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Petitioner: MS. LAMIKA ZUBERI VS Respondent: M/s. Logo Guru (Pvt.) Ltd. & 03 OTHERS
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Adnan-ul-Karim Memon Title: MS. LAMIKA ZUBERI vs M/s. Logo Guru (Pvt.) Ltd. & 03 OTHERS Case No.: C.P No. 1769 of 20 Date of Judgment:2018-12-21 Reported As: 2018 SHC 1196 Result: Petition dismissed
Judgment ADNAN-UL-KARIM MEMON, J. Through this Constitutional Petition under article 199 of the Islamic Republic of Pakistan, the Petitioner has questioned the order dated 12.05.2012, passed by the learned Sindh Labour Court No.1, Karachi (SLC), whereby her Grievance Application No.98 of 2011 was dismissed, being non maintainable and also impugned the Decision dated 21.03.2013, passed by the learned Sindh Labour Appellate Tribunal at Karachi (SLA T) in Appeal # KAR-85 of 2012, whereby the order of the learned SLC was maintained. 2. Briefly the facts necessary for disposal of instant matter are that the Respo ndent-company terminated the service of the petitioner on 1.7.2009 on the allegations of misconduct. Petitioner has submitted that she was appointed by the Respondent-Company vide letter of appointment in the year 2006 as Content Writer and she successfully completed her three months period of probation and then acquired the status of a permanent worker of the Respondent-company under the law. Petitioner has submitted that since the day of her appointment, she had been performing manual and clerical duties in the company as a content writer. Per Petitioner, the works assigned to her, were searching web sites, entering websites links in other websites, networking web sites, entering ads of clients in websites and to do other clerical work, all alone. Petitioner has submitted that the respondent-company vide letter dated 06.04.2009 called in question her work by deducting 10% pay from her salary from the month of March 2009. Petitioner has submitted that she replied vide letter dated 08.06.2009. Finally her service was dispensed with vide letter dated 23.07.2009 without calling any explanation or issuing show cause notice or holding an inquiry into the allegations. Petitioner being aggrieved by the decision of illegal termination from service notice served Grievance Notice upon the respondent-company. Thereafter the Petitioner filed grievance application before the learned SLC, which was dismissed vide order dated 12.05.2012. The Petitioner assailed the said order before the learned SLAT by filing statutory Appeal, which was also dismissed vide Decision dated 21.03.2013, hence this petition. 3. Both the parties led their evidence and learned SLC framed the following points for determination:
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i. Whether the applicant falls within the category of workman as defined under Section 2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and Section 2 (xxix) of Industrial Relations Act, 2008? ii. Whether the grievance application filed by the applicant is maintainable under the law and she is entitled to be reinstated in service with all back benefits? iii. What should the order be? 4. The learned trial Court after recording the evidence of the parties dismissed the grievance application of the petitioner on legal points without adverting to the factual points vide order dated 12.05.2012. The Petitioner challenged the said order in Appeal # KAR-85/2012, which was also dismissed by the learned SLAT by concurring, the findings of the learned SLC on the point of maintainability of her grievance application. 5. Mr. Javed Asghar Awan, Learned counsel for the Petitioner has contended that the impugned Judgments dated 12.05.2012 passed by the learned SLC and decision dated 21.03.2013 passed by the learned SLAT are full of errors based on misreading and non-read ing of evidence; that the findings of the learned courts below are arbitrary and perverse; that the averments of the petitioner made in the affidavit in evide nce were not considered in the impugned Judgments, therefore both the judgments are nullity in the eyes of law; that the both the learned courts below have failed to appreciate the material aspects of the matter; that the learned Presiding Officer of SLC as well as member of SLAT have failed to appreciate that the petitioner was permanent worker of the respondent- company , therefore the impugned Judgments are illegal and against the law, thus are liable to be set aside; that both the learned courts below have failed to appreciate the case law on the point of worker and workman and ignored this material aspect of the case; that the petitioner ought to have been treated as permanent worker of the respondent-company by the learned SLC; that the learned SLAT failed to consider the grounds of Appeals agitated by the Petitioner; that both the learned courts have failed to appreciate that the Grievance Application of the petitioner was maintainable before the learned SLC, therefore, both the Judgme nts cannot be sustained on this score alone and are thus liable to be set aside; that the learned SLC erred in dismissing the grievance application of the petitioner; that the learned SLC has failed to appreciate that the respondent-company did fall within the ambit of commercial establishment as per the definition of labour laws, therefore the learned SLC had the jurisdiction to entertain the lis between the parties; that both the Courts below gravely erred in law as well as misread the material evidence /documents, committed serious illegality , as such, the order as well as Decision impugned, warranting interference by this Court under article 199 of the Constitution. He lastly prayed for setting aside both the Judgments rendered by the learned Cour ts below . Learned counsel in support of his contention has relied upon the case of M/s United Bank Ltd v. Muhamm ad Afzal Solangi (2018 PLC 287), Wyeth Pakistan Limited v. Nasimul Hassan ( 2018 PLC 171 ) and W .Woodward (Pak) Ltd v . Sindh Labour Appellate Tribunal, Karachi (PLC 1986 34). 