MESSRS KHAMISANAI & SONS, KARACHI Versus A. G. KAPADIA
ORDER
This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V. Karachi, dated February 24, 1973, where by the learned Labour Court order the re,‑instatement of the Respondent with full back benefits. T tie facts necessary for the disposal of this appeal briefly put are these.
2, Mr. A,G. Kapadia (hereinafter called the Respondent), was appointed on a salary of Rs. 500.00, per month as an Accountant. Respondent's services were terminated when he failed to furnish a fresh Guarantee. The Guarantor, who had stood surely for him had withdrawn. TI‑e Management, therefore, was obliged to terminate his services from Ist July 1972. The case of the appellant was that Mr. K4padia was not a workman within the meaning of the definition of section 2(xxviii) of the Industrial Relations Ordinance 1969 (hereinafter called the Ordinance). In this connection, the appellant also relied on two orders of the civil Courts passed on an application of the respondent under Order XXXIX, rule 1, C. P. C. In these two decisions, the civil Courts had held that the respondent was riot a workman.
3. The learned Labour Court cam, to the conclusion that the respondent was a workman and, therefore, ordered his re‑instatement with full back benefits.
Mr. S.A. Sarwani, the learned Representative for the Appellant, in the first place contended that the learned Labour Court rid not apply its mind to the law applicable at the time when the cause of action arose to the respondent. It is submitted by Mr. Sarw.ini that the learned Labour Court quoted the definition of 'workman' as it stood after its amendment in February, 1973. The correct position in law is that the learned Labour Court should have relied on the definition of 'workman' as it stood at the time when the cause of action arose or when the respondent made his application under section 25‑A of the Ordinance, i.e. on 26th September 1972.
5. The definition of 'workman' as it stood in September 1972 is as under:
"Worker" and workman" mean 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 expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute include 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.‑
(Explanation.‑'Supervisor' means a worker immediately above the lowest level of workers in an establishment or Industry who has supervisory duties but no power to engage or remove, or take , any other disciplinary action against another worker by his own authority)."
6. The learned Labour Court, while considering the question as to whether the Respondent was a workman or not, made the following observation:
"There is no evidence that he managed any affairs or had power to appoint or dismiss any person. The only duty assigned to him was to keep Accounts, which he does with his own hand as such nature of his duty is mostly clerical. It has also been shown that the applicant ‑used to receive letters and indulge in the correspondence with the public.
The respondent has however produced some applications of some candidates showing the initials of the applicant, but there 1 nothing to prove that the applicant had appointed any of them or t issued any appointment letters."
7. On these conclusions, the learned Labour Court held that the respondent was a workman.
8. Before I examine the evidence ordered by the appellant, I will observe that it is a question of fact depending upon the circumstances and evidence of each case as to whether a person is a workman or nor. The respondent filed his own affidavit in support his content on that he was a workman. On the other hand, on the behalf of the appellants, affidavit of Mr. Aboobaker, woo ii tire Reservation Manager of the Company, and that of Mr. A. Jabbar Khamisani, who is a Partner in the appellant Firm, were filed. Mr. Kapadia, in Paragraph 2, or his affidavit stated that ha Alas appointed as art Accountant by the respondent (appellants before me), on. 3 salary of Rs, 500 per. mensem and has no supervising or managerial powers. Mr. Kapadia also produced the appointment at Letter. Mr. Kapadia has filed no documentary proof to establish the ha was a were supervisory within the meaning of the definition of 'workman' with no powers to appoint on the other hand, Mr. Aboobaker, stated that the Firm is managed and controlled by four Departmental Heads. The Department of Administration is in charge of one Mr. Mohammad Zaheer Barath, the Department of Reservation is under Mr. Aboobaker, the Department of Cargo is under charge of Mr. Ghulam Hussain and that of Accounts under Mr. Kapadia, the respondent before me. Mr. Aboobaker stated that all the four officers are entirely responsible for the control and Management of their respective Departmental of the Fire Only these four officers can sign or approve expense vouchers of employees of the Firm and have powers to take disciplinary action. Mr. Aboobaker had been cross‑examined at some length. There is nothing in the cross -examination of Mr. Aboobaker to disclose that Mr. Kapadia was not responsible for control and the Management of the Firm, in respect of his own Department. Mr. A. Jabber Kharnsani also stated that Mr. Kapadia wag responsible for the Management, supervision arid administration of the affairs of the Firm. He had power to appoint, take disciplinary action and manage the affairs of the Firm. Mr. Khamisani filed as many as 12 documents to establish that Mr. Kapadia exercised the power of appointment and persons outside the Department also believed that Mr. Kapadia had power to appoint. Mr. Khamisani further stated that Conveyance Allowance and Entertainment Allowance eras given by the Firm only to the officers and Managers. Mr. Kapadia, was drawing a consolidated salary of Ra. 730.00 per month at the time when his services were terminated.
