1993 PLP 485 (PLC)

SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court is directed against order dated 17‑7‑1990 of Lahore High Court, Lahore, whereby Writ Petition No. 5018 of 1990 filed by appellants herein is dismissed in limine not interfering with judgment of Punjab Labour Appellate Tribunal at Lahore, allowing appeal of respondent No. 3 herein setting aside his order of removal from service with direction that he should be reinstated without back benefits.

2. Briefly stated the relevant facts giving rise to this appeal are that Akhtar Hussain, respondent No. 3 entered employment in the company of appellants as Junior Clerk on 12‑9‑1977 and according to him was subsequently promoted as Store‑keeper and was working as Typist and Accountant but in the papers was shown as Junior Officer, although nobody worked under him nor he performed duties of supervisory nature. Vide letter dated 29‑3‑1988, services of respondent No. 3 were terminated with effect from 1‑4‑1988 with one month's salary to be paid in lieu of notice period. He sent grievance notice which was received and on finding no response he filed grievance petition under section 25‑A, I.R.O. before Punjab Labour Court No. 4 at Faisalabad.

3. In the written statement objections were taken that Labour Court had no jurisdiction as respondent No. 3 was employed as an officer/supervisor drawing salary exceeding Rs.3,000 per month and performing duties of managerial, administrative and supervisory nature. Notice was not served on the employer and grievance petition was incompetent as provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to the sale depot of appellants at Faisalabad. On the factual side it was claimed in the written statement that after employment respondent No. a was raised from Grades 2 to 3 and from July 1982 was promoted to Grade‑4 with salary of Rs.1,291 per month and was assigned the duties of Storekeeper but had entered the supervisory cadre of the company. Same year respondent No. 3 with his consent was promoted from Storekeeper to the post of junior officer with salary of Rs.3,200 per month. It is mentioned in the said letter of promotion dated 22‑8‑1984 that his services would be liable to termination on one month's notice or pay in lieu thereof. In such circumstances stand was taken that respondent No. 3 was not a workman.

4. After consideration of evidence and documents furnished by the parties, Labour Court came to the conclusion that there was no satisfactory evidence to support the fact that respondent No. 3 was a workman. Documents Exhs. R/7 to R/13 showed that respondent No. 3 was entrusted with managerial, administrative and supervisory duties on the distribution side and if occasionally he did some typing work or prepared monthly statements, that alone would not be sufficient to change his status. Two other grounds assigned by the Labour Court were that grievance notice Exh. P/5 should have been served on the head of office at Faisalabad instead of Managing Director at Karachi. Secondly, establishment at Faisalabad had employees less than twenty. Consequently the grievance petition was dismissed.

5. The Punjab Labour Appellate Tribunal, Lahore vide its judgment dated 11‑7‑1990 allowed appeal of respondent No. 3 and reinstated him in service without back benefits after setting aside the decision of Labour Court and order of removal from service. Labour Appellate Tribunal after reappraisement of evidence reversed the finding of the Labour Court and concluded that respondent No. 3 was a workman. Writ petition was filed and High Court declined to interfere and dismissed the petition in limine on the ground that question whether respondent No. 3 was workman or not is a question of fact and in that respect Labour Appellate Tribunal has recorded proper finding after appraisement of evidence brought on the record, which is not open to question in the writ jurisdiction, particularly when there is no material misreading.

6. In this case leave has been granted vide order of this Court dated 19‑12‑1990 and relevant paragraph therefrom is reproduced as under:‑ "We are of the view that the foundation of the jurisdiction of Labour Court is that the person invoking the provisions of section 25‑A of the I.R.O. should be a workman. It has long been firmly settled that administrative or quasi‑judicial Tribunals are not the judges of the facts constituting the foundation of their jurisdiction. Seemingly, the High Court was not justified in refusing to go into the question of respondent's status on the assumption that it was concluded by a finding of fact." .

