1993 S C M R 672

[Supreme Court of Pakistan]

Present: Ajmal Mian and Muhammad Afzal Lone, JJ
NATIONAL BANK OF PAKISTAN---Appellant
versus
PUNJAB LABOUR COURT N0.5, FAISALABAD
and 2 others---Respondents
Civil Appeal No. 1262 of 1990, decided on 23rd January, 1993.
(On appeal from the judgment dated 9-6-1990 of the Lahore High Court, Lahore, passed in Writ
Petition No.1253-S of 1983).
(a) Constitution of Pakistan (1973)---
----Art.185(3)---Leave to appeal was granted in the case for the reason that) leave had been
granted in two similar petitions.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance
(VI of 1968)- -
----S.1(1), proviso (i)---National Bank of Pakistan (Staff) Service Rules, 1973--National Bank of
Pakistan though a corporate body but is a commercial establishment carried on under the
authority of Federal Government--Provisions of West Pakistan Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968 were not available to employee of National
Bank of Pakistan who was governed by the National Bank of Pakistan (Staff) Service Rules,
1973 which had statutory force.
National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others 1992 PLC 415 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance (VI of 1968), S.1(1), proviso 1---National Bank of Pakistan (Staff) Service Rules,
1973---Fact that provisions of West Pakistan Industrial and Commercial Employment (Standing
Orders) Ordinance, 1968 were not available to employee of National Bank of Pakistan would not
necessarily lead to the conclusion that he was not entitled to invoke S.25-A, Industrial Relations
Ordinance, 1969.
(d) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.51, 55, 38-A, 38-D, 38-C & preamble---Wage Commission ---Award--Provisions of
Industrial Relations Ordinance, 1969 applicable to Wage Commission Award including the
provisions of Ss.51 & 55 so far as may be and with the necessary modification shall apply to the
decision of the Wage Commission.
Section 38-A, Industrial Relations Ordinance, 1969 contemplates constitution of a Wage
Commission by the Federal Government for fixing the rates of wages and for determining all the
other terms and conditions of service in accordance with the provisions of the I.R.O. in respect of
workers of a bank or such other workers as the Federal Government may by notification in the
official gazette specify. Whereas section 38-D lays down that a decision of Wage Commission to
be, under section 38=C shall be deemed to be an award of the Full Bench of the Commission and
the provisions of Ordinance XXIII of 1969 applicable to such award including the provisions of
sections 51 and 55, as far as may and with the necessary modification, shall apply to the decision
of the Wage Commission.
(e) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A, 2(ii), (xxviii) & 38-D---National Bank of Pakistan (Staff) Service Rules,
1973---Wage Commission award---"Award" given under S.38-D, notwithstanding its definition
given in S.2(ii) is covered by the word "award" employed in S.25-A of the
Ordinance---Employee of National Bank of Pakistan thus was entitled to invoke S.25-A,
provided that he could have demonstrated that he was a workman within the definition of
"workman" given in S.2(xxviii) of the Ordinance and his right guaranteed or secured by or under
any law or any award or settlement, was infringed.
Iftikhar Ahmad and other v. President, National Bank of Pakistan and others PLD 1988 SC 53
ref.
(f) Industrial Relations Ordinance (XXIII of 1969)---
----S.2(xxviii)---National Bank of Pakistan (Staff) Service Rules,. 1973--"Worker" and
"workman"---Meaning elaborated.---[Words and phrases].
A "worker" means any person not falling within the definition of employer who is employed
(including employment as a supervisor or as an apprentice) in an establishment or industry for
hire or reward either directly or through a contractor whether the terms of employment are
express or implied, but it does not include any person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who being employed in a supervisory capacity draws wages exceeding Rs.800 per mensem or
performs, either because of the nature of duties attached to the office of by reason of the powers
vested in him, functions mainly of managerial nature.
Above clause (a) deals with the persons who are mainly employed in a managerial or
administrative capacity irrespective of their salary; whereas, clause (b) caters for two categories
of employees, namely:
(i) Persons who are employed in a supervisory capacity and who draw wages exceeding
Rs.800 per mensem; or (ii) persons who perform either because of the nature of duties attached
to the office or by reasons of the powers vested in them, functions of managerial nature.
