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(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--

---S. 2(xxviii)--"Workman"--Employee working as an Accountant doing work of supervisory nature and drawing monthly salary of Rs.2,700, held, was not a "workman"

Messrs Opeal Laboratories Ltd. v. Muhammad Moinul Islam 1983 P L C 508 and Hotel Intercontinental v. 8ashir A. Malik P L D 1986 S C 103 rel.

(b) Industrial Relations Ordinance (XXIII of 1969)---

---S.25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). Ss. 2(xxviii) & 15---Grievance petition--Termination of services--Employee working as Accountant in head office which had distinct entity from factory--Work of employee that of supervisory in nature and not of workman--Employee not being a workman was not entitled to invoke provisions of S.25-A, Industrial Relations Ordinance--Grievance petition dismissed.

Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal P L D 1978 Kar. 649 rel.

(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

---S. 2(xxviii)--'Supervisor'--'Workman'--Supervisor included a workman--Distinction between a 'supervisor' and a person employed in a 'supervisory capacity'--Supervisor is a workman immediately above lowest level of workers in an establishment or industry who has supervisory duties but has no power to engage or remove workers or take any other disciplinary action against workers--Person engaged in a supervisory capacity is a person who is head and incharge of his section.

Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal PLD 1978 Kar. 649 rel.

(d) Industrial Relations Ordinance (XXIII of 1969)---

---S. 2--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2--'Establishment'--Mere fact that a company, individual or association of individuals runs or sets up separate establishment at different places would not authorise treating all such establishments, to be one establishment either for purposes of Industrial Relations Ordinance or Standing Orders Ordinance, even if there was a provision for transfer of staff from one establishment to another.

A . R . Mirza far Petitioner.

M.L. Shahanifor Respondent No.l.

Date of hearing: 10th February, 1986.

JUDGMENT

HAIDER ALI PIRZADA, J.-

-This judgment would dispose of the Constitutional Petitions Nos. D-37 and 406 of 1984 as they arise out of the same facts and the common question of law and facts are raised in these petitions.

CONSTITUTIONAL PETITION NO. D-37 of 1984

The petitioner is a private limited company incorporated under the Companies Act, 1913 and having its head office at 313, Qamar House, M.A. Jinnah Road, Karachi, and the respondent No. 1 was employed with the petitioner as Accountant at the monthly salary of Rs.2,700. The services of the respondent No. I were terminated in the month of December, 1981 and he was advised to collect his dues. The respondent No. 1 served with a grievance notice under section 25-A of the I. R. O., 1969 on the petitioner which was duly replied by the petitioner on 14-12-1981. The respondent No. 1 was not satisfied with the said reply and he filed an application under section 25-A before respondent No. 3 praying therein to hold that the termination order, dated 9-12-1981 was illegal and also ordering for re-instatement with full back benefits. The petitioner contested the application. The respondent No.l in support of the application examined himself. On the basis of the evidence on the record, the respondent No.3 dismissed the application vide order, dated 10-2-1983.

The respondent No. 1 filed an appeal before the respondent No.2 against the above order, dated 10-2-1983. The respondent No.2 after hearing the arguments of the learned counsel for the parties allowed the appeal vide order, dated 3-12-1983 and directed the petitioner to re-instate the respondent No.1 and also awarded 40% of the back benefits. The petitioners being aggrieved against the order has filed this constitutional petition.

The respondent No.l filed Constitutional Petition D-406 of 1984 and prayed therein that he may be allowed full back benefits instead of 40 as ordered by the respondent No.2.

Mr. A. R. Mirza the learned counsel for the petitioner has raised the following contentions.

(1) The respondent No. 1 was not a workman.

(2) The respondent No. 1 could only approach the Authority under the West Pakistan Shop and Establishment Ordinance, 1969.

(3) The learned office establishment and factory are two different entities.

On the other hand Mr. M.L. Shahani, the learned counsel for the respondent No. 1 has submitted that the respondent No. 1 was a workman and he was not working in the supervisory and managerial capacity. The provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are attracted as more than 20 workmen are employed by the petitioner. The order of the respondent No. 1 was in accordance with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the respondent No.l is entitled to the full back benefits.

In order to appreciate the contentions of the parties it is necessary to reproduce section 2(viii) and (xxviii) and provision of Industrial Relations Ordinance, 1969 (hereinafter called the said Ordinance). Section 2(c)(iii) of Sind Shop and Establishment Ordinance and section 1(4)(a) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 which reads as under:-

"EMPLOYER

" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employees workman in the establishment under a contract of employment and includes:-

(a) an heir, successor or assign the case may be, of such person or body as aforesaid,

(b) any person responsible for the management, supervision and control of the establishment;

(c) in relation to an establishment run by or under the authority of any department of the (Federal Government) or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;

(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority.

