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Petitioner: PAKISTAN INTERNATIONAL AIRLINES CORPORATION VS Respondent: CHAIRMAN, PUNJAB
Court Name: Lahore High Court Judge(s): Gul Muhammad Khan Title:PAKISTAN INTERNATIONAL AIRLINES CORPORATION vs CHAIRMAN, PUNJAB
JUDGMENT
Reported As: PLD 1979 Lahore 415 Result: Petition accepted Judgment JUDGMENT The petitioner challenges the order dated 7th August, 1978, of the Punjab Labour Appellate Tribunal (hereinafter referred to as the Tribunal), whereby the appeal filed. By respondent No. 2, an employee of the petitioner, was accepted and he was re-instated in service with back benefits. 2. Briefly, the facts leading to this petition are that respondent No. 2 was appointed as an Officer in the Finance Department of the petitioner on 18th February, 1975 (Annexure'A'). He was designated as Liaison Officer and placed in Group VII. On 22nd January, 1976 (Annexure 'C') he applied for promotion to Group VIII, in view of his achievements and some understanding given to him at the time of his appointment. His application was recommended by two of his superiors but the Manager, Funds Management, instead, advised abolition of the post, vide his report dated 11th August, 1917 (Annexure 'D'). His views found favour with the higher authority with the result that the post of respondent No. 2 was abolished. A letter dated 21st August, 1977, informing respondent No. 2 of this decision was also sent and he was paid one month's pay in lieu of notice. 3. On 30th August, 1977, respondent No. 2 sent a notice of grievance under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Industrial Relations Ordinance). The petitioner, however, extended no favourable response. Consequently, respondent No. 2 filed a petition under section 25-A of the Industrial Relations Ordinance before the Labour Court on 10th October, 1977 (Annexure "G'). The petitioner, in its reply dated 21st January, 1978, challenged the jurisdiction of the Labour Court and controverted the allegation of respondent No. 2 that he was a workman entitled to the guarantees contained in Standing Order (hereinafter referred to as S. Os. 12 and 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
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Ordinance, 1968 (hereinafter referred to as the Standing Order - Ordinance). The Labour Court recorded evidence and vide its order dated 30th January, 1978, dismissed the petition holding that as respondent No. 2 eras not a workman, he had no rights guaranteed to him under the Standing Orders Ordinance. 4. Respondent No. 2 - took an appeal before the Tribunal who vide his order dated 7th August, 1978, accepted the same and ordered his re-instatement. The Tribunal also rejected the objection of the petitioner that it had no jurisdiction or that respondent No. 2 was not a workman. The petitioner has now come to this Court invoking its constitutional jurisdiction. 5. The learned counsel for the petitioner raised the following legal points : (I) That respondent No. 2 was not a workman and therefore, neither respondent No. 1, nor did the Labour Court have any jurisdiction to hear and decide his grievance petition ; (2) that no appeal before the Tribunal was available to respondent No. 2 as S. O. 12 under which proceedings had been taken; adopted by reference only section 25-A of the Industrial Relations Ordinance and not its appeal provision in section 37 (3) ; (3) that in any case; respondent No. 2 had no right of appeal before the Tribunal in view of the notification dated 9th September, 1976, issued by the Federal Government under powers vesting in it by virtue of section 1 (3) of the Industrial Relations Ordinance excluding operation of the Industrial Relations Ordinance in favour of such persons who were drawing wages in groups V to X of the P. I: A. Corporation. 6. The learned counsel for respondent No. 2 had also raised a preliminary objection, which may be dealt with first. It was contended that as the petitioner did not object to the jurisdiction of the Labour Court and rather applied for the transfer of the case before it to another Labour Court, the petitioner shall be deemed to have acquiesced in its jurisdiction. The argument was that if the petitioner had any objection to the jurisdiction of any of the two authorities, it would not have asked the Tribunal to transfer the case to another Labour Court. This objection is, however, not sound. Firstly the learned counsel for the petitioner did challenge the jurisdiction under section 25-A. Reference be made to para. 2 of the preliminary objections. It is also clear from para. 3 of the order of the Labour Court that objection was raised before it during hearing also. Secondly, the petitioner was a respondent before the Labour Court and, therefore, this objection cannot succeed in view of the law laid down by the Supreme Court in Muhammad Afzal v. Board of Revenue (PLD1967SC 314). The objection is, therefore, not sustained. 7. As for the first legal point, that respondent No. 2 was not a workman as defined in the Standing Orders Ordinance and that his case could not be entertained and adjudicated upon by those Courts, reliance was placed by the learned counsel for the petitioner, on the duties assigned to the respondent at the time of his appointment, which are as under (1) Recovery of all P. I. A. Dues against all Ministries of the Government of Pakistan and other Government Departments/Officer by personal visits, correspondence and other means of communications. (2) Expedite recovery of P. I. A. Dues from all Foreign Missions at Islamabad in the manner aforesaid. (3) Actively follow-up with the above offices and deal with all queries raised by any office, in accordance with the laid down procedure. (4) Assisting Station Accountant P. I. A., Rawalpindi in maintaining a complete and up to date file of all outstanding dues recoverable from all category of debtors. (5) Follow-up with the Department concerned any matter referred to by the Head Office. (6) Submission of a fortnight report of recovery showing the name of the Department, invoice and amount realised, to Credit Control Section through Station Accountant, Rawalpindi. Reference was also made to the representation dated 27th January, 1978, made by respondent No. 2 for promotion to group VII. He stated in para. 2 thereof :