An officer of Grade ZI in the National Bank of Pakistan if he was employed at the
relevant time in a supervisory capacity not necessarily mainly m a managerial or administrative
capacity, would fall within the first category of clause (b) referred to hereinabove provided he
was drawing wages exceeding Rs.800.
(g) Industrial Relations Ordinance (XXIII of 1969)---
----S.2 (xxviii)---Worker or workman---Definition---Person who approaches a Court on the basis
of averment that he is a "workman" within the definition of S.2(xxviii) of the Ordinance the
burden of proof lies on him and not on the employer.
(h) Industrial Relations Ordinance (XXIII of 1969)---
----S.2(xxviii)---"Workman"---Question whether a person is a workman within the purview of
S.2(xxviii) can be determined not on the basis of the designation of his post, but on the basis of
the duties which he was performing.
Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 172, Ganga R. Madhani v.
Standard Bank Ltd. and others 1985 SCMR 1511: Salahuddin Hasood v. Pakistan and 3 others
(Civil Petition for Special Leave to Appeal No.K-89 of 1975); National Bank of Pakistan v.
Punjab Labour Court No.7, Gujranwala and others 1992 SCMR 1891; Dost Muhammad Cotton
Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; Abdul Razzaq v. Messrs
Ihsan Sons Limited and 2 others 1992 PLC 424 and General Manager, Hotel Intercontinental,
Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 ref.
Kh. Muhammad Farooq, Advocate Supreme Court (absent) with Tanvir Ahmad,
Advocate-on-Record for Appellant.
Nemo for Respondents Nos.l and 2.
Zaman Qureshi, Advocate Supreme Court instructed by S. AbulAasim Jaferi,
Advocate-on-Record for Respondent No.3. 1:
Date of hearing: 5th December, 1992.
JUDGMENT
AJMAL MIAN, J: --This is en appeal with the leave of the Court against the judgment dated
9-6-1990 passed by a learned Single. Judge of the Lahore High Court in Writ Petition No.1253-S
of 1983, filed by the appellant against the judgment dated 15-3-1983 of the Punjab Labour
Appellate Tribunal, Lahore, hereinafter referred to as the Tribunal, whereby it set aside the order
dated 9-8-1981 of the Presiding Officer, Punjab Labour Court No.5, Faisalabad, hereinafter
referred to as the Labour Court, dismissing respondent No.3's petition under section 25-A of the
Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., and ordering
reinstatement of respondent No.3 without back benefits, dismissing the same and maintaining the
Tribunal's judgment. Leave to appeal was granted for the reason that leave A was already granted
in two similar petitions, viz. C.P.LA. No.1716/L of 1990 and C.P.LA. No.900 of 1988.
2. The brief facts are that while respondent No.3 was working as Grade-11 Officer in the
appellant-bank, he was charge-sheeted on 18-1-1979 for allegedly misappropriating gold
ornaments of one Munshi Khan son of Babu, which were received under gold loan No.78 dated
4-3-1978. One Muzaffar Ali Qureshi was appointed as the Enquiry Officer, who after holding
enquiry and hearing the parties, held that the charge of embezzlement of gold had been
established against respondent No.3, Ex-Manager, Pandoke Branch, through his report dated
5-10-1980. Pursuant to the above finding of the Enquiry Officer, respondent No. 3 was dismissed
from service by an order dated 24-1-1981. After serving a notice under section 25-A of the
I.R.O., respondent No.3 filed a petition under the above provision, which was resisted by the
appellant inter alia on the following grounds .
"2. At the relevant time, the petitioner was employed as Manager of the Pandoke Branch. He
was performing managerial and administrative as well as supervisory duties and his pay was
more than Rs.800 p.m. As such, he fell within the definition of employer and was not a
workman. His case is governed by the law of master and servant and the instant application
under section 25-A is not maintainable. This learned Court has also no jurisdiction to entertain
the application.