Special provision.-- For the purpose of distinction from the category of "worker or workman" officers and employees of a department or the (Federal Government) or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial directional supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers.

(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof.

"(xxviii)" "worker" and "workman" means any person not falling within the definition of employer who is employed (including employment (as a supervisor or) as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has bin dismissed, discharged, retrenchment, lay-off, or removal has led to that dispute (but does not include any person)--

(a) who is employed mainly in a managerial or administrative capacity, or

(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature.

S. 2(e)(iii) of said Industrial and Commercial Employment (Standing Orders) Ordinance, 1968:

a railway as defined in clause (4) of section 3 of the Railway Act, 1890 (IX of 1890); or

In our view as the respondent No.l claims violation of Standing Orders 15 in order to maintain an application under section 25-A of the said Ordinance, he must be a workman under the definition in the Standing Orders and the definition of workman in S. 2 (xxxviii) of the A said Ordinance is applicable to him. This view has been taken by a Division Bench of this Court in the case of Messrs Opeal Laboratories Ltd. v. Muhammad Moinul Islam 1983 P L C 508. We are also to subscribe to this view. In Hotel Intercontinental v. Bashir A. Malik PLD 1986 S C 103, the Hon'ble Supreme Court laid down the following test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation.

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 in incidental to the main work or a substantial part of it, so that, the fact a person employed in a 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.

We have to examine the nature of the work done by the employee in the light of the above dictum laid down by the Hon'ble Supreme Court.

The respondent No.l served the petitioner with grievance notice. The petitioner sent a reply and stated therein that the respondent No. 1 was not a worker. Even in a written statement a clear objection was taken to the effect that the respondent No. 1 was neither a worker nor a workman as defined in section 2(xxviii) of the said Ordinance on the ground that the nature of his employment being administrative and supervisory and his monthly employment exceeded Rs.800, yet no evidence was produced by the respondent No.l on the question. He has himself stated in his affidavit in evidence and also come forward in the witness box to state his duties and the nature of the work entrusted to him. On behalf of the petitioner evidence was brought on the record in proof the fact that he was not covered by the definition of workman.

In the instant case, the respondent No.l stated in his application under section 25-A of the said Ordinance that he was employed as accountant. The petitioner by taking exception of the respondent No.l gesture for late working and non-payment of overtime allowance, terminated the vices vide letter dated 10-12-1981. The petitioner filed written statement and stated therein that the respondent No.l though designated as an Accountant but he was performing the duties of an executive and many subordinate staff was working under him. The respondent No.l, was supervising the work of four Accounts cleric and one peon working under him and by virtue of authority vested in him as an executive of the petitioner and the pay drawn by him, the respondent was not a workman. The respondent No.l filed an affidavit- in-evidence and stated therein that he was performing the following duties.

(A) To check the bills received from the suppliers.

(B) To make entry of the bills in purchase and party registers/ ledgers.

(C) To check the payment vouchers with daily statement.

(D) To prepare the adjustment vouchers.

(E) To correspond with the suppliers.

The respondent No.l was cross-examined by the counsel of the petitioner and in his cross-examination admitted that two persons were working in Accounts Branch". It is advantageous to reproduce the relevant portion from his cross-examination which reads as under:-

Two persons were working in Accounts Branch viz. Book-Keeper and cashier. After checking bill received from suppliers, I used to send to the Chief Accountant for Orders with regard to payment. Daily payment vouchers with statements were to be prepared at Factory. I also used to write letters for supply of goods for company. I see cash statement book. This statement is prepared by Mr. Iqbal and I used to check it. It bears my signature. I produce the statement book as Exh.3/A. I was checking work of Iqbal but do not know about his designation. I see register of the entries of daily purchase. It is prepared and written by Qamar, Clerk of the respondent. There is my initial on many items. I use to check the bill and then put my initial as every entry. I produce the Register as Exh.3/B. I see Book of cash vouchers. These entries in this cash voucher are made by Iqbal. There is my initial above word checked by in red ink. I produce this book as Exh.3/C.

We are of the view that these powers could not be exercised by a subordinate or an accounts clerk or a workman as defined in various statutes in the field of Labour Legislature.

