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Constitutional Petition No. 1894 of 1979, decided on
(a)
‑‑‑S.O.12(3)‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑Right given to a "workman" against termination, removal, retrenchment or dismissal from service, held, could be enforced in accordance with S.25‑A of Industrial Relations Ordinance, 1969.
Muhammad Akil v.
(b)
‑‑‑S.2(i)‑‑"Workman", meaning and scope‑‑'Workman', held, would be a person employed in industrial or commercial establishment doing any skilled or unskilled manual or clerical work for hire or reward‑--- Assistant Foreman being a technical hand himself supervises technical work of his subordinates‑‑Such kind of supervision could not be conceived without involvement of some manual labour Person supervising technical work and doing manual work with hands, by way of guiding the personnel working under him would be a "workman" as defined under S.2(i) of Ordinance VI of 1968.
Bashir A. Malik v. The
‑‑‑S.25‑A‑‑Constitution of
Imran Ahmad for Petitioner.
Makhdoom Ali Khan for Respondents.
Dates of hearing: 25th September and
‑‑By this Constitution Petition, the Petitioner Abdul Ghaffar has impugned the order of the Sind Labour Appellate Tribunal, dated 27‑9‑1979, whereby the appeal preferred from the order of the Second Sind Labour Court, Karachi dated 19‑4‑1979 by the respondent No.l was allowed and the appeal filed by the petitioner against the same order was dismissed.
The facts giving rise to this petition are these. At the relevant time the petitioner was working as Assistant Foreman in the Karachi Shipyard. On 30‑12‑1975 he was charge‑sheeted on the allegations that he had got certain tools issued for carrying out some repair work which, however, did not require the use of the said tools. The petitioner had, instead, used those tools in his private capacity, as with the help of the said tools, he alongwith his collaborators had got two boiler furnaces renovated, beside doing some other work on the Ship A1‑Shams. Pursuant to the charge‑sheet a domestic enquiry was held which ultimately led to the dismissal of the petitioner from the service of the Karachi Shipyard. Against his dismissal the petitioner served a grievance notice on his employers but got no relief. Therefore, on 24‑3‑1976 he filed an application a/s 25‑A Industrial Relations Ordinance, 1969 (hereinafter referred to as 1969 Ordinance) in the
We have heard the learned counsel for the parties at some length. The only point agitated at the bar was whether at the relevant time the petitioner was workman for the purpose of seeking the desired relief.
It was submitted by the learned counsel for the petitioner that although the petitioner was designated as Assistant Foreman, he had no power of hire and fire via‑a‑via the personal subordinate to him and further that he was doing work with his own hands and as such he fell within the definition of "Workman" as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter referred to as 1968 Ordinance). Accordingly, the learned counsel argued, he was entitled to seek remedy at the forum available to him under S.25‑A of 1969 Ordinance. On the other hand the argument of the learned counsel for the respondent was that being an Assistant Foreman the petitioner was assigned supervisory duties and had various groups of employees working under him and, therefore, he could not be held as "Workman". Both the learned counsel reinforced their arguments by placing reliance on some precedent cases.
It is an admitted position that the petitioner was working as Assistant Foreman when he was charge‑sheeted on the allegations of misuse of some tools which he had got issued on the pretext of carrying out certain repairs. The question that arises for our consideration is whether Assistant Foreman is a workman for the purpose of invoking the jurisdiction of
"Applicant has stated in his cross‑examination that he used to work with his hands. This has not been challenged by the learned counsel for the respondents. There is nothing on the record to show that the applicant had any powers to hire and fire or he could take any disciplinary action against any co‑worker. It was under the similar circumstances that it was held in the case reported in 1973 P L C 358 that the supervisor merely performing supevisory duties enjoying no power to engage to remove or take disciplinary action against any worker by his own authority, would fall within the definition of a workman. I, therefore, do not find any difficulty in holding that the applicant falls within the definition of workman."