6. Conversely, the learned counsel for the respondents No.1 and 2 have strongly refuted the above submissions of the learned counsel for the petitioner and supported the findings of the learned SLC and learned SLAT; that there are concurrent findings recorded by the competent forum under the special law and the grounds raised in the instant petition are untenable; that both the aforesaid Judgments are passed within the parameters of law; that instant petition is frivolous, misleading as there are concurrent findings by the courts below and this Court has limited jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to dilate upon the evidences led by the parties; that the learned SLC after recording the evidences passed just, proper and fair Judgment in the case holding her termination as legal; that the learned Member of SLAT after hearing the learned counsel for the parties passed the Judgment in the matter, however, the Petitioner has now approached this Court. They prayed for dismissal of the instant petition. 7. We have heard the learned counsel for the parties and with their assistance carefu lly gone through the material placed by them and the case law cited at the bar . 8. The primordial questions in the present proceedings are as under:- i) Whether the petitioner was worker and permanent employee of the Respondent-company? ii) Whether the petitioner was legally terminated from her service and was liable to be reinstated in her service with full back benefits?
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9. In order to evaluate the above legal proposition the learned trial court, framed the issues in the Grievance Application of the petitioner and gave its findings in favour of the Respondent-company . 10. To appreciate the controversy in its proper prospective, we deem it appropriate to have a glance on the evidences brought on record by the parties. At the first instance, the relevant portion of the findings of learned SLC, in the Grievance Application No.98/2011 of the petitioner is as under:- "31. From perusal of the pleadings, evidence, documents, arguments and rulings placed by both parties it has transpired that the applicant was appointed as content writer/search engine optimizer. The applicant's duties involved data entry, searching web sites, entering websites links I other websites, networking websites, entering adds of clients in websites etc. the applicant being highly educated holding degree of M.A International Relations and M.S in I,T having intellectual character enjoying full control and command over her assignment and also dealing with the clients based in USA independently on behalf of the respondent. The above scenario proves that applicant was not mere a computer operator but was being assigned different tasks to deal at her own level by using her abilities and competence. The applicant was not performing her duties manually and clerically, but was discharging her all duties by completing different assignments and task through computer by e-mailing to the head office at USA as well as other clients. The applicant has not brought any documentary evidence or furnished any plausible explanation before this Court to establish her claim that she was a workman, therefore, I am agreed with the counsel for the respondent that an employee who performs some clerical or manual work ancillary or incidental to or in addition to his supervisory and managerial duties performed by him would not become a workman within definition of workman in S.2 (i). Moreover, applicant whose work is of routine and requires application of her mental faculty and supervision of work done by her, therefore, she cannot be treated as a workman. Accordingly, points No.I & II are decided in negative." 11. The affidavit in evidence / deposition of the parties in the aforesaid Grievance Application clearly depicts the following factual positions: Deposition of the petitioner I am aware of the documents filed by the respondents along with written statement and counter affidavit. It is correct to suggest that I have not filed any document with my affidavit in evidence in rebuttal to the documents filed by the respondents. It is correct to suggest that M/s Logo Guru Company (Pvt) Ltd., are respondent in this matter. It is correct to suggest that I have filed annexure 'A" with main application, dated 23.8.2006 pertaining to Right Solution Company. I have received Annexure X-2 with C A, which is dated 12.08.2008 mentioning terms and conditions of Respondent Company which I received in 2009. I have not protested in writing against letter received as Annexure X-2, mentioned above, I have given bio-data along with C.A as annexureX-1. My appointment is annexure X-1 is shown as content writer . I am M.A in information technology in Prinston University . I have presently M.A from KU. The owner of the respondent is Pakistani citizen whereby its partners are United States based. All clients of the respondents got to you behalf its as US clients. It is incorrect to suggest that my working in monitored. It is incorrect to suggest that I have sent as emails to foreigners. It is incorrect that the respondent has no base in Pakistan. It is incorrect that I am deposing falsely . It is incorrect to suggest my post was as Team Lead. It is incorrect to suggest that I have been worked as a Head of the team. It is incorrect to suggest that I was not Team head. My job was no marketing technology . I did not know whether I get salaries from US or not. It is incorrect that I