Khalid Vs Pakistan Tobacco Company Akora Khattak District Nowshera KP through its General Manager and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

WP No. 362-P/2021

Khalid vs. Pakistan Tobacco Company Akora Khattak, District Nowshera, KP through its General Manager and others.

J U D G M E N T.

Date of hearing: 08.07.2021

Petitioner (s) By Mr. Bilal Ahmad Kakaizai, Advocate.

Respondent (s) By Mr. Alam Zeb Khan, Advocate.

SYED ARSHAD ALI, J.:- Through this consolidated judgment, we shall dispose of this petition as well as connected petition. Particulars of the said petitions are as under:-

S. No. Case Title

1.WP No. 362-P/2021 “Khalid vs. Pakistan Tobacco Company, Akora Khattak, District Nowshera, Khyber Pakhtunkhwa, through is General Manager and others”.

2.WP No. 363-P/2021 “Irfanullah vs. Pakistan Tobacco Company, Akora Khattak, District Nowshera, Khyber Pakhtunkhwa, through its General Manager and others”.

2.Petitioners, in both the petitions, have sought the following common prayer:-

“It is, therefore, requested that on acceptance of this Writ Petition the impugned judgment dated 29.10.2020 of Respondent No.7 be declared illegal and unlawful in consequence whereof the same may please be set aside and Order/Judgment of Trial Court i.e. Respondent No.6 dated20.02.2020 may please be restored with all back wages and benefits with such other relief as may deem fit in the circumstances of the case may also be granted”.

3.Brief facts of the case are that the present petitioners were appointed as Field Assistant in the respondent’s company in the year, 1994 and 2006

respectively; they were promoted to the post of Field Officer.

While serving as Field Officers, the petitioners had received show cause notices along with the statement of allegations that from 20th to 23th August, 2011, 18 trucks carrying tobacco leaf reached at Charguli Storages, without proper documents and escort guards, due to negligence of the Petitioners. Although, the petitioners filed their replies to the show cause notices but without conducting any inquiry or providing opportunity of personal hearing, they were dismissed from service vide order dated 06.01.2020. Against that, the petitioners filed grievance petitions under Section 37 of Khyber Pakhtunkhwa Industrial Relations Act, 2010 (“Act”) before the learned President Officer, Labour Court, Peshawar. During pendency of grievance petitions, the Federal Government promulgated the Industrial Relation Act, 2012.

Since the Respondent establishment is a trans-provincial; as such in consequence thereof, the grievance petitions of the present petitioners were adjourned sine die. Later, the grievance petitions of the petitioners were transferred to respondent No.6 i.e. Single Bench of NIRC at Peshawar. The respondents contested the grievance petitions of the petitioners by filing written statement. Pro and contra evidence of the parties was recorded. The learned Single Bench at Peshawar, after hearing arguments of both the parties, allowed the grievance petitions of the petitioners and directed the respondents to reinstate the petitioners in service with full

back benefits, within period of 30 days from passing of the order vide judgment/order dated 20.02.2020. Feeling aggrieved, the respondents No.1 to 5 filed appeals before the worthy Full Bench NIRC at Islamabad and vide consolidated judgment dated 29.10.2020, the worthy Full Bench NIRC at Islamabad accepted the appeals and set aside the judgment/order dated 20.02.2020 of worthy Single Bench of NIRC at Peshawar with direction to the petitioners to approach the proper forum as they do not fall within the definition of a workman, as provided under the IRA, 2012 vide judgment/order dated 29.10.2020; hence, the instant petitions.

4.Arguments heard and record perused.

5.In essence, it is the case of the petitioners, who were employees of the respondents, that in view of the nature of their duties, they were workmen, whose services were terminated by the employers/respondents without conducting proper inquiry, which action of the Respondents offends Standing Order-12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (“Ordinance of 1968”).