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. ....And accordingly I took over my assignment to show my capabilities, initiative and drive. The learned counsel also went through the cross-examination of respondent No. 2 before tide Labour Court, and stated that the respondent had a much higher status as he was given a car for his official duties, he could entertain people at the expense of the petitioner, he used to go to Lahore, Karachi and Peshawar in connection with his duties to meet officers. He also used to go to the Ministry of Finance, other Ministries and Embassies for Credit. Respondent No. 2 also admitted to be in possession of an Apron Pass issued to him by the P. I. A. 8. An organisational chart had also been produced, under the directions of this Court showing the position of respondent No. 2 vis-a-vis various other categories of officials/officers as under Sr. No.Category of Officials/Officers Pay group 1. Junior Assistant/typists and Accounts Assistants. III 2. Accounts Supervisors.IV 3. Junior Accounts Officers.V 4. Accounts Managers/Assistant Accounts Managers (outstations) Assistant Accounts Officers Head Office Karachi. VI District Managers, District Sales Managers, Assistant District Managers, etc., have been placed in group VII in which the respondent was also placed. According to the above chart the status of the respondent is four steps higher than Accounts Assistants. He is three status above the Accounts Supervisors, two steps higher than Junior Accounts Officers, one step higher than outstation Accounts Managers and at par with the District Managers and Station Managers etc. He had also been recommended for group VIII by two of his superiors. 9. The learned counsel for the respondent, however, submitted that the respondent was a workman. He referred to his notice under section 25-A of the Industrial Relations Ordinance, his petition under the same provision of law to the Labour Court as well as his statement made before that Court to say that his ~ duties were such that he was covered by the definition of the workman as given in the Standing Orders Ordinance. He also cited a few judgments to support his plea. According to the notice under section 25-A and the petition under the same provision, the duties of the respondent were to make recoveries and collect debts arnounting to crore of rupees. He has also to see that the burden of taxes on the Corporation was reduced and its financial stability improved. 10. Apart from his normal duties as a Liaison Officer respondent No. 2 performed other extra duties of conducting Departmental Inquiries. In his statement before the Labour Court, however, respondent No. 2 stated his duties as under :- (1) To maintain a ledger ; (2) to write letters in order to recover credits from various establishments ; (3) to prepare invoice ; (4) to maintain thirty files and six registers. He, however, denied that he had any managerial or supervisory duties and stated that he neither had any subordinate nor did he have any power to engage or discharge any employee. 11. The precise question requiring determination is whether it could be inferred in law on the basis of the factual position as given above, that respondent No. 2, was a workman. It is now well established under the authority of the Supreme Court in Brooke Bond (Pakistan) Ltd. v. Conciliator (PLD1977 SC 237) that the definitions of 'workers' or 'workmen' as given in the Industrial Relations Ordinance and Standing Orders Ordinance are substantially different. The definition of 'worker' in the Industrial Relations Ordinance is more comprehensive and it includes all persons other than the employer. This effect was brought about by an amending Act in 1973. The change made is so radical that though the Supreme Court approved its previous view and a finding of the High Court that a salesman was not a 'workman' under the Standing Orders Ordinance, yet their Lordships
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while comparing the two definitions held that a salesman was a workman under the Industrial Relations Ordinance. The discussion is at page 271 of the judgment referred to above. In the. Case in band respondent No. 2, had applied to the Labour Court in respect of his rights under S. O. 12 (3) of the Standing Orders Ordinance. It is, therefore, the definition under the Standing Orders Ordinance and not that of the Industrial Relations Ordinance that is to be considered. It has also been held in a very well-considered judgment in the case of I. E. Saleh v. International Laboratories Ltd. (PLD 1975 Kar. 279) that it is the definition of 'workman' as given in Standing Orders Ordinance that applies to a person who is seeking relief under S. O. 12 (3) and not the one given in Industrial Relations Ordinance. It may be noted here that his Lordship considered practically the entire relevant case-law on the point to hold that view. There are important observations to the same effect made in the case of Bashir A. Malik v. Punjab Labour Court (PLD 1973 Lah. 594) at page 599- B which may be reproduced below with advantage : "The definition in this section does not contain any reference to supervisory capacity. Wherever the Legislature wanted to exclude people in supervisory capacity from the plea 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 'worker' and 'workman'. The mere fact, therefore, that a person who is otherwise covered by the definition of 'workman' as given in Ordinance V1 of 1968, also performs supervisory function would not be operative to exclude him from the definition of 'workman'." 