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Petitioner: HOUSE BUILDING FINANCE CORPORATION through Chief Manager VS Respondent: UZAIR LATIF KHAN and others
Court Name: National Industrial Relations Commission Judge(s): Tanvir Ahmed Khan, Raja Abdullah Khan, Muhammad Shabbir Jamal Title:HOUSE BUILDING FINANCE CORPORATION through Chief Manager vs UZAIR
LATIF KHAN and others Case No.: Appeals Nos.12(20) and 24(123) of 2005-L Date of Judgment:2006-05-29 Reported As: 2007 PLC 287 Result: Order accordingly Judgment ORDER ' MUHAMMAD SHABBIR JAMAL (MEMBER).--- This appeal is directed against the order, dated 1-6- 2005 passed by the learned Single Bench, Lahore Branch whereby grievance petition of the respondents was accepted and the impugned order of HBFC, dated 8-9-2004 was declared as of no effect on the ground that the respondent No,1 by the said letter was deprived of lawful trade union activities as the same was held as an act of unfair labour practice on the part of the appellant. It is contended by the respondents that the appellant vide administrative circular, dated 2-8-2001 upgraded all grade 7 posts as Assistant Manager without there being any change in the nature of their duties. It is contended that the respondent No,1 continues to perform duties as he was performing prior to his so-called promotion and as such he is a workman under the law. It is also contended that all employees of the appellant establishment up to the status of Superintendent retained their position as workmen even after their up-gradation. It is contended that these up-gradations/ promotions based on mala fide are unjust and intended to victimize the employees for trade union activities. It is contended that as such it is an act of unfair labour practice on the part of Appellate Management. These averments are opposed by the appellant on the plea that the petition and the jurisdiction of NIRC is hit by section 2A of the Federal Service Tribunals Act, 1973 read with Article 212 of the Constitution of the Islamic. Republic of Pakistan, 1973. Further, the plea taken by the appellant is that'there is no evidence of any act of unfair labour practice on the part of the appellant Management. It is contended by the appellant that the respondent 1 has been promoted to the managerial position vide order, dated 13-8-2004 which has been implemented and has not been challenged by him. It is further contended that the
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respondent No,1 after promotion has been posted as Assistant Manager of One Window Operation. It is also contended that matters pertaining to grant of loans/finances by the HBFC has underwent material change resulting in the introduction of one window operation and therefore, the Corporation in order to meet of this change decided to upgrade Superintendent in Grade-7 to exercise responsibility essential of managerial nature. It is in this background that the administrative circular, dated 2-8-2001 was issued to give effect to this decision. Another plea of the appellant is that the emoluments of these employees have also been increased. It contended that they have been given facilities and benefits, which were otherwise not available to them before promotion. It is contended that almost all the Superintendents and those who were upgraded and promoted accepted the new offer of appointment, as Assistant Managers. 2. The learned Single Bench after hearing both parties decided the issue of section 2A in favour of NIRC and assumed the jurisdiction to determine the grievance petition pending before him filed by the respondent. He also examined the witnesses of both parties on the basis of their respective affidavits in evidence before deciding the petition in favour of the respondents. 3. The impugned order of the learned Single Bench has been assailed also on the ground that the learned Single Bench has failed to appreciate and take into judicial notice the fact that the employees of HBFC were civil servants in -view of section 2-A of the Service Tribunals Act, 1973 whereby NIRC's jurisdiction is barred. It is further stated that the learned Single Bench came to the conclusion that trade union activities are not part of terms and conditions of service. It is contended that in this he failed to appreciate that terms and conditions of service can be contractual and statutory whereby statutory conditions of service are those rights, liabilities and responsibilities as are incorporated under various labour laws and regulations. It is contended that the well settled provision of law is that the litigant claiming status of workmen is to lead positive evidence, oral or documentary to establish that his main and primary duties are manual or clerical. It is contended that none of the five witnesses who appeared before learned Single Bench has done anything to establish his status as workman. It is further contended that the learned Single Bench has not taken into account the fact that the original petition was