LABOUR LAWS

Worker not defined by nomenclature but nature of his duties

and function determined his status

To appreciate the above assertion, we seek guidance from the decision

rendered by the Honorable Supreme Court in the case of National Bank
of Pakistan and others Vs. Anwar Shah and 10 others (2015 SCMR 434)
and held that designation of a person could not be considered to be a
factor determining his status of employment in an establishment to be
that of an officer or a workman. Nature of duties and function of a
person is to be considered to be the factor which would determine
whether his status is that of a “workman” or not, designation per se
was not determinative of a person being a “workman” rather the
nature of his duties and function determined his status.

SINDH High Court

C.P No.D-1885 of 2015

Messrs. CIM Shipping Inc . ……….… Petitioner

Versus

Tausif Ahmed and another ………………Respondents

The affidavit in evidence/deposition of Respondent No.1 clearly depicts

the following factual position:- “15. The applicant has filed his affidavit
in evidence and stated that his petitioner is competent and there exist
relationship of workman an employer between the parties. He has
further stated that he was not employed in the management and
administrative capacity. He further stated that he was performing
clerical and manual work and more than 50 workers are employed in
the Respondent establishment. The witness further stated that he has
not issued any appointment letter prescribing his duties but the
applicant has filed a statement showing the duties performed by his
during the employed with the Respondent.

The detailed and the nature of the duties as per annexure P/1 filed with
affidavit in evidence is as under:- (1) To attend daily employees
attendance cards to mark their late Comings and leaves and
maintaining their entries in the Register along with other relevant
matters. (2) To keep and maintain employees records and their
Personal Files under lock and key and to issue letters to them on
instructions of the Respondent on his behalf. (3) Preparation of voucher
for making payment of employees contribution to the employees Old
Age Benefits Institution and preparation of various other forms for
submission to the EOBI Department and maintenance of employees
EOBI Records. (4) To maintain records of Labour Department,
Directorate of Labours, Shops & Establishment, Government of Sindh.
(5) To collect and note the figures for Income purposes of every
Directors and Their wives relating to their utilities, such as :
Telephones, Electricity, Gas Insurances, Motor Vehicles, Foreign
Travels, Saving Deposits, Sale and Purchase of Properties, Visa Cards,
etc and preparation of statements of their individual accounts. (6) To
represent and submit material facts and information to the Income tax
Practioner and keep maintain regular co-ordination with them. (7) To
meet all enquiries and provide copies of relevant documents as and
when required by the Income Tax Practioner. (8) Attending and
represent Government Departments, Local Bodies and Banks, etc. (9)
To fetch cash and open Bank Accounts from time to time and to obtain
Bank statements personally for Directors and their wives relating to
their local and foreign currency accounts. (10) To handle and maintain
all work manually and clerically related to office as well as Directors
bungalow for Telephones, Electricity, Gas Water Property Taxes, etc.
and maintain their complete files. (11) Maintaining of Shares Stock
Records, attending Stock Exchange and Central Depository Company
(CDC) and 12 to fetch their Activity Reports of their all Shares
Transaction from CDC. To handle correspondence and maintain selling
& purchasing of shares with coordination of their Brokers. (12) To take
Dictations from the Respondent (Chief Executive) and get them typed.
To type letters and on the instructions of Respondent to sign letters,
statements. Challan, etc. on behalf of Chief Executive. (13) To perform
manual and clerical duties personally in connection with the matters
relating to all kinds of utility requirements of the office & Bungalow.
(14) To prepare Text and to book Advertisements in the newspaper
Moorad Shipping News and to collect their Invoices for payments. (15)
To correspond and represent personally for and behalf of the
Respondent (Chief Executive) with the Board of Investment, Customs
Authorities, Chamber of Commerce, Defence Housing Authorities, City
Courts Police Stations, KMC Excise & Taxation, etc. from time to time.”
13. Upon perusal of the above evidence, it is clear that Respondent
No.1 denied the allegations of the PetitionerEstablishment and nothing
could be brought on record to rebut the contention of the Respondent
No 1. Therefore at this juncture we have no option but to believe the
contention of the learned counsel for the Respondent.No1 as the
Petitioner-Establishment did not adduce the evidence despite the fact
that ample opportunity was provided in this regard.

Worker not just defined by hire and fire authority

Bank employee executing duties of a branch manager---Not a workman---Evidence produced by

the petitioner-Bank showed that the respondent-employee was not a workman; that the
respondent was appointed as a bank manager at one of the branches of the petitioner-Bank---
Performance evaluation report of the respondent for the relevant period showed that he was
working as OG-II/bank officer and his work included supervision and guidance; he was being
assessed on the basis of management skills and not on the basis of clerical skills---Respondent
was involved in financial management, people management, processes and controls, customer
focus and operational efficiency---List of duties assigned to the respondent showed his control
of internal working, development of branch deposit, advances, marketing, KB accounts opening
etc.---Simply placing reliance on the respondent not being able to hire or fire or not having a
power of attorney was not sufficient evidence for the purposes of determining the status of a
workman---Respondent did not establish the nature of his work or his duties and his emphasis
remained on what he did not have the authority to do—2024 SCMR 360

Trans-National Company, Jurisdiction?