am instructed by US based Manager to improve my performance in writing. My salary was Rs.31,000/-. I am Tax payer . I have challenged notice to termination of service in this case. The termination has to take effect on 23.07.2009. It is correct that I have not given a notice of after my termination of file any case thereafter . It is incorrect that duties mentioned by me to para 5 of my application are not done by me personally and one my subordinate. I was not supervisor of the team. It is incorrect that I am deposing falsely . It is incorrect that I have given a wrong affidavit, and filed as false case." Deposition of respondent-company' s witness The applicant's duties also include online date entry, searching web-sites, networking web-sites and optimizing search engine. Miss Humaira was also working in Logo Guru (Pvt) Ltd. It is correct to suggest thatMiss Humaira was Team Leader of Off Page Staff. Voluntarily says that Miss Humaira was assistant of the applicant. I see
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annexure R/4 filed along with reply statement and says that at serial No.6 it is mentioned that Miss Humaira Khan was performing her duty as SEO Off Page Team Leader. The Job responsibilities of Miss Humaira Khan mentioned at serial No.6 of annexure R/4 are correct. It is correct to suggest that no separate job description letter was issued to the applicant. Voluntarily says that her duties are mentioned in her appointment letter filed as annexure-A. Miss Hala Ali Dodhia is also working as manager content writer and SEO of respondent at U.S office. She is not working in Pakistan. It is correct to suggest that previously she was working in Pakistan. It is correct to suggest that previously she was working in Karachi. Miss Hala Ali Dodhia is married to Zaheer Hussain Dodhia, one of the directors. I do not remember if Miss Hala Ali Dodhia married to Zaheer Hussain Dodhia during the period of her employment. It is correct to suggest that Miss Hala Ali Dodhia sent email from U.S office to the applicant threatening her to resign. It is incorrect to suggest that applicant remained continuously in service since her appointment in M/s Right Solution. It is correct to suggest that applicant was continuously drawing her monthly salary since the date of appointment till her termination of service. Annexure R/4 which is email filed along with reply statement is computer generated document. It is correct to suggest that annexure R/4 is generated prior to the termination of the applicant in the year 2009. It is correct to suggest that portion of annexure R/4 pertaining to the applicant was maneuver by the respondent after personal annoyance of Miss Hala Ali Dodhia with the applicant. It is incorrect to suggest that there was no assistant of the applicant. It is correct to suggest that applicant had never hired services of any person. It is incorrect to suggest that she had no sub-ordinate. It is correct to suggest that warning letter dated 06.04.2009 was issued to the applicant which was signed by Syed Jahanzaib Shah, G.M. It is correct to suggest that in warning letter, 10% of salary of the applicant was deducted for the month of March, 2009. It is correct to suggest that applicant replied said warning letter vide letter dated 08.06.2009. I see annexure-D filed along with main application which is a confidential letter dated 23.06.2009 issued to the applicant signed by Syed Jahanzaib Shah, G.M. It is correct to suggest that as per letter dated 23.06.2009 as matter of punishment the services of the applicant were again placed on probation with a 10% cut in her salary. It is correct to suggest that on 24.06.2009, notice of termination was issued to the applicant. It is correct to suggest that no charge-sheet or show-cause notice was ever issued to the applicant. It is correct to suggest that no enquiry was conducted before the termination of services of applicant." 12. The learned SLC after recording the evidence of the parties and hearing gave decision against the Petitioner on the aforesaid issues. The learned Appellate Tribunal concurred with the decision of the Learned SLC on the same premise. The impugned Judgments passed by both the learned courts below explicitly show that the matter between the parties has been decided on merits based on the evidences produced before them. 13. We have scanned the evidences available on record and found the admission of the Petitioner in the cases, which resolves the entire controversy with regard to the jurisdiction issue of the learned SLC. An excerpt of the same is reproduced as under:- "I am M.A in Information T echnology in Prinston University . I have presently M.A in K.U." "I have received annexure X-2 with C.A which is dated 12.08.2008 mentioning terms and conditions of the respondent company which I received in 2009." "I have not protested in writing against letter received as annexure X-2." "My appointment is annexure X-1 is shown as Content W riter." 14. We have also noticed that the respondent-company had issued the terms and conditions of service of the petitioner vide letter dated 12.08.2008, which explicitly shows the policy of the respondent-company . The main object of the company is to deal with all kind of hardware and software computers. Prima-facie, this was the reason that the petitioner was offered the appointment on the position of Content Writer. We have further noticed that parties had disclosed in the E-mail regarding petitioner 's job responsibilities (at page No.74 of the memo of petition), which are as under:- "i. All on page SEO LDG client sites (keyword R&D, building meta and on-page text) ii. Making on page changes, Meta T ags, upload as and when necessary (done Nina . BYS). iii. Article Writing for JNB and Cicilliot Blogs.