6.Admittedly, the services of the present petitioners were terminated without conducting proper inquiry, however, the essential question for adjudication before both the lower fora was the status of the petitioners being worker/workmen as defined under Ordinance of 1968 in order to attract the protection of their rights guaranteed through Ordinance of

1968. The findings of both the fora below are at variance regarding the status of the petitioners, the worthy Single Bench of NIRC in its finding has held that the petitioners fall within the definition of ‘workmen’ whereas the said findings were reversed by the learned Full Bench of NIRC through the impugned order.

7.Relevant to the present controversy, we have two legislations providing the definitions of a workman, one is curial law which provide a forum for redressal of grievance of a workman. (Industrial Relation Act 2012) and the second the Ordinance of 1968 which protect and guarantees certain rights of the workman while working in an establishment. However, the legislator has obviously given the definition of workman/labour distinctly in booth pieces of legislations. In order to appreciate the concept of ‘worker’ and ‘workman’ and other concepts occurring in the two Statutes, we would refer to the relevant provisions of the both the Statutes:- Industrial Relations Act, 2012 West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,

2 (ix). “employer” in relation to an 2 (c). “employer” means the owner establishment, means any person of an industrial or commercial or body of person, whether establishment to which this incorporated or not, who or which Ordinance for the time being employs workmen in the applies, and includes- establishment under a contract of (i) In a factory, any person named employment and includes- under clause (e) of sub-section (a) An heir, successor or assign, (1) of section 9 of the as the case may be, of such Factories Act, 1934 (XXV of person or body as aforesaid; 1934), as manager of the (b) Any person responsible for the factory;

management and control of (ii) in any industrial establishment the establishment; under the control of any

(c)In relation to an establishment department of the [Federal] or run by or under the authority any Provincial Government, of any department of the the authority appointed by Federal Government, the such Government in this

authority appointed in this behalf, or where no such behalf or, where no authority authority is so appointed, the is so appointed, the Head of head of the department; the department; (iii) in any other industrial or (d) In relation to an establishment commercial establishment, any run by or on behalf of a local person responsible to the authority, the officer owner for the supervision and appointed in this behalf, or control of such establishment. where no officer is so appointed, the chief executive officer of that authority;

Explanation.- For the purpose of distinction from the category of “workers” or “workmen”, officers and employees of a department of the Federal Government who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of “employees”; and

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

2 (xxxiii) “worker” and 2 (i). “workman” means any “workman” mean person not person employed in any industrial falling within the definition of or commercial establishment to do employer who is employed any skilled or unskilled, manual or (including employment as a electrical [work] for hire or supervisor or as an apprentice) in reward. an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this Act 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 managerial or administrative capacity.

33.Redress of individual 12. Termination of employment. – grievances.- (1) A worker may (1) For terminating bring his grievance in respect of employment of a permanent

any right guaranteed or secured to workman, for any reason other him by or under any law or any than misconduct, one month’s award or settlement for the time notice shall be given either by the being in force to the notice of his employer or the workman. One employer in wring, either himself month’s wages calculated on the or through his shop steward or basis of average earned by the collective bargaining agent within workman during the last three ninety days of the day on which the months shall be paid in lieu of cause of such grievance arises. notice.

(2)Where a worker himself (2) No temporary workman, brings his grievance to the notice whether monthly-rated, weekly- of the employer, the employer rated, daily-rated or piece-rated, shall, within fifteen days of the and no probationer or badli, shall grievance being brought to his be entitled to any notice if his notice, communicate his decision services are terminated by the in writing to the worker. employer, nor shall any such workman be required to give any

(3)Where a worker beings his notice or pay any wages in lieu grievance to the notice of his thereof to the employer if he leaves employer through his shop steward employment of his won accord. or collective bargaining agent, the employer shall, within seven days (3) The services of a workman of the grievance being brought to shall not be terminated, nor shall a his notice, communicate his workman be removed, retrenched, decision in writing to the shop discharged or dismissed from steward or as the case may be the service, except by an order in collective bargaining agent. writing which, shall explicitly state the reason for the action taken. In

