GANGA R. MADHANI vs STANDARD BANK LTD. And Other

ASLAM RIAZ HUSSAIN, J.--This Appeal by special leave, is preferred against the judgment passed by a Division Bench of the former High Court of Sind and Baluchistan, Karachi, on 7-3- 974, by which Constitutional Petition No. 122 of 1973, was allowed.

2. The facts forming the background are that the appellant, Ganga Ram R. Madhani, was employed as a Grade-III Officer in the Standard Bank Limited (Respondent No. 1) which is a Banking Company incorporated under the Companies Act, 1913, and having its Registered Office at Muhammadi House, I.I. Chundrigar Road, Karachi. He had also been issued a Power of Attorney, duly executed, in his favour by the respondent-Bank for the proper performance of his duties which also included passing of vouchers, cheques and bank drafts; supervision and checking of ledgers and supervision of despatch of bank advices and statements of accounts, etc. On 8-1-1970, when the appellant was performing his aforesaid duties as Incharge of the "Draft Branch" in the Boultan Market Branch of the respondent-Bank at Karachi, a Bank Draft No. 8/66, dated 5-1-1970, purported to be for Rs.19,000, issued by the Sukkur Branch of the respondent-Bank in favour of one M. Haroon, was presented for payment in the Boultan Market Branch through clearing by the Muslim Commercial Bank Ltd., with a special crossing "Payees Account Credited".

The draft was cleared and cashed, but without any advice having been previously received from the issuing Branch of the Bank. After 8 days of the clearance of the aforesaid draft, the appellant sent the first reminder to the Sukkur Branch for the advice in question on 16-1-1970 which also followed other periodical communications. However, the requisite advice, in triplicate, was received on 20-4-1970, from the issuing Branch and it transpired that the draft in question had been issued for a sum of Rs.100 only. Despite receiving of this advice, the appellant took no steps to inform the Zonal or the Head Office, about the incident.

After about a year, when reconciliation of accounts were undertaken, it was discovered that on the draft in question, the amount of draft was altered from Rs.100 to Rs.19,000 by manipulating the amount in figures as well as words.

On the discovery of the above fraud, the appellant was charge---sheeted on 31-3-1971. He submitted his explanation but as a result of inquiry he was found guilty of misconduct, gross negligence and wilful suppression of information and accordingly dismissed from service on 7-4- 1971. The appellant represented against his dismissal, but the Board of Directors of the respondent- Bank in their meeting which took place on 14-9-1971 rejected his representation for re-instatement but on compassionate grounds, gave him the option to resign from employment of the respondent-Bank. The appellant, however, declined to do so.

On 28-3-1972, the Martial Law Administrator Zone 'D' (Governor of Sind), in exercise of the powers conferred on him by M.L.O. No.5, promulgated by the Chief Martial Law Administrator issued M.L.O.

No. 52 allowing a "workman" aggrieved by the termination of his employment as a result of "retrenchment, dismissal, discharge, lay of, lock out or otherwise on or after 1st January, 1971" to make an application to the Arbitrator appointed under the said order and having jurisdiction in the area in which the industry or the commercial establishment concerned was situate. Pursuant to the above order, the appellant applied for redress to the S.D.M., Old Town, Karachi (Mr. Muhammad Ibrahim W. Qureshi), who was empowered under the order as Arbitrator for the area where the appellant at the the of his dismissal was employed. An objection was taken before the Arbitrator, that the appellant was not a "workman" for the purpose of the Order. The Arbitrator, however, gave an award on 24-8-1972, holding the appellant to be a workman. On a subsequent application for the award on merits, the Arbitrator found that the appellant was dismissed from service entirely for misconduct and section 12(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the 1968 Ordinance) was attracted to the appellant's case, because of the provisions of the Standing Order No. 15(c). An application by the Bank for the review of the above award was also dismissed by the Arbitrator on 20-9-1972.

7. The respondent-Bank challenged the aforementioned award through a writ petition, which was allowed by the High Court vide the impugned judgment and it was held that the appellant was not a 'workman' and the award given by the Arbitrator was quashed.

8. Feeling aggrieved Ganga Ram appellant, moved this Court for grant of leave to appeal against the impugned judgment of the High Court. Leave was granted to him by this Court on 2-9-1974, to examine whether the appellant was a 'workman' within the definition of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the 1968 Ordinance) A It may be mentioned that leave was granted in this case because Ganga Ram appellant alleged that he was employed by the respondent-Bank as an 'accountant' and leave on the question as to whether or not 'chartered accountants' are workmen, had already been granted in Ferguson and Co. v. Ferguson Employees Union (C.P.S.L.A. No. K- 108/74). Both the appeals were heard together as required by the leave granting order, but since the position of Ganga Ram appellant is somewhat distinguishable from members of the Institute of Chartered Accountants and the terms and conditions on which he was employed by the respondent-Bank were quite different from those of the Chartered Accountants, his matter is being decided separately.

