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Civil Appeal No. 54 of 1973, decided on 28th October, 1985.
(On Appeal from the Judgment and Order of the Lahore High Court, dated 22nd January, 1973, in L. P. A. 2/73).
‑‑ Art. 185 (3)‑West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance (VI of 1968), ‑ Ss. 2 (i) & 18 "Workman"‑Definition‑Shift Engineer‑Leave to appeal granted to determine whether, Shift Engineer was a "workman" as defined in Ordinance, 1968.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑-----
‑‑ S. 2 (i) ‑Employee in commercial establishment‑"Workman" Definition‑Interpretation ‑ Whether an employee is a workman within meaning of definition‑Test to determine‑Casual or occa sional work involving physical exertion, does not determine nature of duties of an employee as a whole.
The definition of "employer" in the Ordinance furnishes negative tests for determining the question whether an employee is a workman within the meaning of the Ordinance or not.
Under the Ordinance the employees in an Industrial or Commercial establishment may be broadly divided into the following two classes :‑
(i) those who are workmen within the meaning of the term "workmen" as defined in section 2 (i) of the Ordinance ;
(ii) those who are not such workmen, as for instance, a manager of a factory or a person responsible to the owner for the supervision and control of such establishment or in any industrial establishment under the control of any Government department, the authority appointed by such Government in this behalf.
Having regard to the definition of tile terms "employer" and "work man", it appears clear that those employees, who are not workmen within the meaning of the Ordinance, may be sub‑divided further into the following two classes:
(i) those who are officers, that is to say, who have got directional and controlling power ; and
(ii),those who may not possess any such power yet not be workmen because the nature of duties required to be performed by them does not involve manual or clerical labour.
A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of "workman". The question whether an employee is a supervisor or is exercise directional and controlling power poses merely a negative test of a workman which cannot be conclusive ; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of "employer" then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of "workman", namely, skilled or unskilled, manual or clerical labour" need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term "work man" without having to resort to the exceptions.
The test for determining the question whether an employee is a work man within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial opinion seems to be that it is the nature of the work done b: the employee that would be the essential and fundamental consideration for determining the question and not his designa tion which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employ ment has been held not to being him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted.
In the present case according to the service contract entered into between the parties employee was employed as a Shift Engineer. Nature of duties according to his own admission in his evidence included maintenance and rectification of Air‑conditioning plant, Boilers, Laundry equipment, and Kitchen Equipment as well as repairs of the electrical or mechanical faults. He further admitted that there was one helper, one electrician and one boiler engineer working under his control in each shift.
Held, there can, therefore be no doubt that the main and substantial part of his duties were those of a skilled engineer, to be performed by application expert technical knowledge of the working of sophisticated machinery. Such work can hardly be a pled manual labour. Such casual or occasional work involving physical exertion, does not determine the nature of the duties of an employee as a whole. Mental toil would not fall within the expression "manual labour". So far as some paper work to be done by the employee in preparing reports etc., is concerned, it is sufficient to state that such minor part of the duties, on the same principle will be immaterial and cannot convert the nature of his work to be clerical.
The real test is as to what constitutes the primary duties assigned to the employee in the course of his duties, which in the present case did not involve physical exertion but intellectual capabilities of the employee as a qualified engineer.
Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another P L D 1975 Kar. 342 ; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R 304 ; Chairman, Brooke Bond (Pakistan): Limited v. ‑ General Secretary, Union Kar kunane Brooke Bond P L _D 1969 Lah. 717 ; The Workers of,Bata Shoes Co. v. Bata Shoes Co. Ltd. arid another 1971 P L C 1. ; Crushing (Pakistan) ‑Ltd. Workers' Union. Lahore v. Messrs Crushing (Pakistan) Ltd. 1962 P Lt 1275 ; Cook v. The North Metropolitan Tramways Company (1887) 18 Q B D 683 ; Morgan v. London General Omnibus Co. 13 Q B D 832 ; Hunt v. Great Northern Railway Company (1891) 1 Q B D 601 ; Morgan v. London General Omnibus Co. 18 Q B D 683 and Bound v. Lawrance (1892) 1 Q B D 226 quoted.
Wasim Sajjad, Advocate Supreme Court for Appellants.
Abid Hassan Minto, Advocate Supreme Court for Respondents.