(4)If the employer fails to case a workman is aggrieved by communicate a decision within the the termination of his services or period specified in sub-section (2) removal, retrenchment, discharge or, as the case may be sub-section or dismissal, he may [take action (3), or if the worker is dissatisfied in accordance with the provisions with such decision the worker or of] Section 25-A of the Industrial the shop steward may take the Relations Ordinance, 1969 (XXIII matter to his collective bargaining of 1969) and thereupon the agent or to the Commission or, as provisions of the said section shall the case may be, the collective apply as they apply to the redress bargaining agent may take the of an individual grievance. matter to the Commission, and where the matter is taken to the (4) Where the services of any Commission, it shall give a workman are terminated, the decision within seven days from the wages earned by him and other date of the matter being brought dues, including payment for before it as if such matter were an unavailed leave as defined in industrial dispute: Clause (1) of Standing Order 8 Provided that a worker who shall be paid before the expiry of desires to so take the matter to the the second working day from the Commission shall do so within a day on which his services are period of sixty days from the date terminated.

of the communication of the employer or, as the case may be, (5) The services of a from the expiry of the period permanent or temporary workman mentioned in sub-section (2), or shall not be terminated on the sub-section (3), as the case may be. ground of misconduct otherwise than in the manner prescribed in

(5)In adjudicating and Standing Order 15.

determining a grievance under sub-section (4), the Commission (6) Where a workman resigns shall go into all the facts of the from service or his services are

case and pass such orders as may terminated by the employer, for be just and proper in the any reason other than misconduct, circumstances of the case. he shall, in addition to any other benefit to which he may be entitled

(6)If a decision under sub- under this Ordinance or in section (4) or an order under sub- accordance with the terms of his section (5) given by the employment or any custom, usage Commission or a decision in an or any settlement or an award of a appeal against such a decision or Labour Court under the Industrial order is not given effect to or Relations Ordinance, 1969 (XXIII complied with within seven days or of 1969), be paid gratuity within the period specified in such equivalent to [thirty days], wages, order or decision, the defaulter calculated on the basis of the shall be punishable with [wages admissible to him in the imprisonment for a term which last month of service if he is a may extend to one year, or with fixed-rated workman or the highest fine which may extend to seventy- pay drawn by him during the last five thousand rupees, or with both. twelve months if he is a piece-rate workman], for every completed

(7)No person shall be year of service or any part thereof prosecuted under sub-section (6) in excess of six months: except on a complaint in writing— Provided that, where the (a) by the workman if the order employer has established a of decision in his favour is not provident fund to which the implemented within the period workman is a contributor and the specified therein; or contribution of the employer to (b) by the Commission if an which is not less than the order or decision thereof is contribution made by the workman, not complied with. no such gratuity shall be payable for the period during which such

(8)For the purposes of this provident fund has been in section, workers having common existence:

grievance arising out of a common Provided further that if cause of action may make a joint through collective bargaining the application to the Commission. employer offers and contributes to an “Approved Pension Fund” as

(9)Any collective bargaining defined in the Income Tax agent or any employer may apply Ordinance, 2001 (XLIX of 2001), to the Commission for the and where the contribution of the enforcement of any right employer is not less than fifty per guaranteed or secured to it or him cent of the limit prescribed in the by or under any law or any award aforesaid Ordinance, and to which or settlement. the workman is also a contributor for the remaining fifty per cent or

(10)There shall be a Tripartite less, no gratuity shall be payable Council for review of grievances of for the period during which such workers in the Islamabad Capital contributions has been made. Territory comprising not less than three members each of the (7) A workman shall be entitled workers, employers and the to receive the amount standing to Government: his credit in the provident fund, Provided that the including the contributions of the representatives of the workers and employer to such fund, even if he the employers shall be nominated resigns or is dismissed from by the Government after service.

consultation with registered trade unions and employers’ (8) Where a workman dies organizations to be notified in the while in service of the employer, Official Gazette. his dependent shall be paid gratuity in accordance with the provisions of clause (6):

Provided that no payment of gratuity in such case shall be made otherwise than by a deposit with the Commissioner, who shall proceed with the allocation of the deposit to the dependent of the deceased in accordance with the provisions of section 8 of the Workmen’s Compensation Act, 1923 (VIII of 1923).