9. As already observed above the only question involved in this case is as to whether or not Ganga Ram appellant was a 'workman' for the purposes of Martial Law Order No. 52, promulgated by the Governor of Sind.

Section 3(b) of the said Martial Law Order provides that for the purpose of that Martial Law Order the word 'workman' will have the same meanings as are assigned to them under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) In that Ordinance this word has been defined as follows:-- "2(i) "Workman" means any person employed in any industrial of commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward,"

The meaning assigned to the said word in Ordinance (VI of 1968), makes it abundantly clear that a 'workman' as defined in that Ordinance, is a person employed merely to do manual or clerical work, whether it' be skilled or unskilled. This definition completely excludes from its ambit persons employed in supervisory, administrative or managerial capacity and makes it amply clear that the duties of a 'workman' have nothing whatsoever to do with the control or management. Nor do they) involve taking any initiative or making decisions and are, more or less, of routine and repetitive in nature.

10. It is, thus, obvious that it is the nature of work performed by an employee that is the deciding factor in determining as to whether on not the employee is a 'workman'.

The test for determining this has been succinctly laid down in Chairman Brooke Bond v. General Secretary Union PLD 1969 Lah. 717, in the following words:-- "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, connote that it is more or less a routine work--- not requiring any great amount of initiative, imagination, direction, central 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 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 the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."

The conclusion reached in the above-noted Lahore case was referred to by this Court (Supreme Court) with approval in another case in which Brooke Bond Ltd. Was a party, namely, Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and 6 others PLD 1977 SC 237.

11. It would, thus, be noticed that in determining the status of at employee, i.e., deciding as to whether or not he is a 'workman', what is to be seen is the overall nature of the duties assigned to the person in question and the main or primary functions that he is required to perform and not the work that he might have to do incidentally in the course of performance of his normal duties, because even a person employed at the highest managerial or supervisory level has, some times, to perform functions or do some work which may be termed as 'manual' or 'clerical'. No doubt, in the present case some of the duties assigned to the appellant were of a routine nature and he was required to maintain Fixed and Short Term Deposit registers and was also required to prepare balance sheets, salary vouchers and bills, etc. But it is pertinent to note that he had also been given a Power of Attorney by the respondent-Bank authorising him to perform, jointly with an other attorney of the bank, a large number of functions which are clearly of managerial nature. The Power of Attorney is available at page 102 of the Paper Book and it would be useful to reproduce some of the paragraphs thereof to show the nature of the functions entrusted to him thereby:-- "3. To by, sell, hypothecate, pledge, mortgage, endorse and transfer Government securities, municipal, Port and Improvement Trust Bonds, and Shares of Joint Stock Companies and all other Securities and execute and countersign Letters of Guarantees and other indemnities; "4 To receive deposits, to sign receipts and to give effectual discharges in the name of the bank; 5

6. To recover and take possession of and manage all lands, houses, buildings and other property mortgaged to or otherwise belonging to the bank and to let on lease or otherwise manage the same and to make sale and dispose of lands, houses, buildings, goods, merchandise, and property of every description, whether belonging to the bank absolutely or in trust or as security and for any such purpose to exercise all such powers and authorities and adopt proceedings as the bank might exercise;

7. To purchase or take on lease or other terms any lands, houses or buildings for the purpose of offices or premises suitable for carrying on the business of the bank or for the residence of its officers and staff at any place and to build, alter and furnish and to recover any sum or sums which may become due thereunder;

8. To assign and reassign Policies of Insurance also in the name of the bank or in which the bank is interested in any way, to file proofs and to recover any sum or sums which may become due thereunder".

12. A reading of the above-mentioned paragraphs clearly shows that powers thereby conferred on and functions thereby required to be performed by the appellant can neither be termed as manual nor clerical work and evidently involve the exercise of discretion and taking of important decisions.

It is noteworthy that he has also been given in clear and unambiguous words the power to manage some of the affairs of the bank. He was also given a number of powers which he can exercise by himself. This is clear from a reading of paragraph No. 10 of the Power of Attorney which authorises him to do all acts, deeds and things, which are necessary requisite or expedient for the better or efficient performance of several acts, relating to the affairs of the bank.

Similarly paragraph No. 11 authorises him to do thins, perform functions and transact in the name of and on behalf of the respondent-Bank alone and singly, or jointly with any other Attorney or officer of the bank, a large number of functions which can, by no means, be said to be manual or clerical in nature. As such we are of the view that the learned Division Bench of the High Court of Sind and Baluchistan I at Karachi, had rightly held that Gangs Ram appellant was not al 'workman' within the meaning of clause (i) to section 2 of the 1968 Ordinance.

In view of the above discussion the Appeal is dismissed. Parties are, however, left to bear their own costs.