Date of hearing ; 5th December, 1984.
Leave was granted in this case to determine) whether having regard to the nature of duties of the respondent, he was AA "workman" within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
2. The facts forming the background in which this question has arisen are that respondent Bashir A. Malik was appointed as Shift Engineer at Hotel Intercontinental, Lahore, on the‑terms and conditions incorporated in an agreement executed between the parties on 12th September, 1957. He was subsequently charged with having committed misconduct on being found asleep on 18th August, 1970, at about 20 hours, while on duty in the Emergency, Generator Room. His explanation having been found unsatis factory and he having been found guilty in a domestic enquiry, he was dis missed from, service on 31st, August, 1970.
3. The respondent claimed to be a workman' and filed an application under Standing Order 18,of the West Pakistan Industrial acid Commercial (Standing Orders) Ordinance, 1968, (hereinafter. referred to as the Ordi nance') before the Punjab Labour Court challenging the legality of the order of his dismissal from service. This application was dismissed as not main tainable as the Punjab Labour Court found that the respondent was not a workman' within the meaning of section 2 (i) of the Ordinance, vide order, dated 6th March, 1972.
4. The respondent being aggrieved challenged the order of the Labour Court before the Lahore High Court at Lahore in a writ petition, which 'was accepted by a learned Single Judge, who held that as the respondent was required by the nature of his duties "to do engineering work with his hands which does require physical as well as mental toil", he was a workman', within the definition of the term in the Ordinance, vide judg ment, dated 19th August, 1972. The appellants then filed a Letters Patent Appeal and raised mainly two grounds to challenge the legality of the judgment of the learned Single Judge, namely, that the Labour Court Was right in holding that the respondent was not, a workman' within the meaning of section 2 (i) of the Ordinance and that the learned Judge in the exercise of extraordinary jurisdiction was not competent to take into con sideration additional evidence, in the form of documents filed with the writ petition and determine the case thereon. The learned Judges of the Division Bench which heard the appeal, with reference to the evidence recorded by the Labour Court held that the respondent as a Shift Engineer had to perform "manual duty himself on emergency occasions" and, there fore, the Labour Court fell into an error in not holding him as a workman. The second contention was repelled on the ground that the authenticity of the documents produced before the learned Single Judge not having been challenged indeed expressly admitted by the appellants, the Court was justified to place reliance on them. Thus, the Letters Patent Appeal failed and was dismissed in limine by the Division Bench by its order dated, 22nd January, 1973.
5. In support of the appeal Mr. Wasim Sajjad, learned counsel for the appellant, has repeated the same two‑fold contention before us. Before, however, taking up the consideration of his arguments, it will be of advant age to refer to the legal provisions that bear upon the questions raised in this case. By virtue of section 3 of the Ordinance conditions of the employment of workmen, inter alia, other matters, are regulated in accordance with the Standing Orders which are contained in the Schedule attached to the Ordinance. Standing Order No. 18 (which has since been repealed in 1972 but was in force at the time in this case) laid down the grievance procedure for the individual workman to seek redress by invoking the jurisdiction of the Labour Court and it was under this Standing Order that the respondent filed his application before the Labour Court challenging the order of his dismissal from service. The term 'workman' was defined in section 2(i) at the relevant time as under :‑
"workman means any person employed in any industrial and com mercial establishment to do any skilled or unskilled manual or clerical labour for hire or reward."
6. It is not disputed that the respondent in this case was employed in a commercial establishment and was a skilled worker employed as a Shift Engineer. It is also nobody's case that he was required to do clerical work. The crucial question, therefore, was whether he was employed to do skilled manual labour within the meaning of the definition of 'work man' as set out above. The Punjab Labour Court determined this question by applying the test as to what was the nature of the duties performed by the respondent.
It was in the evidence produced before the Court that the duties to be performed by the said respondent included maintenance and rectifica tion of the Air‑conditioning plaint, Boilers, Laundry equipment, kitchen equipment and to correct any electrical or mechanical defects occurring therein. The appellant in his evidence had stated that the said respondent had workmen under him through whom be used to get the work done in the course of his duty, but if any emergency arose when the workmen were unable to do any particular job on account of lack of technical knowledge the said respondent as Shift Engineer was required to do the job himself. In the light of the evidence on record the Punjab Labour Court in its order recorded its findings in the following manner :‑
"Since he supervises the work of 16 to 20 workmen in the morning shift and about 4 workmen in the evening shift and has to remove troubles only occasionally, he cannot be said to be a workman but rather his duty is to supervise the work of workmen."
