1989 PLP 628 (PLC)

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss. 2(xxviii) & 25‑A‑‑Workman, proof of‑‑Employee appearing as his own witness categorically denied that he was performing functions of administrative or managerial nature and deposed that he was doing manual work‑‑Witnesses produced by employer kept silent as to whether employee was workman or not‑ Objection of employer, that employee was not workman, held, could not be sustained. (b) Industrial Relations Ordinance (XXIII of 1969)‑‑ ___S. 25‑A‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Both Courts below concurrently found on basis of evidence on record that employer Mill was not running in loss and that there was no financial exigency which could necessitate termination of workers by abolition of posts‑ Conclusion concurrently drawn by Authorities below, held, could not be said to he arbitrary or whimsical so as to justify interference in Constitutional jurisdiction of High Court. (c) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑S. 38‑‑Appeal, competency of‑‑Appeal before Tribunal was filed by counsel in those favour power of attorney was executed by one whose designation and capacity till today remained undisclosed‑‑No effort was made at any stage before the Court to set matter right either by filing a fresh power of attorney executed by competent person or by filing application for ratification‑‑No exception, held, could be taken to view of Tribunal that appeal was incompetent. Ch. Muhammad Anwar Bhinder and Pervaiz

1. This Constitutional petition calls in question the orders dated 19th of October, 1988 and 17th of March, 1988 by the Punjab Labour Appellate Tribunal, Lahore and the Punjab Labour Court No. 7, Gujranwala.

2. The circumstances in which this petition has arisen are that respondent No. 3 was originally employed as a Clerk in the mill of the petitioner whereafter he was promoted firstly as Supervisor Weightment and then as Programme Incharge. His services were terminated through the order dated the 18th of September, 1986 (Exh. P.1) on the ground that the post held by him, had been abolished and his services were no longer required. After completing the requisite formalities respondent No. 3 challenged his termination by filing a petition under section 25‑A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No. 7 Gujranwala. This petition was contested by the petitioner by Fling a written reply in which it was objected that respondent No. 3 was not a workman within the meaning of law and as such the petition under section 25‑A was not competent.

3. The Punjab Labour Court No. 7, Gujranwala, accepted this petition on ‑It h of March, 1988. It was found by the Court that the petitioner had failed to prove that its factory was running in loss so as to necessitate abolition of posts. It was also noticed by the Court that even according to minutes of the meet' which the decision was taken to abolish the posts, it was not mentioned thing m at the losses were being suffered by the organization. In these circumstance accepting the petition, the termination was declared to be illegal and tle the respondent were ordered to reinstate in the service with all back benefits. It was further observed that if the post of Programme Incharge was not available, the petitioner be posted as Supervisor Weightment. This order of the Labour Court was challenged by filing an appeal befor he Punjab Labour Appellate Tribunal where an objection was raised respondent No. 3 that the appeal was not properly presented and had not been filed by an authorised person. This objection was upheld by Labour Appellate "Tribunal which dismissed the appeal as incompetent. However, while doing so the merits were also examined and it was observed that the petitioner had no case the best evidence especially the balance sheet showing loss had not been produced. Mr. Javed Jalaf, Advocate, appearing for the petitioner, has vehemently intended that respondent No. 3 was not a workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969 and as the objection related to the very jurisdiction of the Labour Court, it was obliged under the law to have taken nonce and decided it. There is no cavil with the proposition that a jurisdictional objection if raised has to be decided by the Tribunal concerned. However, it appears that objection was not pressed before the Labour Court which did not advert to it. Even otherwise on the basis of the evidence on record it cannot be held hat the respondent No.3 is not a workman. While appearing as his witness he has categorically denied that he was performing functions of an administrator or managerial nature. He deposed that he was doing manual work. Both the witnesses produced by the petitioner kept silent on what in the submission of the learned counsel for the petitioner, is vital aspect of the case. In this state of affairs it is not possible to sustain the objection being raised by the learned counsel.

5. The learned counsel next challenged the finding of the two Courts below on merits. This contention of the learned counsel is not well founded. Both the Courts have concurrently held that the mill of the petitioner was not running in loss and there was no financial exigency, which could necessitate the termination of workers by abolition of posts. The witnesses produced by the respondent himself have admitted that during the period in question bonus was paid by the mill to its workers and also that the services of the temporary employees were not dispensed with. From these facts the conclusion drawn by the authorities below, cannot be said to be arbitrary by whimsical so as to justify interference in the Constitutional jurisdiction of this Court. Apart from merits the view taken by the Labour Appellate Tribunal of he appeal before it, was incompetent also appears to be sound. The appeal was led by the learned counsel in whose favour power of attorneys was executed b one CA_ Khan whose designation and capacity till today remains undisclosed. No effort was made at any stage before the Court either by filing a fresh power of attorney executed by competent person nor an application was submitted for ratification. No exception can, therefore, be taken to the view which prevailed he Punjab Labour Appellate Tribunal while dismissing the appeal as being authorised. In view of what has been stated above, this petition fails and is hereby dismissed. The parties are however, left to bear their own costs. H .B.T./R‑136/L Petition dismissed.