(9)If the employer fails to deposit the amount of the gratuity under clause (8) the dependant of the deceased may make an application to the Commissioner for the recovery of the amount thereof.

8.The close perusal of the aforesaid two definitions would show that there is visible distinction between definition given under the Industrial Relations Act, 2012 (“Act, 2012”) viz-a-viz West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (“Ordinance, 1968”). Since in the instant case, the petitioners had filed grievance petition before the learned Single Bench of NIRC in terms of Section 33 of the Act, 2012 claiming breach of Standing Order 12(3) of the Ordinance, 1968, therefore, they have to qualify and should fall within the definition as provided in Section 2(1) of the Ordinance, 1968 which, inter alia, includes that an employee of an establishment/industry would not be a workman if he does not perform any skilled or unskilled manual or clerical work. In reference to Section 2(1) of the Ordinance, 1968, the Hon’ble Division Bench of Sindh High Court in the Rehmat Ali vs. The Security Papers Ltd and another (PLD 1982 Karachi 913) has very elaborately

and aptly laid down the essential criteria that what include a manual work in the following terms:- “7. (a) We are inclined to hold that the words “any manual” and “work” employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and, therefore, they will cover a person, who performs any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs to a labour class. In our view the question, whether a person predominantly performs a manual work or that manual work is incidental to his man work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2 (xxxviii) of the I.R.O., the managerial staff or the person who supervises the work of others and draws monthly salary of Rs. 8000 are excluded from the ambit of the definition of worker and workman given in the above provision. It may be observed that when a Court is to determine whether a person falls within the category of a managerial staff or within the category of worker or workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominantly performs manual work or predominantly performs managerial work. Similarly if a person falls in the class of Executives like a General Manager or an Executive in a Company, in that even the mere fact that such a person uses his hands, which takes a fraction of the time of his working hours, will not make him a worker or workman within the ambit of either section 2(i) of the Ordinance or section 2(xxxviii) of the I.R.O. However, where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of time as compared to the hours of duties. We cannot be unmindful of the fact that the Labour laws are beneficial laws provided for the labour class with the object to provide inexpensive and expeditious remedy before a Labour Court and, therefore, the Ordinance being a beneficial enactment is to be construed liberally in favour of the labour class and no restriction can be placed to the scope of the definition of workman, given in section 2(i) of the Ordinance”.

9.Similarly, the Apex Court in the case of General Manager, Hotel Intercontinental, Lahore, and another vs.

Bashir A. Malik and others (PLD 1986 SC 103) has laid

down the following test in order to determine, whether an employee is a workman within the meaning of various statutes in the field of Labour Legislation:-

“11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the filed of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and no his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted”.

10.In the present case, the present petitioners have placed on file certain documents exhibited as PW.1/X-1 envisaging the scope of duties of their functions which were elaborately highlighted by the learned Full Bench of NIRC in its impugned judgment dated 29.10.2020 in the following terms:-

“The respondents were also educating the formers of tobacco grower how to increase crops size, accurate crops assessment ensure internal clarification, ensure 100 percent NPK applications. Further, the duties of the respondents were demonstration for proper use of NPK which is an essential fertilizer for tobacco crop, demonstration of pesticide application on tobacco crop in proper doze, demonstration of suckering and topping of tobacco plants which is required for obtaining healthy leaves from tobacco plant, preparation of crop assessment report, demonstration of application of folia fertilizer. These duties of the respondents were not a workman as they have to apply their mind independently to educate the former of tobacco crops. Therefore, the duties performed by them were not a workman but of an officer in the appellant organization. The duties and functions performed by the respondents involved

due thought process and decision making initiative as they were providing guidance to the formers to implement the company recommendations in the field. This indicate their duties were not of workman but of Field Officer/Leaf Officer . Further, the charges against them were approved and they were given proper opportunity to defend themselves before the disciplinary committee by fully participating before the inquiry committee”.

