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Application No.131 of 1985, decided on 11th February, 1986.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑Ss. 2 (viii) & 25‑A‑‑Grievance petition against termination‑ "Workman", meaning and scope‑‑To be within purview of 'workman' nature of employee's work, held, would have to be either manual, whether skilled or unskilled, or clerical.

The test for determining the question whether an employee should be a workman for the purpose of the Industrial Relations Ordinance, the nature of his work must be either manual, whether skilled or unskilled, or clerical. According to this definition a 'workman' is employed in an industry or commercial establishment to do skilled or unskilled work, which is manual or clerical. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. Both the manual and clerical work in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him.

‑‑‑S. 2(viii)‑‑"Workman"‑‑Duties performed by skilled officer‑‑Main and substantial part of duties of employee being those of skilled officer, such duties, held, would. not be manual labour‑‑Employee not engaged in manual labour would not fall within definition of "workman".

‑‑S. 25‑A‑‑Grievance petition‑‑Domestic enquiry‑‑Mode of conduct of‑ Record would show that enquiry was proper and findings based on such enquiry, being proper and in accordance with legal requirement, interference by Labour Court, held, would not be justified.

H . A. Jaffery for Applicant.

Iqbal Habib for Respondent.

This application under section 25‑A, I R O, 1969 was dismissed by my learned predecessor vide his order, dated 21‑11‑1984 mainly on the point that the said application is time‑barred. The applicant preferred appeal bearing No. KAR‑313/1984 before learned Sind Labour Appellate Tribunal, Karachi. The learned Sind Labour Appellate Tribunal set aside the impugned order and remanded the case to this Court for decision on merits also. On receipt of R & P notices were issued to the parties. The learned Advocate/ Representative appearing for the respective parties have adopted the same arguments which are available on record. In these circumstances now I propose to deal with the matter on merits.

2. Briefly stated the facts of the case as disclosed by the applicant are as follows.

3. That he was engaged by the respondent on 3‑10‑1966 and worked as an Assistant in Motijheel Branch Dacca and Talpur Road Branch, Karachi. Due to his satisfactory performance he was granted his due increments and was ultimately promoted as Officer Grade‑II but allegedly in that capacity he also performed the work of clerical and manual nature such as preparation of L C proposals. While he was posted in I.I. Chundrigar Road Branch he received charge‑sheet, dated 16/19th February, 1981 wherein it was alleged that while preparing various L.C. proposals at Talpur Road Branch the applicant had supplied fabricated figure pertaining to Messrs Standard Book Depot, Aboo Traders and others and that approval was obtained for opening of L.C. at 25% margin for import of Ethunomide Pharmaceutical Raw Materials instead of Chemicals which was subject to 50% margin. The applicant submitted an application for supplying him photo copies of the relevant documents to enable him to prepare his explanation as according to him the allegation in the charge‑sheet were too vague. The respondent did not exceed to the request of the applicant and held domestic enquiry in May, 1981. The applicant alleged that the domestic enquiry was farce and the enquiry officer was also biased. The applicant preferred departmental appeal which was ultimately rejected on 11th July, 1982. The applicant also addressed grievance notice to the respondent on 19‑4‑1983 which was not replied and then filed the present application for reinstatement in service with full back benefits.

4. The case of the respondent in their reply statement is that the termination of the applicants services' is fair and proper. The domestic enquiry was held against the applicant alongwith other staff members of the branch who were also involved in exposing the respondent Bank to a huge financial loss and ultimately they were removed from service. The respondent also clerified that the applicant was promoted as Grade III Officer in 1974 and as Officer Grade‑II in 1977. He was also granted power of attorney in 1976. They 'denied that the duties performed by the applicant were of a clerical nature. The applicant was also allowed full opportunity of defence, which he availed and the enquiry officer had allowed the applicant to see the relevant documents during working hours of the bank. The respondent also took up the plea that the application is not maintainable and he is not a workman as defined under the provisions of relevant Labour Laws.

