeds Rs.800. So the onus is upon the respondent to prove that the appellant was covered by the exceptions. As has been mentioned above only few leave applications have been brought on the record which were sanctioned by the appellant. This in my view was not sufficient to make the exceptions applicable. It is not necessary that a person exercising supervisory power can accept leave applications. Any incharge who has supervisory capacity may sanction casual leaves. For supervision more than powers to accept or reject leave application is required. Likewise to show that a particular person is employed in the managerial or administrative capacity, his duties are to be shown. But, there is not an iota of evidence on the record to show what actually were the duties of the appellant. Not the designation but the duties to be performed can be correct criterion to come to the conclusion whether according to the nature of the duties that employee concerned is employed in a mangerial or administrative capacity or has supervisory control over his subordinates too or is a workman. Even this is not clear who was the subordinate of the appellant and what was the nature of his supervisory duties if at all he was in any manner exercising supervisory powers. Learned counsel for the respondent has cited 1979 P L C 194, 1980 P L C 644 and 1980 P L C 622. The first mentioned authority is not helpful, because in the case from which it arose duties of the person concerned had been given in evidence which were" production planning and supervision of the printing section as well as conversing in printing orders". It is clear that the duties assigned to the person concerned had been given in the evidence whereas in the present case there is no such evidence on the record. Moreover, in this ruling it was observed that for the purpose of the decision of the said case, the definition of workman given in the Standing Orders Ordinance was relevant and not one given in the 1969. So, the authority is not helpful. The question involved in 1980 P L C 622 was different from the one involved in the present case. It that found that the definition of workman given in the I.R.O. excluded the terminated, removed, retrenched and dismissed persons except such persons whose dismissal, discharge, retrenchmet, lay off from employment that in connection with or in consequence of an industrial dispute. As no such question is involved in the present case, I have not to express my opinion on the point. Although, I cannot find myself in agreement with the observa tions made by my learned brother in the said case. In 1979 P L C 644, the definition of workman given in the Standing Orders Ordinance, 1968 that involved and not the one given in the I.R.O., therefore, the ruling is distinguishable from the present case. Learned counsel has also cited 1979 P L C 297 but there also the definition of workman given in the Standing Orders Ordinance was involved. I, therefore, hold that the appellant is covered by the definition of workman given in the I. R.O., 1969.

3. But the trouble does not end here. In order to succeed, the appellant had also to show that he was covered by the definition of workman given in the Standing Orders Ordinance, because he has to show that he had a guaranteed right by any law. In the Standing Orders. Ordinance, the provision is that in cases of restrenchment rule B of first come last go will be followed unless the appellant-comes within the definition of workman given in section 2(i) of the Standing Orders Ordinance, he cannot succeed. The definition of workman given in Standing Orders Ordinance is not so wide as the one given in the I.R.O., therefore, there is not initial presumption that every employee is a workman unless the employer shows otherwise. So, the onus in this respect is upon the employee to show that he is doing skilled or unskilled manual or clerical work and for that evidence as regards his duties is necessary. Since the appellant did not produce any evidence about his duties, it is difficult to hold that he is covered by the definition of workman given in Standing Orders Ordinance. In view of C the fact that the appellant had been sanctioning leave application of the persons working under him, the presumption would be that the clerical work was being done by his subordinates whose applications he had been sanctioning and that he that not doing clerical work. That presumption is rebuttable but since the appellant has not produced any evidence on the point, the findings must go against him.

4. As a result of- the observations made above, I hold that the grievance petition of the appellant was rightly dismissed. There is no force in the appeal which too is disallowed.

M. I.

Appeal dismissed.

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