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iv. Maintaining 7 blogs (4 Nina, and one each Logo Snap, Corporate Logo & Logo Guru UK) v. Directing Humera about off-page strategy (e.g keywords, areas & where to submit). vi. Building Monthly SERPs Report / YE Reports." 15. Much emphasis has been laid by the learned counsel for the petitioner on the issue of job description of the Content Writer. To elaborate on the assertion of the petitioner , firstly we would like to define the word "Content writer", Content writers typically create content for the Web. This content can include sales copy, e-books, podcasts, and text for graphics. Content writers use various Web formatting tools, such as HTML, CSS, and JavaScript and content management systems to help create their work. Content writers produce the content for many different types of websites, includ ing blogs, social networks, e-commerce sites, news aggregators, and college websites. Aside from writing content, these writers might also be responsible for making sure the sites' pages and content connect. They're also responsible for setting the overall tone of the site. Content writers accomplish these tasks by researching and deciding what information to include or exclude from the site. 16. Now we would like to elaborate further on the word, "website content writer". A web content writer is a person who specializes in providing relevant content for websites. Every website has a specific target audience and requires the most relevant content. Content should contain keywords (specific business-related terms, which internet users might use in order to search for services or products) aimed towards improving a website's SEO. Most story pieces are centered on marketing products or services, though this is not always the case. Some websites are informational only and do not sell a product or service. Informational content aims to educate the reader with complex information that is easy to understand and retain. Website owners and managers depend on content writers to perform several major tasks: i. Develop, write content as per the business concept. ii. Check for keywords or generate a keyword, and research limitations for the keywords. iii. Create or copy edit to inform the reader , and to promote or sell the company , product, or service described in the website. iv. Produce content to entice and engage visitors so they continue browsing the current website. The longer a visitor stays on a particular site, the greater the likelihood they will eventually become clients or customers. v. Produce content that is smart in its use of keywords, or is focused on search engine optimization (SEO). This means the text must contain relevant keywords and phrases that are most likely to be entered by users in web searches associated with the actual site for better search engine indexing and ranking. vi. Create content that allows the site visitors to get the information they want quickly and efficiently . Efficient and focused web content gives readers access to information in a user -friendly manner . vii. Create unique, useful, and compelling content on a topic primarily for the readers and not merely for the search engines . 17. From the aforementioned, definition, excerpt and depositions of the petitioner , it cannot be denied that the job of content writer in respondent-company involves skills and technical knowledge. Therefore, it can be concluded that the job of a content writer can be termed as that of skilled or technical one. It is settled proposition that any person doing a skilled job is a workman under the definition of that term under Section 2(i) of the Industrial and Commercial Employment, (Standing Orders) Ordinance, 1968. An excerpt of the same is reproduced as under:- "(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." 18. Let us elaborate further on the issue, it was contended by the learned counsel for the petitioner that the petitioner being a content writer is a workman since her main duties and responsib ilities are technical in nature and the respondent-Company being an Industry within the purview of the Industrial Law hence the termination was contrary to the provisions of the Industrial Relation Ordinance 2002. It is important to note whether an employee is a "workman' within the purview of the Industrial Act/Ordinance which is the very foundation of the jurisdiction of the labour court. This court attempts to find out whether content writer doing technical & skilled jobs is workmen under the Act/Ordinance as discussed supra. If the answer is in affirmative, whether the content writer can reap advantage under the law in case of termination, discharge, dismissal and retrenchment or else employee has to
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approach civil court for relief. For better appreciation Section 2(xxx) of Industrial Relations Ordinance 2002, which defines W orkman is reproduced herein below: "Worker" and "Workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay -off or removal has led to that dispute but does not include any person who is employed mainly in an managerial or administrative capacity." 19. Summing up the legal position that arises out of aforesaid definition in our view that a person to be qualified to be a workman must be doing the work which falls in any of the categories, viz., manual, clerical, supervisory or technical. In our view, if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the Act/Ordinance. Hence the position in law as it obtains today is that a person to be a workman under the aforesaid law must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory . It is not enough that he is not covered by any of the four exceptions to the definition. It is evident from the definition that a person work ing in purely managerial and/or supervisory capacity drawing wages exceeding certain amount does not fall within the definition of workman under the law. However , in case of multifarious functions, the nature of the main function performed by the person has to be considered to determine if the person is a "workman." Designation is not a conclusive factor in determining the nature of work of a person. Undue importance need not be accorded to designation, rather the work performed and the principal nature of duties and functions will determine whether the person will fall under the purview of workman under section 2 (i) of the Standing Orders Ordinance, 1968 or under Section 2(xxx) of Industrial Relations Ordinance 2002. There cannot be any straight jacket formula for determining whether the person is a workman under the National Industrial Relation Act/Standing Ordinance as it will be determined upon the facts and circumstances of each case. If a person is mainly doing supervisory work but incidentally or by fraction of time also does clerical or technical job as the case may be, it would be held that he is employed in supervisory work. Conversely if his main work is clerical and/or technical but at the…
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