Without prejudice to the above, the West Pakistan Industrial and Commercial Employment
(Standing Orders) Ordinance, 1968 is not applicable to the employees of the National Bank of
Pakistan who are governed by the Statutory Staff Service Rules of the Bank. In view of the
provisions of clause (xxviii) of section 2 of the I.R.O., the petitioner has no locus standi to file
the present application under section 25-A and the provisions of this section are not attracted to
his case."
3. The Learned Labour Court, after recording evidence and hearing the parties, by its aforesaid
order dated 9-8-1981, dismissed respondent No.3's above petition by holding that the charge was
proved against him and the notice of his dismissal was justified.
4. Against the above order, respondent No.3 filed Appeal No.SG519/81-Punjab, which was
allowed by the Tribunal through its judgment dated 15-3-1983, and it was held that the enquiry
was not properly conducted, as the customer Munshi Khan was not examined in support of the
charge. On the question, whether respondent No.3 was "workman" within the purview of clause
(xxviii) of section 2 of the I.R.O., the following finding was recorded:
"4. It has been argued by the learned counsel for the respondent that since the appellant
admitted before the enquiry officer that as Manager his service was four years, he is not a
workman. This is true that the appellant said that his service as Manager was four years, but he
did not say that he was Manager during the period of enquiry. The designation at one time of
dismissal is relevant. The appellant before the learned lower Court stated that he was not a
Manager at the time of his dismissal. He was IInd Officer but there is no evidence that he was
working in supervisory capacity. He did say that his wages were Rs.1,150 but break-up was not
enquired, so it does not appear if his pay including those allowances which form part of pay
exceeded Rs.800. For the application of clause (b) of section 2(xxviii) of the Industrial Relations
Ordinance, 1969, presence of two conditions i.e. pay should be more than Rs.800 and main
duties in supervisory capacity, are necessary. So the appellant was a workman."
5. After that, the appellant filed the above writ petition, which was dismissed and it was held that
respondent No.3 was a workman though he was. a Grade-I1 Officer, as the appellant had failed
to place any evidence on record as to the duties of respondent No.3. Reliance was placed on the
judgment of this Court in the case of Allied Bank of Pakistan Ltd. v. Muhammad Humayun
Khan and others (1988 SCMR 1664). Thereupon, the appellant filed a petition for leave to
appeal, which was granted for the above reason.
6. We have heard Mr. Tanvir Ahmad, learned A.O.R. for the appellant, and Mr. Zaman Qureshi,
learned A.S.C. for respondent No.3. It seems that on 18-1-1979 when respondent No.3 was
charge-sheeted, National Bank of Pakistan (Staff) Service Rules, 1973, hereinafter referred to as
the Rules of 1973, which have been held by this Court having statutory force in the case of
National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others (1992 PLC 415)
were holding the ground and not the Rules of 1980, which have been held in the above case not
to have statutory force for want of approval of the Federal Government. In this view of the
matter, the provisions of the West Pakistan Industrial and Commercial Employment (Standing
Orders) Ordinance, 1968, hereinafter referred to as the Standing Orders Ordinance, were not
available to respondent No.3 in view of proviso 1 to subsection (1) of section 1 thereof, which
lays down that "Provided that nothing in this Ordinance shall apply to industrial and commercial
establishments carried on by or under the authority of the Federal or any Provincial Government,
where statutory rules of service, conduct or discipline are applicable to the workmen employed
therein".
7. However it was contended by Mr. Zaman Qureshi, learned counsel for respondent No.3, that
in order to press into service the above proviso, there are two requirements, namely:
(i) That industrial and commercial establishments should be carried on by or under the
authority of the Federal or any Provincial Government; and
(ii) That there should be statutory rules of service, conduct or discipline applicable to the
workmen employed therein.
According to him, though Rules of 1973 were statutory rules, but the above first requirement is
wanting in the present case, as National Bank of Pakistan cannot be said to be an industrial or
commercial establishment carried on by or under the authority of the Federal or any Provincial
Government.
8. We are unable to subscribe to the above submission as though the National Bank of
Pakistan is a corporate body, but it is a commercial establishment carried on under the authority
of the Federal Government. The Federal Government provided all the finances to the National
Bank of Pakistan. It has been incorporated under the National Bank of Pakistan Ordinance, 1949.