11.The law in relation to the status of a ‘workman’ relating to his rights guaranteed under the Ordinance of 1868 is by now settled. Indeed, a workman is that employee of an establishment/industry, who performed a work involving physical exertion which is more or less distinct from intellectual or the one involving decision tacking at higher or lower level. The apex Court in the case of Pakistan Tobacco Company Ltd vs. Pakistan Tobacco Company, Employees’ Union Dacca and others (PLD 1961 Supreme Court 403) while dilating upon the meaning of a ‘workman’ under a Statute similar to the Ordinance, 1968 has held that a person, who is engaged exclusively in the field of distribution through proper agency of the products of the company and not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesman is in a wholly different category from manual work or clerical work.

Salesman do not therefore fall within the definition of “workmen”.

In the case of Chairman, Brooke Bond

(Pakistan) Ltd, Karachi vs. General Secretary, Union

Karkunane Brook Bond (Pakistan) Ltd Rawalpindi (PLD 1969 Lahore 717), the Hon’ble Lahore High Court while dealing with the similar matter has held that:- “On the merits the learned Representative for the appellant has criticised before us the finding by the Industrial Court below to the effect that the salesmen working in this company are workmen within the meanings of the Ordinance. A ‘workman’ is defined in section 2(n) of the Ordinance as under:- “Workman means any person including an apprentices employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes.........................................................

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”.

12.A similar view was also re-affirmed by the Hon’ble Karachi High Court in the case of I.E. Saleh vs.

Messrs International Laboratories Ltd, Karachi and 2 others (PLD 1975 Karachi 279) holding that:- “It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing the inferior work which is normally called manual or clerical work. He may be doing some manual or

clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of a specialised nature designed to achieve the end of promoting sales, entering in competitive field with other producers and finding best available markets. Such type of labour cannot be called manual or clerical”.

13.The apex Court in the case of General Manager, Hotel Intercontinental, Lahore and another vs. Bashir A.

Malik and others (PLD 1986 Supreme Court 103), has very comprehensively dealt with the matter in paragraphs- 8 & 11.

The relevant portion reads as under:- “The question whether an employee is a supervisor or is exercising directional and controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of a industry was to be a workman except those mentioned in the definition of “employer” then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of “workman”, namely, “skilled or unskilled, manual or clerical labour” need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are not doing any such work, would be out of the scope of the term “workman” without having to resort to the exceptions.

11.The test for determining the question whether an employee is a workman within the meaning of various statues in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusion. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted”.

Similar view is also reflected in the judgment of the Apex Court in the case of Wisram Das vs. SGS Pakistan (Pvt) Ltd and another (2010 SCMR 1234).

14.The survey of the case-law, referred above, would show that; if an employee of an establishment, performs a simple manual or clerical work which requires physical exertion and that work does not require imagination, observation, rational approach, application of mind and specialized knowledge or evaluating and supervising a work falls within the definition of worker, however, if the scope of his duties is such which requires imagination, observation, rational approach, application of mind and specialized knowledge or evaluating the performance of certain categories of employees or other persons, would not fall within the definition of a workman.

15.The said factual aspect of the findings relating to the scope of their duties have neither been challenged through this petition nor this Court has any jurisdiction to substitute the said findings in view of the law laid down by the Apex Court in the case of Abdul Razzaq vs. Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505).

16.The perusal of scope of duties of the present petitioners stated in the preceding paragraph No 10 clearly envisages that their scope of duties were not manual but they had the opportunity to apply their independent mind while performing their duties, therefore, the question of fact

determined by the learned Appeal forum, which is otherwise supported by record is not open to any exception.

17.Resultantly, we find no merit in these petitions, which are accordingly dismissed.

ANNOUNCED.

Dated: 08.06.2021 JUDGE

JUDGE

Nawab Shah CS (DB) Justice Lal Jan Khattak & Justice Syed Arshad Ali