filed by two petitioners namely, Uzair Latif Khan in his individual capacity and HBFC Workers Union of Pakistan claiming to have the status of CBA. It is contended that the witnesses who appeared before he learned Single Bench including Uzair Latif Khan deposed on behalf of Uzair Latif Khan but no separate independent witness was led by HBFC Workers Union of Pakistan. It is also contended that the petition was barred by doctrine of estoppels by the conduct of the respondents. Plea taken in this regard is that those who were upgraded and promoted as Assistant Managers have not only accepted the position of Assistant Managers but are also enjoying the facilities and benefits available to that post. It is contended that the Honourable Single Bench did not consider the fact that in the original affidavits in evidence and in their cross-examination none of five witnesses have filed any detail regarding nature of their duties being performed by them. It is alleged that the appellant as such had no opportunity to subject the witnesses producing the evidence to cross-examination. It is contended that in this way the documents being extraneous in law were taken into considerations, which have no nexus with subject-matter of the case. It is contended that documents on record produced after filing of affidavit in evidence cannot be taken into consitleration unless subject to cross-examination. It is also alleged that no notice was issued to the appellant at the time of production of documents such as Exhibits P/6 to P/8 by the learned Single Bench NIRC which led to miscarriage of justice. It is contended that the posts of Assistant Managers were in existence even before the Posts of Superintendents were abolished by upgrading and promoting the incumbents of these posts as Assistant Managers 'with increased emoluments/salaries. It is contended that an employee upon his promotion or appointment to managerial position ceases to be a workman under the law and is disqualified to be a member or office-bearer of a trade union of workmen. It is
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contended that this legal provision is statutory in nature and in no manner relates to an act of unfair labour practice. It is also contended that the conclusion of the learned Single Bench that the Assistant Managers were workmen merely due to the admission of Muhammad Akram Tariq, Chief Manager in his cross-examination that no power of punishment or dismissal vests with the Assistant Manager is not sustainable in law. It is contended that in this connection the learned Single Bench has not appreciated the law that the power of hire and fire is not the requirement to determine the status of a workman. It is also contended that the assumption of the learned Single Bench that promotion cannot be imposed on an employee is not correct. It is contended that it cannot be refused, because it is the prerogative of the employer to utilize the services of an employee to its maximum advantage in the interest of business. It is contended that since they have accepted the up-gradation and promotion and also availed financial facilities, there is no justification and rationality to decline the same now. It is also contended that salary and designation cannot be ignored while determining the status of an employee. It is further stated that Uzair Latif Khan himself had approached FST for his promotion and now his denial of promotion is not justified. 4. During the course of hearing of the instant appeal additional affidavit in evidence along with certain documents including a chart of duties of Superintendents and Assistant Managers has been filed by the learned counsel appearing for the appellant. The learned counsel appearing on behalf of respondents also filed a counter affidavit along with an outline of arguments. 5. In the additional affidavit' in evidence filed on behalf of the appellant it is contended that Grade-I to Grade- posts in the appellant establishment are in the clerical or non VIIclerical cadres whereas grade VII post has been abolished. In this setup Assistant Managers come under the cadre of officer grade-III. It is further contended that prior to the up-gradation, there were certain Superintendents who were promoted as Assistant Managers through Departmental Promotion Committee (DPC). As on 31-7-2001 about 561 employees were working as Superintendents and about 218 were in the Grade-VII who were already working as Assistant Managers in officer Grade- III. Through Circular, dated 31-7-2001, the management decided to abolish Grade-VII Cadre. Consequently, all the Superintendents who were working in Grade-VII were up-graded to the post of Assistant Manager in the category of Officer Grade-III. As a result of this up-gradation, there was not only an increase in their salary but also in their perks and other benefits attached with the post of Assistant Manager such as residential telephone facility, enhancement in house building advance limit, car advance, and