5. The following points require determination in this: ‑

(i) Whether the application is time‑barred

(ii) Whether the applicant is a workman or not

(iii) Whether the applicant has been removed illegally and arbitrarily from service by the respondent

6. Both the parties filed their respective affidavits in evidence and documentary evidence has also come on record. I have perused the same as well as the written arguments submitted by both the parties.

POINT NO.I

7. This point has already been decided by my learned predecessor vide his order, dated 21‑11‑1984 and since I am supposed to decide the matter on merits therefore, this point need no further discussion.

POINT NO.II

8. The test for determining the question whether an employee should' be a workman for the purpose of the Industrial Relations Ordinance, the nature of his work must be either manual, whether skilled or unskilled, or clerical. According to this definition a 'workman' is employed in an industry or commercial establishment to do skilled or unskilled work, which is manual or clerical. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. Both the manual and clerical work in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate, and the substantial part of the work for which i.e. is employed and not to the sundry duties incidentally performed by him. Applying the above test in the facts and circumstances of the present case it will be seen that the applicant admittedly was Grade‑II Officer at the relevant time. In his affidavit in evidence he has stated that as Grade‑II Officer he performed the following work of clerical and manual nature: ‑

"(a) Retirement of PADS (b) Endorsement of Licences (c) Checking of Form X 'I' (d) Posting of Margin, Liability and PAD vouchers (I) Preparation of S B P returns (J) Preparation of PAD, LIM, LAFB, LAPC, FDBC, FBP and other Miscellaneous statements, (J) Preparation of Export statements for 'A' and Form 'B' (L) Submission of Import Licences utilized and unutilised (M) Submission of Bill Entries. Form 'A' and Form 'B' (J) Recovery of cost of licences. (1) Import Export Registration (2) Submission Import Licences and Revalidation, (3) Retirement of PADS (4) FDBC (5) FBP (6) LAFB (7) LAPC (8) LIM (9) Miscellaneous."

In cross‑examination the applicant admitted that at the relevant time Mr. Mohiuddin Sethi was working as Grade‑III Officer in the same branch and he was junior to him. He also admitted that the services of Mr. Wakeel Ahmed (Grade I Officer), Mr. Dildar Ali (Grade‑II Officer) and Mr. Mohiuddin Sethi were also terminated in connection with the charges, which were framed against the applicant. He further admitted that normally his duty was the preparation of approval for L C and submission to the Manager for counter signature. While preparing approval he had to specify the margin for import of the particular commodity. As against the above evidence the witness of the respondent who was the enquiry officer has mentioned only about the enquiry proceedings and as such nothing about the nature of duties but the respondents have relied upon the cross‑examination to the applicant Himself when he deposed as follows: ‑

"It is correct that clerk did not use to sign those documents and they have been signed by me as an Officer. It is correct that I was holder of power of attorney of the Bank."

Keeping in view the above admission of the applicant as well as that duties which even according to the applicant himself he had performed there could hardly be any doubt that the main and substantial part o B his duties were those of a skilled officer. Thus such a work cannot be called manual labour. In view of this conclusion it is held that th applicant has failed to prove that he falls within the definition of a 'workman' as defined by Law.

POINT NO.III

9. Admittedly the domestic enquiry was held by Assistant Vice President, Mr. Amanullah Khan who appeared in this Court as the respondents witness. Having examined his statement and the enquiry proceedings I have come to the conclusion that the enquiry was proper and the findings of the enquiry officer require no interference. Keeping in view the gravity of the misconduct alleged to have been committed by the applicant and his accomplice all these persons were removed from service. In this situation it cannot be said that the applicant's removal was arbitrary. The plea of the applicant that the charge‑sheet was vague or that copies of the enquiry proceedings should have been provided to the applicant are totally irrelevant and afterthought and the commulative effect of the entire evidence on record is that the applicant was rightly found guilty of the financial loss caused to the respondents which ultimately resulted in passing of the impugned order.

10. The upshot of the above discussion is that the application under section 25‑A, I. R.O. , 1969 having no force on merits is dismissed.

A.A.

Application dismissed.

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