12. The workman under the Standing Orders Ordinance 'means any person employed in any industrial or commercial concern to do any skilled or unskilled, manual or clerical work for hire or reward. The scope of this provision has been considered in a few cases which are referred to hereinafter. It may, however, be noted that the definition of 'workman' under the Industrial Disputes Act, 1947, and the Industrial Disputes Ordinance, 1959, had the similar import and scope as given to it in the Standing Orders Ordinance. In Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkanane Brooke Bond Pakistan Ltd. (PLD 1969 Lah. 717) a Division Bench of this Court laid down a criteria to ascertain if a person is or is not a 'workman'. The relevant observations are : "According to this 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 employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him." 13. Their Lordships relied on the judgment of the Supreme Court in Pakistan Tobacco Co. Ltd. v. Pakistan Tobacco Co. Employees' Union (PLD 1961 SC 403) in which practically the same definition of the workman as contained in section 2 (5) of the Industrial Disputes Art, 1947, was interpreted. The relevant observations of their Lordships of the Supreme Court at page 407 are as under : " I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company, are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical
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establishment who perform the paper work connected with the operations of the Company. The work of salesmen is in a wholly different category from manual work or clerical work, and feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of workmen?' 14. The learned counsel for respondent No. 2, had relied upon the judgment in Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani (1979 SCMR 304) and referred to the following observation in support of his submissions : "We have examined the chart of duties of the respondent. It is also clear from the statement in his affidavit that he had no supervisory function at all after he was asked to act on the instructions from Farid Khan." His plea is that as the respondent also had not supervisory functions to perform his duties he was - workman. Similar observations made in another illuminating judgment in the case of Bashir A. Malik were also cited. It was held in that case that "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 functions would not be operative to exclude him from the definition of workman." Reference was also made to the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Ablul Ghani (PLD 1975 Kar. 342). It may be of advantage to reproduce the relevant portion of the judgment which is as under : "Additionally, Mr. Mansoor Ahmed Khan has urged that the respondent was Chief Accountant and getting a salary of Rs. 1,100 per month. On the other hand the case of the respondent is that in spite of his being styled as a Chief Accountant; his duties were clerical and skilled in their nature. The further contentions is that he had to seek instructions from Mr. Fareed Khan and not from the owner. In my view, neither the designation nor the salary is a factor for determination of the status of the 'employee'. The only criterion is the work that an employee has to do and the answerability for the performance. These contentions of Mr. Mansoor Ahmad Khan are misconceived. I must also record a further contention of Mr. Naimuddin to the effect that the respondent, if he was to be held to occupy a position of supervision or control, could not be termed to be supervising or controlling the entire establishment but only a branch or Department of this establishment and for such reason could not be said to be covered by the definition of 'employer' as stated in section 2 (c) (iii) of the Ordinance. I am inclined to agree with such contention but it is not necessary to pursue the point any further. 15. It is well established that in order to determine the status of a employee, his main duties, and not those which are either incidental to the main duties or those which are minor or of insignificant importance, are B to be taken into consideration. Reference be again made to the Supreme Court judgment in Brooke Bond case and other cases cited above. The status of the respondent as stated in para. 8 above, was equivalent to Accounts Officer, Head Office Karachi and Assistant Accounts Manager, Accounts Manager at the outstations. In the other Department his rank could be equated with the Station Manager etc. According to his own version in his application under section 25-A', the respondent had been, assigned the job of collecting arrears worth crores of rupees from Ministries and Embassies. He had to see that burden of taxes was reduced on the Corporation ; he had to keep an eye on the financial stability of the petitioner Corporation and he was also required to occasionally conduct departmental inquiries. In view of his cross-examination before the Labour Court, the respondent was given a car and could entertain people at the cost of the petitioner. He could go to Lahore, Karachi and Peshawar to meet officers in the Ministries and Embassies and bad also an 'Apron Pass' probably to receive such officers. May be the respondent was thus maintaining some accounts etc. But the question is that if the job of the respondent was