7. The question arises before us for consideration whether High Court in writ jurisdiction could go into the question whether respondent No. 3 was workman or not. On this point we already have case‑law supporting proposition that High Court can go into such question. In the case of Ganga R. Madhani v. Standard Bank Ltd. and others (1985 SCMR 1511), Bank' employee, who was appointed as an Accountant, was dismissed on account of misconduct, whose duties included passing of vouchers, cheques and bank drafts, supervision and checking of ledgers and supervision of despatch of bank advices and statements of accounts. Leave was granted by this Court to examine whether such employee of bank was a workman within definition of section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and para. 3(b) of M.L.O. (Zone C) No.

52. After dismissal, bank employee made representation which was dismissed by Board of Directors of the Bank after which he obtained award from Arbitrator holding that employee was a workman, which remedy was available under the law at that time. Award was challenged by the Bank in the High Court and it was held that employee was not a workman and award was quashed. After grant of leave this Court agreed with the finding of the High Court and observed as under:‑‑ "A reading of the abovementioned 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 tic 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."

8. In the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLD 1986 Supreme Court 103), Shift Engineer was found sleeping while on duty and was dismissed after he leas found guilty in domestic enquiry. Against dismissal his application was rejected by the Labour Court on the ground that it was not maintainable. He filed writ petition in the High Court which was accepted on the ground that he was workman as nature of his duties included engineering work t,) be done with hands requiring physical as well as mental toil. After grant of leave this Court allowed appeal holding that employee/Shift Engineer was not a workman. Relevant observation in the report is reproduced as under:‑‑ "As discussed above such casual or occasional work involving physical exertion, does not determine the nature of the duties of an employee as a whole. We are unable to agree with the learned Single Judge that mental toil would fall within the expression "manual labour". So far as some paper work to be done by the respondent in preparing reports etc. is concerned, it is sufficient to state that such minor part of the duties, on the same principle will be immaterial and cannot convert the nature of his work to be clerical, as held in the case of Chairman, Brooke Bond Pakistan, Limited."

9. In the case of Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another (PLD 1988 SC 633) employee was initially appointed in Hotel intercontinental as confectionery cook and subsequently got promotions and at the relevant time was incharge of confectionery cooks and used to take meals in the officers canteen and stopped contributing to union fund in view of his promotion. For misconduct he was dismissed from service which action was challenged by him in the Junior Labour Court, where he succeeded and obtained order of reinstatement as workman. Having failed before the Labour Appellate Tribunal, Management filed writ petition which was accepted by the High Court. After grant of leave this Court agreed with the finding of the High Court and dismissed the appeal. Relevant paragraph from the report is reproduced as under:‑‑ "We have heard and carefully considered the arguments of the learned counsel for the contesting parties. We are of the opinion that the real test for determining whether a person falls within the ambit of the definition of `workman' depends on the nature of the duties performed by him. In the present case it is manifest from the evidence on record that the duties of the appellant at the relevant time were of a supervisory nature and since the nature of work performed by an employee is to be considered as the true criterion and the deciding factor in determining as to whether or not he was a `workman', the learned Judge in the High Court was justified in the light of the evidence on record; to reverse the concurrent findings of the Labour Courts below which were not based on the evidence on record."

10. In all the cases mentioned above, High Court did go into the question whether employee was workman or not and in that connection appraised the evidence which had been brought on the record. In the instant case High Court' did not go into the question on the ground that it was a question of fact regarding which finding was recorded by the Labour Appellate Tribunal which was not open to question in writ jurisdiction. We are of the view that in the light of case‑law cited above, High Court should have gone into the question and in order to enable the High Court to do so we set aside the impugned order and allow the appeal by remanding the case to the High Court for appraising evidence to decide the question whether employee is workman or not. This should be done after hearing the counsel for both parties on an early date not later than three months. It would not be out of place to mention here that during hearing of appeal before us we had directed both parties to produce concise statements within stipulated time which was done by the appellants and not by respondent No. 3, who appeared in person. High Court may give equal opportunity to both parties to produce additional documents if found necessary for just decision. A.A./D‑96/S Case remanded.