utilities payments which otherwise previously was not available to Superintendents etc. Apart from change in nature of duties. It is also contended that consequent upon up-gradation, now thirty (30) Assistant Managers are working as District Managers. As District Managers they are over all incharge of their respective independent sections/offices/ departments. It further contended that 5 to 6 persons and even in some cases more work under these District Managers as Naib-Qasids, Assistants, Typists, Senior Assistants, Drivers and Chowkidars. These Assistant Managers who are working as District Managers, can sanction/grant leave to the staff working under them, prepare their Annual Confidential Reports (ACRs), prepare credit worthiness reports of the clients by using their own initiative and imagination, recommend cases for investment up to Rs,75,00,000, sign cheques up to Rs,1.00 Million, on behalf of HBFC, recommend sale of the mortgaged properties of defaulters, issue recovery notices to the defaulters, transfer employees working under them within their District, keeping in view the exigencies of and nature of work, represent HBFC before all courts of law, Services Tribunals, Banking Courts and other Courts of law and sign affidavits, counter-affidavits, plaints etc. It is stated that the aforesaid duties/functions are being performed by these Assistant Managers in their capacity as District Mangers. It is further stated that any work other than that performed by these Assistant Managers are only ancillary and incidental to the aforesaid main task which is of
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supervisory nature and control. It is further stated that none of these duties were being performed in the past by Superintendents as are now performed by of up-aded/promoted Assistant Managers as District Managers. It is also stated that 11 Assistant Managers whose names are provided in the list as Annexure B are working as Recovery Tehsildars/ Assistant Collectors Grade-I. It is further stated that they have been empowered to recover the loans from defaulters as arrears of land revenue including powers to issue warrant of arrest of defaulters, attachment of immoveable property and distress warrant of moveable properties of defaulters etc. It is contended that all these powers were not available to the then Recovery Collectors acting as Revenue Officers when they were earlier peTehsildar/Assistantrforming work as Superintendents etc. Under the Lands Revenue Act, 1967. It is stated that 45 persons who have been promoted as Assistant Managers from the posts of Superintendents are overall in charge of their respective branches/departments. List of these Assistant Managers with their names, is provided as Annexure "C". These Assistant Managers also deal with matters such as preparation of drafts to be sent to the concerned Ministries and also to the State Bank of Pakistan which job can be performed with responsibility and with initiative and imagination. The additional affidavit so filed has given detail of functions being assigned to and performed by persons whose names and designations are provided in the list. This additional affidavit has been signed by Mr. Muhammad Akram Tariq Chief Manager Personnel/Legal/IR of the appellant Corporation. 6. It is contended in the counter affidavit filed by the other party that the appellant has incorrectly mentioned the Assistant Managers as performing supervisory duties so as to be out of the ambit of the definition of worker/workman. It is contended that HBFC vide Circular, dated 2-8-2001 substituted the post of Superintendent by the post of Assistant Manager and whereby the posts of Superintendents were abolished. The Assistant Manager due to up-gradation vide aforesaid said Circular continued to perform the same duties and functions as they were performing as Superintendents and so they maintained their status of workmen. It is contended that even otherwise under the Manual of Powers of HBFC, Assistant Manager has no power of administrative and managerial nature because he performs functions of clerical nature. It is contended that the appellant Corporation has wrongly attempted to oust them from the definition of worker/workman by adding the word, In charge' before their names. It is stated that it is clear from the contents of the affidavit filed by HBFC that all Assistant Managers are performing duties of clerical nature and they do not have any power of hire and fire or otherwise to take decision in any matter. It is further contended that Manager Grade-II is posted as District Manager and in case of non-availability of Manager Grade-II, Assistant Manager is posted as District Manager and only District Manager has some supervisory power, but due to omission of clause (b) from the definition of workman in IRO, 1969 the Assistant Manager acting as District Manager under the new IRO, 2002 continues to retain the status of workmen. It shows that there is no change in the nature of duties performed by Assistant Manager due to the aforesaid circular of 2-8-2001. It is contended that the new affidavit has wrongly and by misstatement of facts has tried to exclude Assistant Manager from the definition of worker and workman. 