As against the conclusions reached by the learned
"It is an admitted position that Abdul Ghaffar, immediately before his dismissal from service, was drawing emoluments amounting to Rs.1,108 per month. Furthermore, he was holding the post of Assistant Foreman. This post, as admitted by Abdul Ghaffar himself in his evidence, was higher than the post of chargeman, who in fact was under him. He has further admitted that a chargeman was supervisor of works and the Assistant Chargeman, Boiler Makers, Khalasies, Welders, Gas cutters, Supervisors and other categories of Workers work under him. It will thus be seen that a large category of workmen work directly under the control of the chargeman who is himself under the control of Assistant Foreman. In view of his superior status and the different categories of Workmen working under him, it would ordinarily be quite unnecessary for the Assistant Foreman to work with his own hands. No doubt, on specific occasion, where the nature of work is found to be extremely complicated, the Assistant Foreman may be required to show the workmen under him how a particular job is to be done, or even work with his hands, but that would not, in my opinion, be the normal nature of his duties, which are basically supervisory in nature. Looking to the emoluments of Abdul Ghaffar, the different categories of workmen working under him and the nature of his main duties. I am of the opinion that he cannot be considered to be a 'Workman' for the purpose of the Standing Orders as his main functions and duties cannot be considered to be the doing of manual or clerical work, whether skilled or unskilled."
For appreciating the findings arrived at by the two Courts below it may be convenient to reproduce the definition of "Workman". This word has been defined differently in the two Ordinances: 1969 Ordinance and 1968 Ordinance. The question is which of the two definitions is to be followed. It would be seen that the right of challenge his dismissal from service is provided to the petitioner, by clause (3) of Standing Order 12 of the 1968 Ordinance which reads as under:
"(3) The services of workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services, or removal retrenchment, discharge or dismissal he may take action in accordance with the provisions of Section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
No doubt the right conferred by the above provision of law is to be enforced in accordance with section 25‑A of the 1969 Ordinance. But that right is to be exercised by "Workman" occurring in them 1968 Ordinance, which has given him such right. This view finds, support from: Muhammad Akil v. Sind Labour Appellate Tribunal PLD 1978 Kar. 649 I.R. Saleh v. International Laboratories Ltd. PLD 1975 Kar. 279 and Medical Education Uplift Association v.
The definition of workman as given in 1968 Ordinance is as follows:‑
"2(i) 'Workman' means any person employed in any Industrial or Commercial establishment to do any skilled or unskilled manual or clerical (work) for hire or reward."
It would be noticed that the requirements of the above definition of "workman" are: (1) That he should be employed in industrial or commercial establishment (2) that he should be doing any skilled or unskilled manual or clerical work and (3) that he should be doing that work for hire or reward. There is no dispute as the fulfilment of requirements Nos.1 and 3. The learned counsel for the parties are however at variance, so far requirement No.2 is concerned. The learned Labour Appellate Tribunal whose order has been challenged in this petition is of the view that the main duties assigned to the petitioner are supervisory in nature and, therefore, if on certain occasion while giving guidance to his subordinate, he is required to do work with hands, he cannot for that reason we held as workman falling within the above definition.
In reply to the above argument our attention has been invited to the authority reported as Bashir A. Malik v. The
"The definition in this section does not contain any reference to supervisory capacity. Where‑ever the Legislature wanted to exclude people in supervisory capacity from the pale of workman it specifically said so as it has done in the case of West Pakistan Trade Unions Ordinance V of 1968 where persons employed in managerial or administrative capacity have been excluded from the definition. In the Industrial Relations Ordinance XXIII of 1969" any person responsible for the management, supervision and control of the establishment' has been excluded from the definition of a 'worker' and 'workman'. The mere fact, therefore, that a person who is otherwise covered by the definition of 'Workman' as given in Ordinance VI of 1968, also performs Supervisory function would not be operative to exclude him from the definition of "Workman".
We share the view expressed in the above reported case inasmuch as that in order to Judge if the petitioner is a "Workman" his superiority of status or his having supervisory powers in relation to his subordinate staff are not the material considerations. According to the said definition whether one is workman depends upon whether one does skilled or unskilled, manual or clerical work. Looking to the nature of the petitioner's work we have no doubt in our mind that it was of 'skilled' nature. It is also clear that the nature of his work was not clerical. In order to ascertain if the work the petitioner was doing was manual in nature, we may once again advert to the findings of the two lower Courts referred to above. The learned Labour Court after taking note of the petitioner's admission that "he used to work with hands", has observed that the said admission has not been challenged by the learned counsel for the respondents Even according to the learned Appellate Tribunal, though with a large number of personnel working under his supervision, the petitioner was not in the need of doing the manual labour himself yet on some occasions he was required to work with hands just to give guidance to his subordinates. We are also of the view that: Assistant Foreman being a technical hand himself supervises the technical work of his subordinates. Such kind of supervision cannot be conceived without involvement of some manual labour. Thus, the work assigned to Assistant Foreman involved both skilled and manual labour.