9. This leads us to the question, whether respondent No.3 could have pressed into service the
provisions of section 25-A of the I.R.O. We may observe that simpliciter the factum that the
provisions of the Standing Orders Ordinance were not available to respondent No.3, would not
necessarily lead to the conclusion that he was not entitled to invoke above section 25-A of the
I.R.O. Section 25-A entitles a workman within the definition of clause (xxviii) of section 2 of the
I.R.O. to bring a 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. Mr. Zaman Qureshi, learned counsel
for respondent No.3, has submitted that even if it is to be held that the provisions of the Standing
Orders Ordinance were not available to respondent No.3, he was entitled to invoke above section
25-A of the I.R.O., as he was enforcing the award given by the Wage Commission under the
provisions of sections 38-A to 38-H of the I.R.O. It will suffice to observe that section 38-A
contemplates constitution of a Wage Commission by the Federal Government for fixing the rates
of wages and for determining all the other terms and conditions of service in accordance with the
provisions of the I.R.O. in respect E of workers of a bank or such other workers as the Federal
Government may by notification in the official Gazette specify. Whereas, section 38-D lays
down that a decision of Wage Commission to be under section 38-C shall be deemed to be an
award of the Full Bench of the Commission and the provisions of this Ordinance applicable to
such award including the provisions of sections 51 and 55 so far as may and with the necessary
modification, shall apply to the decision of the Wage Commission.
10. The question, whether an award given under the above provisions of the I.R.O. can be treated
an award for the purpose of section 25-A of I.R.O. has been finally resolved by a recent
judgment of this Court in the case of Iftikhar Ahmad and others v. President, National Bank of
Pakistan and others (PLD 1988 SC 53), in which it has been held that notwithstanding the
definition of the term "award" given in section 2(ii) of the I.R.O., the award given under section
38-D is covered by the word "award" employed in section 25-A of the I.R.O. It must, therefore,
follow that respondent No.3 was entitled to invoke section 25-A, provided that (i) he could have
demonstrated IF that he was a workman within the definition of "workman" given in section
2(xxviii) of the I.R.O. and (ii) his right guaranteed or secured by or under any law or any award
or settlement, was .infringed. According to Mr. man Qureshi, learned counsel for respondent
No.3, the dismissal of respondent No.3 involved infringement of the right guaranteed by the
Wage Commission Award. However, this point has not been dilated upon by any of the forums
below. The case apparently proceeded on the assumption that the provisions of the Standing
Orders Ordinance were available to respondent, No.3. Nor the question, whether the Wage
Commission's Award was applicable to respondent No.3, has been touched upon by any of the
Courts below.
11. This leads us to the question, whether respondent No.3 was a workman within the definition
provided for under clause (xxviii) of section 2 of the I.R.O. The Labour Court has not examined
the above question, whereas the Tribunal, on the basis of the statement of respondent No.3, held
that he was a workman. The same view found favour with the learned Judge in chamber on the
basis of the judgment of this Court in Allied Bank's case (supra). At this juncture, it may be
pertinent to reproduce the definitions of `worker' and `workman' given in above clause (xxviii) of
section 2 of the I.R.O., which-read as follows:-
"(xxviii) `worker' and `workman' means any person not falling within the definition of employer
who is employed (including employment as a supervisor or as an apprentice) in an establishment
or industry for hire or reward either directly or through a contractor whether the terms of
employment be express or implied, and for the purpose of any proceeding under this Ordinance
in relaxation 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--
(a) Who is employed mainly in a managerial or administrative capacity, or
(b) Who, being employed in a supervisory capacity draws wages exceeding rupees eight
hundred per mensem or performs, either because of the nature of duties attached to the office or
by reason of the powers vested in him, functions mainly of managerial nature."
A plain reading of the above clause indicates that a "worker" means any person not falling within
the definition of employer who is employed (including employment as a supervisor or as an
apprentice) in an establishment or industry for hire or reward either directly or through a
contractor whether the terms of employment are express or implied, but it does not include any
person--
(a) Who is employed mainly in a managerial or administrative capacity, or
(b)Who, being employed in a supervisory capacity draws wages exceeding Rs.800 per mensem
or performs, either because of the nature of . duties attached to the office or by reason of the
powers vested in him, functions mainly of managerial nature. .
