1999 PLP 273 (PLC)

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 2(xxviii), 25‑A & 38(3‑a)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Status of workman‑‑‑ Determination‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Revisional jurisdiction, exercise of‑‑‑Employee who had challenged order of his termination in his grievance petition before Labour Court, was a high ranking officer and was holding quite reasonable and attractive post of Law Officer drawing Rs.55,000 per month as salary including all allowances and he 'was entitled to avail unlimited medical facilities, free telephone etc.‑‑ Employee was also entitled to travel by air and to have accommodation in superior hotels for attending to employers outstation business and by no means he was performing manual or clerical duties‑‑‑Employee who was such an important functionary, by no stretch of imagination, could claim to be a 'worker'‑‑‑Mere nomenclature of a post of designation of an employee no doubt would not determine exact nature of his assignment, but same would be relevant, even if not conclusive for judging class of his job‑‑‑Mere fact that one did not have powers of hire and fire would not make employee a worker or workman, but duties that he had been performing would go a long way together with question of emoluments and allowances of his post, in determining if he was a 'workman' or had some higher status‑‑‑Employee who had failed to establish his status as workman, could have recourse to any other forum for his grievance, but forum of Labour Court was not available to him for that purpose‑‑‑Grievance petition filed by employee under S.25‑A of Industrial Relations Ordinance, 1969 against termination of his service, was not maintainable, in circumstances. M. Saleem Khan for Petitioner. Respondent in .person. Date of hearing 27th January, 1999. The revision petition is directed against two orders having been rendered by the learned Labour Court, Rawalpindi, on 2‑9‑1998 and 3‑11‑1998, rejecting the application submitted by the establishment (Fauji Fertilizer Company), respondent before the Labour Court in the proceedings of the grievance petition, having been filed under section 25‑A of the Industrial Relations Ordinance, 1969, by an ex‑employee, Mr. Muhammad Abbas Malik, retired Lt.‑Colonel.

3. In the course of the proceedings, on 23‑9‑1998, an application was made by the respondents before the learned lower Court, with a prayer that the grievance petition be summarily rejected, as envisaged by the provisions of Order. 7, rule 11, C.P.C. It was resisted and replied by the petitioner before the Labour Court on 7‑10‑1998. He maintains that the question of his status whether, he is a workman or not is mixed question of law and fact, which can be decided only on appraisal of the evidence to be led by the parties in that behalf. This plea was upheld by the learned lower Court, which was presided over first by Ch. Muhammad Ashraf, Additional District & Sessions Judge, who was succeeded by Mr. Muhammad Gulzar Ahmad Butt, who endorsed the view point of his predecessor, without tinder taking any discussion of his own order, dated 2‑9‑1998, rendered in brief by Mr. Muhammad Ashraf, has been quoted in extenso by Mr. Gulzar Ahmad Butt, while disposing of the prayer petition of the establishment finally on 3‑11‑1998. Learned counsel representing the organization has assailed both these orders, even the previous one, as a measure of abundant caution, as submitted by him, although the previous order having been passed by the learned Court below in ex pane fashion, on hearing the learned counsel for the grievance‑petitioner, without issuance of notice to the establishment and without hearing its counsel or representative need not have been assailed. The grievance‑petitioner, who is respondent before this Court, contends that the initial order, dated 2‑9‑1998 was the basic one, and as it was not challenged in any higher forum by the company, it would be deemed to have attained finality. He is obviously working there. The learned lower Court had only given a tentative opinion, without taking the trouble of hearing the other side, as already said. The learned Judge, who passed the order, subsequently on 3‑11‑1998, also appears to have been swayed by the finding/opinion aforesaid, although he should have appraised and examined the, rival plea and contentions, before coming to a conclusion, as regards maintainability of the application under Order 7 rule 11, C. P.C., but he has not applied his own mind respecting the issue in controversy.