The learned Single Judge on the basis of the evidence already on record and additional documentary evidence brought before the High Court came to the conclusion that "a large number of engineering chores have to be done by a Shift Engineer with his own hands." He observed that the sophis ticated machines having automatic electric control such as were under the charge of the said respondent, require personal attention and operation by a qualified engineer and cannot be left to mete unqualified workmen. Having reached this conclusion about the nature of duties performed by the said respondent, the learned Judge disagreed with the test applied by Labour Court, namely. whether the respondent primarily performed super visory duties. According to the learned Judge there was no warrant to apply this test in view of the definition of 'workman' in the Ordinance, although in some other pieces of legislation such a consideration may be relevant because in the definition clauses contained therein, persons employed in managerial or administrative capacity have been expressly excluded from the ambit of the definition of 'workman'. An example of this could be found in the Industrial Relations Ordinance, 1969. Referring to the meaning of the words 'manual' and 'labour' in the English dictionary the learned Judge expounded the meaning of the expression manual labour' as under :‑
"Manual labour, therefore, would mean something done with the hands which would include physical labour also but as labour also includes mental toil, any work done with the hands which requires mental toil also would not be outside the scope of the expression 'manual labour'. In the present case besides clerical work that he has to do in the shape of the preparation of detailed report of the duties performed by him during his shift, the petitioner had to do engineering work with his hands which does require physical as well as mental toil."
7. Finally the learned Judges of the Division Bench, referring to the evidence showing that in an emergency the said respondent was required to do the work with his own hands, if the workmen under him were unable to do a particular job, affirmed the finding of the learned Single Judge that the respondent had to perform manual duties himself.
8. The definition clause contained in section 2 (i) of the Ordinance, which requires interpretation, uses the expression "any skilled or unskilled manual or clerical labour". As already indicated the word 'labour', was substituted with the word "work" by Act XXIII of 1973. Thus, the scope of the definition was widened subsequently. Under the Ordinance the employees in an Industrial or Commercial establishment may be broadly divided into the following two classes ;‑‑
(i) those who are workmen within the meaning of the term "workman" as difined in section 2 (i) of the Ordinance ;
(ii) those who are not such workmen, as for instance, a manager of a factory or a person responsible to the owner for the supervision and control of such establishment in any industrial establishment under the control of any Government department, the authority appointed by such Government in this behalf."
The Ordinance defines the term "employer" in section 2 (c) as under :‑
" Employer' means the owner of an industrial or commercial 'establish ment to which this Ordinance for the time being applies, and includes‑
(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934) as manager of the factory ;
(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appoint ed by such Government in this behalf, or where no such authority is so appointed, the head of the department ;
(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment ;"
Having regard to the aforesaid definition of the terms employer" and "workman", it appears clear that those employees, who are not workmen within the meaning of the Ordinance, may be sub‑divided further into the following two classes ;‑
(i) those who are officers, that is to say, who have got directional an controlling power : and
(ii) those who may not possess any such ‑ power yet not be workmen because the nature of duties required to be performed by them doe not involve manual or clerical labour.
A careful analysis of the relevant provisions of the Ordinance shows, there fore, that employees not doing manual or clerical work would not fall within definition of "workman". The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive ; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of "employer" then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of "workman", namely, "skilled or unskilled, manual or clerical labour" need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intend ed to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term "workman" without having to resort to the exceptions.