In the case of Rehmat Ali v. The Security Papers Ltd. and another P L D 1982 Kar. 913, Ajmal Mian, J. who wrote the judgment has, after minutely examining the meaning and connotation of the words 'skilled', unskilled', 'manual' and 'work' used in the definition of "workman" in the 1968 Ordinance, held:
"It may be noticed that the word 'unskilled' connotes that the person does not have any special or expert knowledge in a particular line, whereas 'skilled' conveys converse meaning, namely, that the persons concerned possesses of reasonably good knowledge and experience in the line in which he is working ........................................................................It may be notified that the word 'manual' or 'manual labour' involves use of hands as compared to the use of 'skilled' or intellect. If a person uses his hands as well as skill/intellect in that event the question whether the person belongs to 'manual labour' or to 'skilled labour' or 'skilled person' has to be determined with reference to the quantum of use of hands and of skill. If while performing his duties/functions he predominantly uses his hands in that event he would fall within the category of manual labour but if he predominantly uses his skill he would not fall within the category of manual labour but would be covered with the term 'skilled labour/ skilled person " As for the implication of the word 'work' used in the definition of 'workman' the learned Single Judge has in the same judgment held:
"The above word has also wide connotation inasmuch as it includes all kinds of works including manual as well as skilled work, other than recreation of amusement".
We are in agreement with the views expressed in the above authority as to connotation of the words: skilled, manual and work. In view of the meaning given to these words in the above reported case, we are inclined to hold that as Assistant Foreman the petitioner was certainly engaged in a 'work' which was 'skilled' as well as 'manual' in nature. The supervision of the technical personnel working under him wad not of the type which only required him to just watch that the subordinate staff were on the job and were actually doing the work. For that kind of supervision it is unnecessary to employ a technical hand like Assistant Foreman. His job was to supervise the technical work of subordinates, for which both skill and manual labour were necessary. Viewing the petitioner's work from that angle we have come to irresistible conclusion that in the capacity of Assistant Foreman the petitioner had to do both "skilled work" and "manual labour". Accordingly, he fell within the definition of "workmen" as given in the 1968 Ordinance.
The case of Mumtaz Hassan Khan v. Sind Labour Appellate Tribunal and 2 others 1984 P L C 1353 relied upon by the learned counsel for the respondents is of no help to him as the decision taken in that case is not applicable in the instant case. In the reported case, the petitioner was marketing supervisor' which designation was subsequently changed to 'marketing representative'. The D.B. of this Court after testing the nature of duties the petitioner was required to perform in the above capacity upheld the conclusion reached by the Appellate Tribunal that the petitioner was not a 'workman'. The observations made by their lordships are to the following effect:
"The view taken by the learned Labour Appellate Tribunal that the main function of the petitioner was to promote the sales of the products of the respondent No.3 company and that whatever clerical or manual duties he had to perform were incidental to the said main function, is supported by the document giving the job description of the petitioner, which document was filed by the petitioner before the labour Court and in fact reliance was placed upon the same by him."
The next case cited before us was of Messrs Opal Laboratories Ltd. v. Muhammad Moinul Islam 1983 P L C 509. This case too is not helpful to the respondents. The question involved in this case was whether "medical representative" appointed by the petitioner Company was 'workman'. The learned Judges of this Court after examining various authorities cited before them set aside the impugned order passed by the Appellate Tribunal, holding:
"It has been held in several cases referred to above that a 'salesman' or for that matter a Medical Representative is neither skilled nor unskilled worker. His job is not clerical either. No manual or clerical work is part of his main duty. If he might be doing some manual or clerical work by way of keeping account etc. it would only be of an incidental nature and would not form part of his main business as held in various decisions referred to above."
Apart from above, reliance was also placed on the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R 304. In this case, the respondent was appointed as Chief Accountant of the petitioner Company on a salary of Rs. 1,050 per month and he had no supervisory function at all. It was held by the Supreme Court:
"The Tribunal, in our view, rightly held, that the respondent was a workman and that the impugned order was an order of dismissal."
Although the facts of this case are not similar to those of the case in our hand, yet on principle it does lend support to the petitioner's case.
The upshot of above discussion is that the petitioner was a "workman" within definition of the term given in the 1968 Ordinance, as apart from doing manual work with hands by way of guiding the personnel working under him, he used to supervise their work which being of technical nature required skill (technical knowledge an experience) as well as manual labour on the part of the petitioner.
Accordingly, we allow the petition and set aside the order passed by the Appellate Tribunal with no order as to costs.
A. A. / A‑88/ K
Petition accepted.
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