7. In support of their respective contentions the case was argued by Mr. Mehmood Abdul Ghani the learned counsel for the appellant and Mr. M.A. Ghani, the learned counsel for the respondents. It was argued by the learned counsel for appellant that Superintendents before promotion performed entirely different duties than those which are required to be performed after promotion as evident from the chart of duties. He has argued that a Superintendent deals with matters such as petty cash, processing of personal files, preparation of salary/pension bills, processing of budget files etc. Whereas as Assistant Managers perform duties mostly of managerial nature. It was further argued by the learned counsel that if the respondent No,1 performs the same duty after promotion, then burden of proof lies on him to establish his contention. He has contended that the
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burden of proof does not lie on the employer but only on the worker. He cited that it was held by the Supreme Court in case Managing Director Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunals 1993 SCMR 488 that whether an employee was a workman has to be proved by him by production of documentary or oral evidence in his support. He also cited the judgment of the Supreme Court in National Bank of Pakistan v. Punjab Labour Court No,5 Faisalabad and 2 others 1993 SCMR 672. It was held in this judgment that person who approaches a Court on the basis of averment that he is a workman within the definition of section 2(xxxviii) of the Ordinance, the burden of proof lies on him and not n the employer. He said that in Zubair Ahmad v. Sindh Labour Appellate Tribunal Karachi PLD 1985 Kar. 760 it was held that before an action under section 25-A could'be initiated applicant should prove by evidence that he was a workman. The learned counsel argued that the Supreme Court in General Manager Hotel International Lahore v. Bashir A. Malik PLD .1986 SC 103 held that we are unable to agree with the learned single Judge that mental toil would fall within the expression of manual Labour. It was held that 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 duties on the same principle _ cannot convert the nature of his work to be clerical. It was held that the real test is as to what constitutes the primary duties assigned to employees 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. The learned counsel argued that a workman on promotion to the cadre of an officer does not remain a workman. In this regard he relied on 1996 PLC 714 in which High Court after thorough examination of material on record found that petitioner was not workman and set aside the order of his reinstatement.. The High Court in a well considered verdict on the basis of evidence on record had found that the petitioner was not a workman but an officer in the establishment enjoying supervisory status when his services were terminated and therefore his claim was not accepted by the Supreme Court to be a workman. The learned counsel also relied on 1985 SCMR 1511 in which it was held by the Supreme Court that person employed, merely to do manual or clerical work, wether it be skilled or unskilled is a workman. Persons employed in supervisory, administrative or managerial capacity are completely excluded from ambit of definition of workmen, because duties of workmen have nothing to do with control or management as they do not involve taking of any initiative or making decision and or more or less involved in work of routine. He argued that nature of work performed by employee was therefore deciding faetor in determining as to whether or not employee was a workman. He cited that the High Court of Sindh Karachi in C.P. No,D-1039 of 2001 held that the contention that even after his promotion the petitioner continued to do managerial or clerical work which would bring him within the definition of workman is also without any substance in view of the -principle that when a person basically performed supervisory or managerial functions he would not be treated as workman if he performed any clerical or managerial work incidental or ancillary to the supervisory and managerial functions as was pronounced by the Supreme Court in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103. The learned counsel has also argued that an employee can only be declared to be a workman, if the main duties performed by him are of clerical nature and not otherwise. He argued that it was a matter of common sense that every employee, even those occupying higher position had to do work of clerical nature on certain casual occasions. He contended that it did not mean that those officers would also be related as workmen. He said that the result would be that the clerical or manual duties must be of primary nature and not of an occasional nature. Merely by producing one document would not be sufficient to hold that the respondent was employed on the job of clerical nature. He contended that it is well-settled law that merely because an employee has no powers of hire and fire would not bring him within the ambit of a workman to invoke he jurisdiction