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only to maintain accounts, ledgers, credit jackets and other similar documents in addition to going from office to office to seek recoveries of outstanding amounts as stated by his learned counsel, then why did the petitioner not depute any ordinary official from groups III-VI and why did it engage a man in group VII for this 'clerical' work. No suitable and convincing reply to this aspect of the case was furnished on behalf of the. Respondent. However, the 'minute I' prepared by the respondent and now placed on record as Annexure'C dated 27th January, 1976, offers an answer. The respondent had taken over this job not for doing some clerical or manual work but he took over that assignment to show his capabilities,, initiative and drive. Further, the job entrusted to respondent No. 2 was to recover crones of rupees from Government Ministries and Foreign Missions by personal contacts. Obviously, it was a very important and a sensitive job. The respondent apparently had not only to recover the outstanding debts but, would have been required to see that the recoveries were effected not at the cost of business or good relations. A Laision Officer, therefore, appointed for the purpose, required much more tact, initiative, capability and drive than that required of a good salesman. A salesman would have been sent out by the petitioner to secure more business or sell more seats. The respondent had to recover substantial amounts and ensure that the clients of the petitioner did so amicably. Had not that been the intention they would have appointed rather a lawyer for the purpose. He was provided with a car when on his duty, an apron pass, actual entertainment expenses and pay in group VII. Such a status with all those facilities cannot be given to a mere clerical worker. Had that been intended an Accounts Assistant in group III would have been sufficient. Therefore, any clerical work that the respondent may be doing must be just incidental to the main work of employing tact, initiative and drive to recover those crores of rupees without losing the business and good-will. I have, therefore, no doubt that the respondent, as he was then placed in the petitioner' establishment, could not, even for a moment, be considered to be doing mainly a manual, clerical, skilled or unskilled job. He was, therefore, not a workman. 16. As for the second point, it will be advantageous to survey the legislative history of the relevant provision to understand the import and impact of the objection. Standing Orders Ordinance as promulgated originally provided in S. O. 12 (3), for the termination of services of a workman by giving him one month notice in writing or pay in lieu thereof. It further provided that if termination was due to misconduct procedure in S. O. 15 was to be followed. S. O. 18 stipulated that if a workman, whose services were terminated happened to be an office-bearer of a Trade Union, he could take his grievance to an Industrial Court established under the West Pakistan Industrial Disputes Ordinance, 1968. The Industrial Relations Ordinance which repealed the West Pakistan Industrial Disputes Ordinance was promulgated on 13th November, 1969, as Ordinance No. XXIII of 1969. Section 35 of this Ordinance authorised the Provincial Government to establish Labour Courts to adjudicate upon and determine an industrial dispute. 17. On 13th April, 1972, Ordinance No. IX of 1972, was promulgated to amend the Standing Orders Ordinance of 1968 as well as the Industrial Relations Ordinance. In Standing Orders Ordinance, S. O. 12 (3) was amended to provide that an order in writing with reasons shall have to be made for the termination etc. Of services of a workman. S. O. 18 was omitted. Section 25-A was inserted in the Industrial Relations Ordinance. It provided for a right to every worker to represent to his employer and to take to a Labour Court any grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. Section 37 (3) of the Industrial Relations Ordinance was. Also amended to make an order under section 25-A appealable before the Labour Appellate Tribunal. 18. S. O. 12 (3) was recast by Ordinance XVIII of 1972 with effect from 24th May, 1972. The important change made was that the remedy under section 25-A' of the Industrial Relations Ordinance was applied by reference to the right created under S. O. 12 (3); so that the worker 'may bring his
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grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance and thereupon the provisions of the said section shall apply as they apply to the redress of individual grievances. ' S. O. 12 (3) was again amended and for the words 'bring his grievance to the notice of his employer in the manner laid down in' the words `take action in accordance with the provisions of were substituted. This was done in view of Ordinance XXIII of 1973 with effect from 9th February, 1973. Section 25-A of the Industrial Relations Ordinance was also amended by Ordinance XLVIII of 1172 whereby the words 'Labour Court' were substituted by the words `Junior Labour Court' with effect from 6th November, 1972. 19. Subsections (1), (2), (3), (4) and (5) of section 25-A of the Industrial Relations Ordinance and S. O. 12 (3) have not undergone any material change till today except that vide Act XI of 1976, enforced on 12th April, 1976, all cases pending immediately before 16th January, 1976. In a Junior Labour Court under section 25-A of the Industrial Relations Ordinance were transferred to the Labour Court. The words 'Junior Labour Court' in section 25-A were substituted by the words 'Labour Court' and `Trade Union' by the words 'Collective Bargaining Agent'. Subsections (6) and (7) were introduced in section 25-A of the Industrial Relations Ordinance vide amendment Act XXIII of 1973, but this amendment was later omitted by Ordinance IX of 1977, as those provisions were of transitory nature. Subsections (8), (9) and (10) of section 25-A were also…
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