1991 PLP 328 (PLC)

(c) Industrial Relations Ordinance (XXIII of 1969)

S. 25-A

Constitution of Pakistan (1973), Art. 199

Constitutional jurisdiction

Employee of Corporation being `workman', Labour Appellate Tribunal had correctly and competently granted him relief

Judgment of Labour Appellate Tribunal, neither suffering from jurisdictional shortcoming nor any material irregularity or misreading of evidence meriting interference in Constitutional jurisdisctional having been pointed out, petition was deemed to be misconceived and dismissed in circumstances. M.S. Bokhari for Petitioner. M. Hamid Awan for Respondents. Date of hearing: 6th February, 1991. Consequent upon disinvestment by way of transfer and sale of entire share holding of the petitioner, a body corporate, incorporated under the Companies Act, 1913, by the Punjab Industrial Development Board (hereinafter referred to as the Board) to United Sugar Mills Limited S.I.T.E. Mangoo Pir Road, Karachi, pursuant to agreement dated 9-2-1986, clause 12 whereof envisaged the latter's right to retain only such staff/employees as it may deem for with a corresponding obligation of the former to pay them off or absorb elsewhere, respondent No. 3, initially having been recruited as a mechanical apprentice on 6-11-1980 with an honorarium of Rs.400 p.m. and appointed, as Assistant Engineer on 5-12-1983 for a probationary period of three months with a salary of Rs.400 p.m. in addition to the allowances, to which post he was subsequently confirmed on 29-2-1984, vide letter dated 30-10-1985, was required by the new management to hand over the charge to the Deputy Chief Engineer forthwith and report to the Board for further instructions since his services were no more required. Feeling aggrieved thereby, after serving the statutory grievance notice contemplated by section 25-A of the Industrial Relations Ordinance, 1969 on 7-12-1985 the respondent had a recourse to the Punjab Labour Court No. 7, Gujranwala seeking reinstatement to service with back benefits vide application dated 12-1-1986, which was turned down by the Presiding Officer on 11-6-1988 on bi-fold reasons, firstly, he does not fall within the expression "workman" as defined in section 2(xxviii) of the Ordinance ibid, and, secondly, in term of clause 12 of the agreement referred to supra, redress of the alleged grievance can be sought against the Board through a civil suit. However, on appeal the Punjab Labour Appellate Tribunal vide the impugned judgment dated 8-11-1988 reversing the findings reinstated the respondent with back benefits, legality whereof has been assailed in these proceedings, urging the findings of the trial Court as the sheet-anchor of the submissions to which learned counsel for the respondent joined issue.

2. Having considered the arguments canvassed at the Bar, I am of the firm view that both the contentions are misconceived for the reason that from the record it is clearly established that the respondent was an employee of the petitioner, a statutory body, incorporated under the Companies Act with an independent juristic status and one of the units owned by the Board, who may be having some say in the policy matter, but by no stretch of imagination was the respondent's employer, which status the petitioner continued to enjoy even subsequent to the change of its management and the proprietary interest. This legal position remains unhampered with despite the agreement to which admittedly neither the respondent was privy nor the parties thereto could barter his rights under the law, independent of the fact that one cannot contract out of law.

3. Additionally if the petitioner had resolved to say good-bye to the respondent by laying him off as having become surplus then the only option available to him was to have a recourse to the retrenchment process contemplated by the Standing Orders Ordinance No. 13 of 1968, envisaging a self- contained comprehensive procedure which admittedly the petitioner has not adopted. Therefore, though the petitioner may be having soiree claim under the agreement vis-a-vis the Board, but certainly could have not slashed off the respondent from his pay roll as a somersault without recourse to appropriate legal process.

4. Likewise, the second contention is not borne out from the evidence on the record, because the respondent in his testimony as P.W. 1 has categorically deposed that he enjoyed no supervisory, administrative or managerial capacity, rather used to undertake manual work personally; on the eve of his termination his basic salary was Rs.5:10 p.m. and in the departmental hierarchy he was placed subordinate to the Shift Engineer, Deputy Chief Engineer and the Chief Engineer, which in substance remained unquestioned. Not only that but also during the course of arguments, learned counsel for the petitioner frankly admitted that the respondent had no authority to recommend, grant or sanction leave to any of the foremen, or mechanics working with him. Even Muhammad Afzal Bhatti, Deputy Chief Engineer, as R.W.3 could not particularise through documents the nature of respondent's duty to which strength is lent by the fact that he is covered by the schemes catered for the benefit of workers by the Punjab Social Security as well as Old-Age Benefits Institutions.

5. In view of the afore-going, neither the impugned judgment suffers from any jurisdictional shortcoming nor any material irregularity or misreading of evidence meriting interference in this jurisdiction has been pointed out; resultantly, the petition being misconceived is hereby dismissed leaving the I parties to bear their respective costs. AA./P-133/L Petition dismissed.