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of Labour Court. He relied on Dilshad Khan Lodhi v. Allied Bank of Pakistan 2005 PLC 130 to substantiate his contention. 8. The learned counsel also argued that the petitioner must be an aggrieved party. He said that respondent No,2 i,e, the HBFC Workers Union of Pakistan is not the aggrieved party and so had no locus standi to file the petition. Reliance in this regard was placed on Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan PLD 1964 (WP) Lah. 138, in which it was, held that the Association, although registered has no locus standi to make application for personal and individual grievance of its members. The petition as such was dismissed. 9: The learned counsel has further argued that it is not necessary that an officer appointed in managerial capacity should have power of hire and fire. In this regard he relied on the judgment in Muhammad Tariq Saeed Hashmi v. Habib Bank Limited and 3 others 1983 PLC 810, in which it was held that basically appointed as officer though having no power of hire and fire and performing some clerical work is not a workman. He cited that in case Pakistan National Oils Ltd. Dhaka v. Chairman Second Labour Court of East Pakistan and 2 others 1970 PLC 733 it was held that mere absence of power, in discharging duties of a Supervisor or a Manager or an Administrator, of appointment and dismissal does not exclude him from the category of the excluded person in sub- clauses (1) and (2) of clause (v)'of section 2 of Standing Orders Ordinance 1968 and as such he could not be entitled to benefit under section 19 of the Act. 10. The learned counsel for the appellant reiterated his contentions also with regard to the application of section 2A to the exclusion of NIRC's jurisdiction. In this regard he quoted the following authorities:- 2005 PLC 1 HBFC v. Member, NIRC, 2005 PLC (C.S.). 112 Trustees of Board v. Member NIRC, 2002 PLC (C.S.) 1650, Civil Petitions Nos. 481-K, 483-K, 1969 before the Supreme Court, 2002 PLC 80, Sui Northern Gas Company Limited v. Member NIRC and another PLD 1999 Lah. 145, 1998 PLC 268, 2000 PLC (C.S.) 1135. 11. The learned counsel for the respondents by reiterating his contentions taken before the learned single Bench has argued that the respondent's status as workman has not changed and so he continues to retain his position as workman. He has contended that in the definition of "workman" given in IRO, 1969 only a lower category of Supervisors drawing the prescribed salary 'was included whereas in the new legislation namely, IRO, 2002 this provision of the definition has been deleted and the definition of "workman" henceforth includes . Even supervisory staff. He in this regard has also referred to legal advice solicited by HBFC from a law firm placed on their record, wherein it is opined that under the amended definition even a supervisor is a workman. The learned Counsel has further argued that as there is no change in the nature of duties after up-gradation/promotion of the respondent 1. He has contended that he is still a workman. It is also contended that the Chief Manager 'of HBFC as RW/1 has admitted before the learned Single Bench that Assistant Manager has no power of hire and fire and he cannot even grant leave to any body. It is further pointed out by him that RW/1 has also admitted that total number of Assistant Managers in HBFC are 718 and those who according to 'him are workmen (clerical and non-clerical staff) are 400 in number and out of this more than 200 are engaged in offices and thus leaving only such staff to serve 718 Assistant Managers meaning thereby that even these 200 employees are engaged with various branches of HBFC throughout Pakistan and thus leaving no clerical and non-clerical staff to work with the Assistant Managers. He has also rebutted the contentions of the learned counsel for the appellant on the issue of the application of section 2-A of the Service Tribunals Act, 1973. He has argued that the same is a procedural law as held by the Honourable Supreme Court in 1999 SCMR 197 and 1999 SCMR 1992 and in the absence of corresponding amendment in the Civil Servants Act, 1973 which is substantive law, the employees do not become automatically Civil Servants as held by the Honourable Supreme Court in 1999 SCMR 1526 (1539). He has argued that by mere insertion
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of section 2-A in the procedural law i,e, in the Service Tribunals Act, 1973 does not confer status of civil servants on the employees of Federally controlled…
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