9. I would now proceed to examine the documents, which have been produced by the appellant to disclose the nature of duty of the respondent. There is a letter dated 29th October, 1971 This is a letter bar 'All Pakistan Memon Federation, addressed by the respondent personally'. The Federation had sent Mohammad Esmail to Mr. Kapadia for interview for appointment as a clerk. There is another letter by the Consulate General of Italy, Karachi, addressed to Mr. Kapadia to give some job to one Mr. Anis Ahmed. The third letter is an application by one Abdul Ghaffar for putt‑time wok. The following endorsement in the handwriting of Mr. Kapadia Is noteworthy on this application.
"Salary Rs. 20 per month. Time 8 a. m. to 9 a. m. Date ‑of appointment 4‑11‑70."
10. It is noteworthy from the above endorsement that Mr. Kapadia had the power to fix the pay and could appoint a person forthwith. On the same application, there is the signature of perhaps the Managing Director who has written "O.K." on 4‑12‑70. It may be that the appointment was subject to the approval of the Director, but it seems to me that it was only a formal one as the appointment had become effective from 4‑11‑70. The fourth document is also an application for appointment Mr. Kapadia passed an order appointing the applicant on a salary of Rs. 150.00 per month from 27th October 1970. The Director said 'O.K' on 4‑12‑70. This again shows the wide powers that Mr. ‑Kapadia enjoyed. He could appoint without the approval of the Director. The approval of the Director seems to me to be only a formal one. The approval was given well after one month. From the appointment of Mr. M. Farooque at a salary of Rs. 225.00 per month with affect from 17‑9‑70, it is further noteworthy that Mr. Kapadia in his case did not even take the approval of the Director or any one higher than him. Mr. Gahaffar Muhammad was appointed on a salary of Rs. 225.00 per month by the respondent. In the case of Mr. Ghaffar Mohammad also no approval was taken by any one higher than Mr. Kapadia. One Zahid Hussain was appointed at a salary of Rs. 200.00 per month by the respondent. In his case also no approval was taken from any one higher than the respondent.
11. Another class of documents had been filed to establish that Mr. Kapadia was working on behalf of the Firm. There is a letter dated 29th September, 1971, which is signed by Mr. Kapadia, and is addressed to Mr. Yunus Tar Mohammad who bad misappropriated a sum of Re. 374.00 informing him to pay the said amount by Monthly Instalments of Rs. 125.00. Similarly, there is a letter dated January 29, 1971, addressed to Mr. A. A. Ali Mohamed, written by the respondent. Lastly there is a docu ment, addressed to Messrs K.B. Sattar, Karachi, dated 12‑8‑1971. Mr. Sarwani submitted that on the basis of this letter It is clear that this could be signed only by the Managing Partner or the Accountant for 'Khamisani Sons'.
12. Mr. Syed Asghar Husain, the Representative for the respondent contended that his client had issued the letters of appointment under the direction of higher authorities. This Is a mare statement of Mr. Kapadia. The endorsement on the letters, referred to above, do not lead me to conclude that Mr. Kapadia appointed those persons after the direction of higher autho rities. Had he done so, the question of approval would have been unneces sary. I have come to the conclusion that Mr. Kapadia could on his own, appoint persona, subject to in some cases the approval of higher authorities. The approval appears to me to be only a formal one, as the persons appointed used to stare work much before the approval of higher authorities Mr. Asghar Husain also contended that It was the duty of the Accountant to maintain a list of persons appointed and their pay. That may be so. This may be an additional duty along with the power of appointment and managing on behalf of the Firm.
13. Mr. Sarwani, the, learned Representative for the appellant, also relied on two decisions of the civil Court In which the learned Judge had held, though in an interlocutory application, that Mr. Kapadia was not a workman. I have come to the conclusion, on the evidence on record, that Mr. Kapadia Is not a workman. The award of the learned Labour is set aside. I world only observe, while disposing of the appeal, that the learned Labour Court in his anxiety for expeditious disposal should not base his conclusions on mere surmise and conjecture, but should deal with the evidence on the record.