4. Provisions of C.P.C. and the spirit of the Code are generally taken into consideration by Court, while discussing and deciding questions of civil nature, even though the matters may not strictly fall within the jurisdiction of the civil Courts, and pertain to other proceedings of Courts of similar nature, as Family Courts, Rent Controller Courts, Labour Courts, etc. Mr. Gulzar Ahmad Butt has strangely observed repeatedly in the course of the impugned order, dated 3‑11‑1998 that his predecessor Mr. Muhammad Ashraf having already adjudicated upon or made determination of the issue/question under consideration, the same cannot be re‑opened, although Mr. Muhammad Ashraf Chaudhry had passed the order, as already observed, in ex parse manner, without issuance of notice to the authorities of the company and without hearing them, and final determination in that behalf had to be made by the Court below after having heard both sides in that regard. He just adopted the view expressed by his predecessor to the effect that the issue could only be resolved on analysis and appreciation of the evidence of the parties (in regard to the questions of status of the employee, whether or not he could, be regarded as a workman). When Mr. Gulzar Butt says that his predecessor had already determined they issue and he is legally precluded or debarred from reopening it, he obviously falls in error, and such a view cannot manifestly be affirmed or endorsed.

5. I would be the 1st man to accept the contention that the provision of Order 7, rule 11, C.P.C. cannot be invoked in matters pending before labour forums. Just a principle has been enunciated and the provisions do not lay down any substantive law, nor can the same be treated as exhaustive or all- embracing on the subject, as has been pronounced by the Hon'ble High Court in the case reported as 1992 MLD 225 (Lahore). It would be an exercise in futility and sheer wastage of precious time of the Court, if the parties are called upon to lead evidence and the Court takes into hands, the task of taking down evidence for determination of an aspect of the case, which is so vivid and apparent on the face of it. According to the employee's own showing, as also his pleadings, so expressly incorporated in his grievance petition, he was an important functionary, holding a job and performing duties on a widely different and highly raised pedestal, and by no stretch of imagination could he claim to be a worker or a menial of no significance. True, mere nomenclature of a post or designation of its incumbent would not be determine the exact nature of the assignment but certainly the same will be relevant, even if not conclusive, for judging the class of the job. The mere fact that one does not have powers of hire and fire will not make him a worker or workman. Nature of the duties that he has been performing will go a long way together with the quantum of emoluments and allowance of the post, in determining if it is one of a workman or has some higher status. The respondent has been drawing around Rs.55,000 per month as salary. This included residential allowance, entertainment allowance, servant allowance, house furnishing allowance., vehicle along-with petrol, free telephone, unlimited medical facilities, etc. He was entitled to travel by air and to have accommodation in superior hotels for attending to company's out‑station business. Could all these amenities be enjoyed by a poor worker? He was a high ranking officer and was holding quite a responsible and attractive post, in the hierarchy of management or executive administration of the organization. By no means he was performing manual or clerical duties. He had even opted for grant of pension and was one of the trustees of the Employees Pension Fund. He did not make denial as regards enjoyment of these facilities and perquisites. Where was then the need to have asked the organization to establish all that by leading evidence and then called upon the gentleman to displace these averments by adducing evidence in rebuttal? Object of provisions of Order 7, rule 11, C.P.C. is not to keep the chapter open, when on the face of it, assertion of a party, which may go to the root of the case, is either admitted or denial of which is not possible or the substance is in consonance with the common sense.

6. The gentleman makes grievance of the fact that he has been thrown out of service without any show‑cause notice and without proof, even allegation, of any delinquency or default or malpractice on his part. The establishment maintains that it was a contractual service, and under terms and conditions of service his exit could be ordered on payment of salary of one months, and this condition was complied with, before asking this person to quit. Well, he may have a case otherwise; but the question that would arise essentially is if he has entitlement to invoke the aid of the Labour Laws in his favour, by having access to a Labour Court. He may have recourse to any other forum for establishing his assertion and vindicating his position, but certainly the forum of a Labour Court would not be available to him for the purpose. The view‑point of the Court below in that behalf is open to serious exception and cannot possibly be adopted or affirmed. The impugned order, dated 2‑9‑1998 and 3‑11‑1998 are set aside, being wholly misconceived, infirm and unsustainable in law. The same are not immune from interference by this Court, in exercise of its revisional jurisdiction; and I proceed to allow the revisions petition and rescind the orders aforesaid, entailing dismissal of the grievance petition. There shall be no order as to costs. H.B.T./944/Lb.P Revision Petition allowed.