9. There seems to be no precedent of this Court nor was any cited by the learned counsel, interpretting section 2 (i) of the Ordinance, except, however. a decision of the Sind High Court Dot Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (P L D 1975 Kar. 342). In this case the employee was the Chief Accountant in the management of the cotton mill and claimed to be a workman within the meaning of the aforesaid provision of law. The order of the termination of his service was set aside by the Labour Court which held that he was a workman. When the matter went before the High Court in constitutional jurisdiction the learned Judge examined the question whether the duties of the Chief Accountant were clerical in nature so as to bring him within the ambit of the definition of "workman". The learned fudge held that the criterion in this behalf was the nature of the work that an employee bas to do, which is crucial for determination of his status. The learned Judge then reached his conclusion that the employee was a workman on tile ground that he did not fall within the category of "employer". As discussed above this was not the conclusive test. This case came up before this Court and the view taken by the learned Judge in the High Court was upheld. It was held on examination of the chart of duties of the employee, that be was a workman within the meaning of the relevant law. See Dost Muhammad Cotton Mills Limited v. Muhammad Abdul Ghani and another (1979 SCMR 304). Certain decisions of this Court and the High Court were, how ever, cited on the interpretation of the term "workman" as defined in other statutes. These decisions are on the interpretation of the term "workman" as defined in the Industrial Disputes Act, 1947 and Industrial Disputes Ordinance of 1959. The relevant part of the definition of "work man" in the Ordinance of 1959 reads as under :‑
" Workman' means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes
In the case of Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Brooke Bond (PLD 1969 Lah. 717), the finding by the Industrial Court to the effect that the salesmen working in the Company were work. men within the meaning of the Ordinance was challenged, Muhammad Akram, J. (as he then was) made the following observations regarding the tests to be applied to determine the question whether the employee was a workman:--
"According to the definition a workman' is employed in an industry 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. But 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 the duties performed by the employees 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 inci dentally 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."
Having found that the clerical work involved in the discharge of his res ponsibilities in preparing the cash memos., daily statements and weekly returns formed but a small part of his duties, the Court held that the sales men serving in the company were not workmen within the meaning of section 2(m) of the said Ordinance. On the same principle this Court in The Workers of Bata Shoes Co. v . Bata Shoes Co. Limited and another (1970 P L C 1), held a fereman whose duties mainly consisted of supervision and manage ment in a factory not to be a "workman" within the meaning of Industrial Disputes Act, 1947. In this case the decision in Crushing (Pakistan) Ltd. Workers' Union, Lahore v. Messrs Crushing (Pakistan) Limited (1962 P L C 1275) was approved and it was observed : ‑
"The mere fact that he had to do something by his own hands by way of checking or testing work done by other workmen did not make his mental work within the meaning of this clause."
10. In an old English Statute known as Employers and Workmen Act, 1875, the expression "workman" was defined in section 10 as under:‑
"The expression workman' does not include a domestic or menial servant, but save as aforesaid means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicrafts man miner, or otherwise engaged in manual labour, whether under the age of twenty‑one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour."
It will be noticed that the words "manual labour" have been used in this definition as in the provision under consideration in the present case. This expression has been construed in some decisions from the English jurisdiction which may with advantage be referred to. In Cook v. The North Metropolitan Tramways Company ((1887 18 Q D B 683), the question was whether a driver of a tramcar was a workman within the meaning of the Act of 1875. A. L. Smith, J, while holding that the driver was not a workman observed:‑
"The expression used, it should be noted, is not manual work, but manual labour, for many occupations involve the former but not the latter, such as telegraph clerks, and all persons engaged in writing. I cannot see the distinction between driving and other occupations which involve no manual labour though they do involve manual work. Had the legislature intended to include coachmen they would have included them among the specific in stances: that not having been done, I think that "otherwise engaged" can only include persons engaged in manual labour ejusdem generis with that specially mentioned. I assent to the opinion of the Master of Rolls in Morgan v. London General Omnibus Co. 13 Q B D 832 that we must look at what was the real substantial business of the plaintiff, and I think that we cannot hold this man entitled to recover without practically differing from the judgment of the Court of Appeal in that case."
In Hunt v. Great Northern Railway Company ((1891) 1 Q B D 601), the case related to a railway guard of the goods train. His main duty was to guard and conduct the train and to marshal the trucks; but it was also part of his duty at times to assist in coupling and uncoupling the trucks and in unloading them. The Court observed:‑
"Now, the duty of a goods guard is much the same as that of a passenger guard, namely, to see that the train is properly put together, and to carefully conduct it. It is a duty requiring care, skill, and experience, and the labour which it involves is mental rather than physical. No doubt it would occasionally be his duty, where necessary, to assist the porters in the transhipment of goods to or from his train; but that is not enough to make him a person engaged in manual labour. His primary duty was to use his intelligence, not his hands. Neither in Morgan v. London General Omnibus Co. 18 Q B D 683 where a similar decision was come to with regard to the driver of a tram‑car, did the Court lose sight of the fact that the nature of the plaintiff's employment might involve to some extent the doing of manual work; but they were of opinion that, having regard to the nature of his primary duty, he was not a person engaged in manual labour."