It may be pointed out that above clause (a) deals with the persons who are mainly employed in a
managerial or administrative capacity irrespective of their salary; whereas, clause (b) caters for
two categories of employees, namely:
(i) Persons who are employed in a supervisory capacity and who draw wages exceeding
Rs.800 per mensem; or
(ii) Persons who perform either because of the nature of duties attached to the office or by
reason of the powers vested in them, functions of managerial nature.
Admittedly, respondent No.3 was drawing, according to his own showing, salary of Rs.1,150 per
month. He was an officer of Grade II and, therefore, if he was employed at the relevant time in a
supervisory capacity not necessarily mainly in a managerial or administrative capacity, he would
fall within the first category of clause (b) referred to hereinabove. It is a well settled proposition
of law that a person who approaches a Court on the basis of averment that he is a workman
within the definition of clause (xxviii) of section 2 of the I.R.O., the burden of proof lies on him
and not on the employer. In the present case as pointed out hereinabove, the Labour Court has
not examined the above question, but the Tribunal relied upon the statement of respondent No.3
in his examination-in-chief to the effect that "I was Second Officer in the branch when I was
dismissed. I was not Manager at the relevant time. My job was of clerical nature. I was not
entrusted with managerial or supervisory job". The Tribunal was also influenced by the factum
that no cross-examination was directed in this regard. In our view, simpliciter statement of
respondent No.3 that "I was not performing supervisory job", but at the same time, admitting the
factum that he was Grade-II Officer, was not sufficient for discharging the above burden of
proof. The Tribunal as well as the learned Judge in chamber wrongly placed burden of proof on
the appellant by holding that they had failed to produce the evidence to show the duties of
respondent No.3. In our view, it was for respondent No.3 to have stated what were the duties of a
Grade-II Officer. It is also incorrect to conclude that the appellant had not directed any
cross-examination on the above question. In the cross-examination, it was suggested that
respondent No.3 was performing the duties of Manager, which suggestion was denied by him.
12. The parties have referred to the case-law on the subject. Mr. Tanvir Ahmad, learned A.O.R.
appearing for the appellant, has referred to the case of Mufti Mushtaq Ahmed v. The Federation
of Pakistan (PLD 1981 SC 172), the case of Ganga R. Madhani v. Standard Bank Ltd. and others
(1985 SCMR 1511), and an unreported order dated 12-8-1975 of this Court in the case of
Salahuddin Hasood v. Pakistan and 3 others (Civil Petition for Special Leave to Appeal No.K-89
of 1975).
In the above first case, it has been held that for determining the question, whether the persons
concerned fall within the category of "workman" or "civil servant", occupation or duties of such
persons at the relevant time are to be considered. In the above case, it was also held that the
appellant at the relevant time was performing duties primarily of clerical nature in the office of
Station Master (though originally appointed as a Ticket Collector in Railways), he did not fall
within the definition of "workman" and the Service Tribunal was possessed of the jurisdiction
under section 2(2) of the Service Tribunals Ordinance, 1973, read with Civil Servants Act, 1973.
In the above second case, the appellant was working as an Accountant and held power of
attorney on behalf of the bank. It was held that he was not a workman within the definition of
section 2(i) of the West Pakistan Standing Orders Ordinance, as his duties did not involve
manual or clerical work but involved exercise of discretion and taking of important decisions.
In the above unreported case, the petitioner was an Officer of the Habib Bank
Limited and was appointed on a consolidated salary of Rs.700 per month, leading upto a
maximum salary of Rs.1,500 per month in certain Grade. His services were terminated under
clause 6 of Habib Bank Service Rules on the ground that his services were no longer required. At
the time of termination of his services, he was drawing Rs.1,160 per month plus additional
allowance of Rs.249 per month. The petitioner's petition under section 25-A of the I.R.O. was
dismissed on the ground that he was not a workman within the purview of clause (xxviii) of
section 2 of the I.R.O. This Court maintained the above view of the Courts below by observing
that the evidence showed that the petitioner was incharge as Manager of various branches of
Habib Bank Limited and was incidentally writing the account books in his own hand.