Mr. M.L. Shahani took us through the evidence to contend that the main work of the respondent No.l was of a clerical nature. A submission was made that the nature of the duties of the respondent No.1 as shown from the evidence on record may be seen to find out whether the concerned employee was workman. There is no dispute about the law laid down by the superior Courts in such cases. For an employee in a industry or commercial establishment is to be a workman within the definition contained in S.2(xxvii) of the I.R.O. or section 2 of Industrial and Commercial (Standing Orders) Ordinance, 1968, it is manifest that he must be employee to do skilled and unskilled work or clerical work. If the works done by an employee is not of such a nature he would not be a workman. "It is not disputed that the respondent No.l was working as accountant at the head office of the petitioner". A bare perusal of the affidavit and the cross-examination of the respondent No.l would show that the respondent No.l was performing supervisory work and book-keeper, cashier and clerks were working under him. The respondent No.l had been signing as approving accountant after checking them. It was his duty in the capacity of accountant to check the entries and to put his signatures in token of verification. The respondent No.l was also corresponding with the suppliers, which is wholly outside functions of a workman. In our view the respondent No.3 on the basis of the evidence rightly held that the applicant (respondent No.l) was doing the work of supervisory nature. C The nature of the duties performed, by the respondent No.l coupled with the monthly salary drawing by the applicant at Rs.2,700. I am satisfied that the applicant is not a workman". It is advantageous to reproduce the relevant portion from this finding of the learned appellate Tribunal which reads as under: -

The finding of the respondent No.2.

On the admitted facts of the present case, the respondent No.l was working as an accountant and was not doing any managerial or supervisory duties except that four accounts clerks and a peon were working under him in his section. He was supervising and controlling only his branch of the establishment and was not supervising or controlling the entire establishment and, therefore, he cannot be considered to be excluded from the definition of a workman within the meaning of section 2(1) of the Standing Orders Ordinance, 1968.

A bare perusal of the definition of workman would show that a "supervisor" has been expressly included as a workman, a person employed in a "supervisory capacity" has been excluded who either draws wages Rs.800 per month or performs functions mainly of al managerial nature. There is a real distinction between a "Supervisor" and a person employed in a "supervisory capacity". A supervisor is a D worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but has no power to engage or remove, take any other disciplinary action against the workers by his own authority. A person employed in a supervisory capacity on the other hand, is a person who is head and incharge of his section the establishment.

In Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal P L D 1978 Kar. 649 a Division Bench of Sind and Baluchistan High Court Karachi Bench, held that it will, therefore, follow that there is no substance in the contention that a person to come within the definition of employer, as defined in the Industrial Relations Ordinance, has to be E incharge, supervisor of or running the whole of the establishment of the employer for he may as well as in the present case, incharge of a part of the establishment. We subscribe to the same view. The respondent No.2 failed to determine the appeal filed by the respondent No.l in accordance with the provisions of S.2(i) of the Standing Orders and S.2 (xxviii) of the I.R.O. and the evidence adduced by the parties on record. The disposal of appeal on the basis of conjecture was, therefore, not legal. In the circumstances we accept the contention of the learned counsel for the petitioner and hold that the respondent No. 1 was not a workman.

Reverting to the second contention of the learned counsel for the petitioner that the head office and the factory of the petitioner are two distinct entities.

In order to appreciate the contention of the learned counsel for the parties it is advantageous to reproduce the expression establishment which is defined in the I. R.O. Ordinance which reads:

Establishment" means any office, firm, industries unit, undertaking, shop or premises in which workman are employed for the purpose of carrying on any (industry); (and except in section 22-EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments;)

In Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal P L D 1978 Kar. 649, a Division Bench interpreted the expression Establishment as under:

From the aforesaid definition it would appear that an employer may have more than one establishment, for example, offices in a commercial area, shops in business are or one or more industrial units in an industrial area and the expression "establishment" would include not whole of the establishments of an employer but each of them individually.

We are of the view that the mere fact that a company, individual or association of individuals runs or sets up separate establishment at different places would not authorise treating all such establishment to be one establishment either for the purposes of the Industrial Relation Ordinance or the Standing Orders even if there was a provision for transfer of staff from one establishment to another. The petitioner has also invited our attention to the provision of Sind Shops and Establishment Ordinance. He has also drawn our attention to the certificate issued by the competent authority in this behalf. This clearly shows that the head office is separate and distinct entity. In view of this we accept the second contention of the learned counsel for the petitioner and hold that the head office is a separate and distinct entity.

By a short order dated 10-2-1986 we accepted the petition No. Constitutional Petition D-37 of 1984 and the above are the reasons for the same.

The Petition No. D-406 of 1984 filed by the respondent No.l is dismissed as having become infructuous in view of the above order.

M.Y.H./5011/K Petition dismissed.

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