Lastly in Bound v. Lawrence ((1892) 1 Q B D 226), their Lordships laid down the test to be applied in determining the question whether an employee was a workman within the meaning of the Act as follows :‑
"It is to be observed that it is difficult to imagine any work done by man so purely intellectual as to require no kind. of work with the hands; and the converse is equally true, the: there can hardly be work with the hands that requires no intellectual effort. If, then, the words 'manual labour' are to have the full significance which could be put on them, they would be extended to every kind of employment. That cannot be the true meaning of the statute, but some more confined interpretation must be arrived at. I agree that this must be done by looking to the nature of the substantial employment, and riot to matters that are incidental and accessory. The determination of what is substantial and what accessory may be a question of difficulty; but, in my view of this case, the appellant was not engaged in manual labour. In his occupation the knowledge and skill required in selling the goods to customers is more important than the manual work that he does, and the latter is an incident of his employment."
11. The test for determining the question whether an employee is workman within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted.
12. Applying the tests enumerated above to the facts of the present case it will be observed that according to the service contract entered into between the parties respondent No. 1 was employed as a Shift Engineer. The nature of duties according to his own admission in his evidence by respondent No. 1 included maintenance and rectification of air‑conditioning plant, Boilers, Laundry equipment, and Kitchen Equipment as well as repairs of the electrical or mechanical faults. He further admitted that there was one helper, one electrician and one boiler engineer working under his control in each shift. These can, therefore, be no doubt that the main and substantial part of his duties were those of a skilled engineer, to be performed by application of his expert technical knowledge of the working of sophisticated machinery. Such work can hardly be called manual labour. The learned Single Judge, as pointed out above, reversed the finding of the Labour Court only on the basis that the work ordinarily required to be done by respondent No. 1 also included working with his own hands to an emergency. As discussed above such casual or occasional work involving physical exertion, does not determine the nature of the, duties of an employee as a whole. We are unable to agree with the learned Single Judge that mental toil would fall within the expression "manual F labour". So far as some paper work to be done by the respondent in preparing reports etc. is concerned, it is sufficient to state that such minor part of the duties, on the same principle will be immaterial and cannot convert the nature of his work to be clerical, as held in the case of Chairman Brooke Bond Pakistan, Limited.
13. Mr. Abid Hassan Minto, learned counsel appearing for respon dent No. 1, referred us to the amendment effected in section 2(i) of the Ordinance whereby the word "labour" was substituted with the word "work" and submitted that this piece of legislation is declaratory in nature .and would, therefore, have retrospective effect. In other words his sub mission was that an employee whose duty involved manual work would also be deemed to be a workman within the meaning of the definition and contended that respondent No. 1 was, therefore, a workman. However, as discussed above, the real test is as to what constitutes the primary duties assigned to the employee in the course of his duties, which in the present case did not involve physical exertion but intellectual capabilities of the respondent as a qualified engineer. He also contended that the definition of the term "workman" in the Ordinance and the Industrial Relations Ordinance, 1969, being materially different, the mere fact that an employee was entrusted with supervisory work will not ipso facto exclude him from the ambit of the definition in the Ordinance. This may well be so, but we have not disqualified the respondent on this basis but on the principle that the, nature of his duties did not involve manual labour. It may nevertheless be pointed out, as already stated, that the definition of "employer" in the Ordinance furnishes negative tests for determining the question whether an employee is a workman within the meaning of the Ordinance or not.
14. In view of what is stated above it is unnecessary to go into the other contention of the learned counsel for the appellant that the High Court was not, entitled to record additional evidence produced for the first time in the writ petition before the High Court. The appellant succeeds in the present appeal even if the additional evidence is taken into consideration.
15. For the foregoing reasons this appeal is allowed and the writ issued by the High Court is hereby recalled, with the result that the order passed by the Punjab Labour Court holding that respondent. No. 1 is not a workman and was, therefore, not competent to invoke standing order No. 18 shall stand restored. In the circumstances of this case each party is left to bear his own costs.
M. B. A. Appeal allowed.
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