13. On the other hand, Mr. Zaman Qureshi, learned counsel for respondent No.3, has referred to
the case of Allied Bank of Pakistan (supra), in which this Court dismissed the appeal of the bank
against the judgments of the Courts below on the ground that there was a concurrent finding on
the question of fact recorded by the Labour Court,. the Appellate Tribunal and the High Court. It
may be advantageous to reproduce the relevant portion of the judgment, which reads as
follows:--
"We find that on the basis of evidence produced by the parties, the Labour Court, the Appellate
Tribunal as well as the High Court have held as a finding of fact that the respondent was a
workman within the meaning of the Ordinance. Since this concurrent finding of fact is routed in
evidence, there is hardly any scope for this Court to interfere in this Constitutional appeal. We
called upon the learned counsel for the appellant whether the Charter of duties and functions of
the respondent in order to prove the nature of duties at the time the impugned action was taken
against him was produced in evidence but the learned counsel frankly stated that no evidence to
that effect was produced at any stage of the case. Since the challenge in this appeal is with regard
to a finding of fact and we, on the other hand, notice that the said finding of fact is established in
evidence, it would not be legitimate for this Court to interfere. The appeal is, therefore,
dismissed. The parties are however left to bear their own costs."
He has also referred to the case of National Bank of Pakistan v. Punjab Labour Court No.7,
Gujranwala and others (1992 SCMR 1891), in which this Court, while dismissing the appeal of
the National Bank of Pakistan, held that the status of the respondent-employee whether he was a
workman within the purview of clause (xxviii) of section 2 of the I.R.O., is to be determined
with reference to the post which he was holding when the alleged misconduct was committed,
and not the post which he was holding at the time of issuing of charge-sheet or dismissal. On the
question of duties, the finding recorded by the Courts below was maintained for the following
reasons:--
"We may add that he was not issued even the power of attorney by the appellant-Bank conferring
on him the authority to perform functions of the Manager on behalf of the Bank. Moreover, as
pointed out by the High Court, it was not established on the record, that the duties performed by
the respondent during the period from 17-6-1978 (when he took over as Manager) till July, 1982
(when he was transferred to Sambarial Branch as Development Officer) showed that the duties
performed by him were the duties which are mainly performed by the Manager. On the other
hand, his main duties continued to be the duties which were mainly of a clerical nature that he
was performing as Officer Grade Ill earlier and which he continued to perform even after he was
asked to act as Manager pending the appointment of a permanent. incumbent to the said post."
He then referred to the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul
Ghani and another (1979 SCMR 304), in which this Court maintained the, judgment of the High
Court, whereby it was held that the respondent, though was performing the duties of Chief
Accountant and drawing monthly salary of Rs.1,050, he was a workman within the definition of
section 2(i) of the Standing Orders Ordinance.
14. We may also refer to a recent judgment of this Court in the case of Abdul Razzaq v. Messrs
Ihsan Sons Limited and 2 others (1992 PLC 424), in which one of us (Ajmal Mian, J.) was a
Member of the Bench, and in which the definitions of "workman" given in section 2(i) of the
Standing Orders Ordinance and section 2(xxviii) of the I.R.O., were considered and compared
with, and the distinction existing between the two definitions were highlighted and the following
test laid down by this Court in the case of General Manager,., Hotel Intercontinental, Lahore and
another v. Bashir A. Malik and others (PLD 1986 SC 103), was adopted:--
11. The test for determining the question whether an employee is a workman within the
meaning of various statutes 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
essential and fundamental consideration for determining the question and not 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 t9 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."
15. The question; whether a person is a workman within the purview of 'clause (xxviii) of section
2 of the 1.R.0., can be determined not on the basis of the designation of his post, but on the basis
of the duties which he was .l performing. In the present case, we have already held that the
burden of proof that respondent No.3 was a workman, was on him, which he failed to discharge.'
16. The upshot of the above discussion is that the appeal is allowed and the judgments of the
Courts below are set aside. Respondent No.3's petition under section 25-A of the I.R.O., shall
stand dismissed. However, there will be no order as to costs.
M.BA./N-327/S Appeal allowed,