As per record Petitioners are Trans-Provincial Establishments, therefore, in the light of decision
rendered by the Hon’ble supreme Court of Pakistan in the case of Pakistan Telecommunication
Company Limited Vs. Members of NIRC and others (2014 SCMR 535) and judgment dated
04.08.2014 passed by the Full Bench of this Court in C.P. No. D-3195 of 2010 and other
connected petitions (PLD 7 2014 Sindh 553). We are of the considered view that, NIRC was
competent to decide the issue in hand.

Provincial labour court, jurisdiction of---It is not the nature of the dispute, particularly, unfair
labour practice, which confers jurisdiction on one or the other forum but it is the status of the
employer or the group of employers, which would determine the jurisdiction of the Provincial
labour court and that of the National Industrial Relations Commission ("NIRC")---Once it is
established through any means that the employer or group of employers has an establishment,
group of establishments, industry, having its branches in more than one Provinces, then the
jurisdiction of the NIRC would be exclusive in nature and of overriding and superimposing
effects over the Provincial labour court for resolving industrial disputes, including unfair labor
practices, etc., related to such employers with establishments, branches, or industrial units in
multiple provinces – 2024 SCMR 298

Limitation?
Cause of action accrued to the petitioner in January 2020 whereas the petitioner has filed the
instant petitions on 08.10.2020 (October) which explicitly fall within the doctrine of laches

Workers not their employees but the employees of third party contractors.

Constitutional Petition No. D –4905 of 2020

M/s. Sakina Export International Limited Versus Fayyaz Muhammad and 03 others

This plea is not tenable in the light of judgment rendered by the Hon’ble Supreme Court in the
case of Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181), in
which the workers employed by the third-party contractor were held to be the workers of the
company.

No grievance notices were served upon the company

Casual/ Daily wagers, hence not workers

C.P.No.D-4153 of 2023

M/s Pakistan Beverages Limited Vs. Muhammad Afzal and others

The main thrust of the arguments of M/s Muhammad Ali and Ovais Ali Shah advocates is that
both the forums have failed to appreciate that the private respondents were Casual workers and
not permanent workers and their services were hired on a daily wage basis and they being
temporary workers their services were no longer required and were dispensed with due to
closure of plant for maintenance, which is termination simpliciter without stigma as such the
question of reinstatement of daily wages worker does not arise under the labour law.

Section 12 of the Ordinance 1968 provides that no temporary workmen whether monthly rated,
weekly rated daily rated or piece rated and no probational or badali shall be entitled to any
notice if his services were terminated by the employer, nor shall any such workman be required
to give any notice or pay wages in lieu thereof to the employer if he leaves the employment of
his own accord.

BOP: whereas the private respondents were set free as they failed to prove through cogent
material that they rendered their services for the petitioner company for more than nine
months as required under the law. In the absence of such material, this court cannot help them
out and direct the petitioner company to reinstate their services which were of a temporary
nature.

Verbal Termination

There is no cavil to the proposition that under the Labour Laws, there is no provision permitting
the employer to terminate the services of the worker verbally without a written order. The
Supreme Court in the recent judgment has held that the termination of service by a verbal order
is alien to the labour law.

Unblemished record = lesser punishment –

Impugned Judgment of the High court appeared to be self-contradictory as the High court had
first observed that the appellant had an unblemished past career, spanning over 28 years, and
that her dismissal from service would be a harsh punishment; and yet, the High court found it
appropriate to then observe that the appellant be compulsory retired from service---2024 SCMR
92

Inquiry Held: Negligent but not involved in embezzlement

The main allegation for imposing a major penalty on the Appellant and her subsequent
dismissal from service was that she had been negligent in performing her duties by
disclosing the secret code to her former Bank Manager, namely Shoukat Naeem Warraich,
who defrauded the Bank and misappropriated hefty amounts, in his capacity as the Manager
of the Branch. During the Inquiry Proceedings, the Appellant refuted all the charges levelled
upon her. The Labour Court after examining all of those aspects concluded, through Order
dated 19.06.2010, that there was no direct allegation against her with regard to
embezzlement, preparation of any fabricated instrument, and using the same for her own
benefit. However, the Court opined that she had been negligent and careless in performing
her duty and thus reinstated her without back benefits, in a lower grade i.e. Grade-III rather
than Grade-II. Given the fact that the Labor Court and the Appellate Tribunal found the
Appellant negligent of not properly keeping the secret code but did not see any merit in the
allegations of embezzlement, the imposition of a major penalty of compulsory retirement
from service would definitely be harsh.  Demotion with back benefits – 2024 SCMR 92

Procedure

Employer = more than 10 employees:

1st step: 90 days, from day of cause of action mater to be brought before bringing grievance –
S34

2nd Step: 15 days reply by employer – S34

3rd Step: no reply or reply dissatisfactory, within 60 days, file Grievance Application before
labour court – S34

4th Step: 30 days appeal to tribunal- Sec 47