2008 PLP 290 (PLC)

SYED HAMID ALI SHAH, J.

Brief facts giving rise to this appeal are that the appellant was appointed as a trainee in the year 1987 and during the fullness of time promotions were granted to him and firstly he was appointed as Local Manager on 28-6-1989 at the Branch Office in the establishment of respondent No.1 at Rahimyar Khan. He was transferred to Lahore at his request. Subsequently, he made another request for his transfer back to Rahimyar Khan which was turned down. It was stated by the appellant that without any charge-sheet, inquiry, show-cause notice of personal hearing, due to grudge and bias, the General Manager with a view to teach him a lesson terminated his services on 25-9-2004. Being aggrieved by the order dated 25-9-2004, he served a grievance notice and thereafter he filed the grievance petition under section 46 of the Industrial Relations Ordinance in Punjab Labour Court-I, Lahore. The respondent filed written reply and took a preliminary objection that the present appellant was employed as a Manager and was not employed as a workman. Arguments on his preliminary objection were heard and vide order, dated 15-2-2005, learned Labour Court-I, upheld the preliminary objection and dismissed the grievance petition, hence this appeal.

2. Learned counsel argued that it was specifically asserted by the appellant in the Labour Court in para.3 of the petition that he was performing manual and+ clerical duties and was, therefore, a workman under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is contended by the learned counsel for the appellant that the question could not have been decided by the Labour Court without recording evidence.

3. Learned counsel for the respondent, on the other hand, has referred to the appointment letter and also referred to the case of 1991 SCMR 2332 to contend that remedy available to the appellant is to seek damages and since he was not a workman he could not approach the Labour Court.

4. Heard learned counsel for the parties and examined the record.

5. Moot question is whether the appellant .was a workman or not. If the appellant was a workman then obviously his grievance petition was maintainable before the Labour Court. The question under section 46 of the Industrial Relations Ordinance, 2000 is a workman or not is a question of fact. It is settled law that highsounding designation, has little relevance for determining whether a person is workman or not. The cases of Abdul Jameel v. Registrar of Unions West Pakistan 1971 PLC 507 and National Bank of Pakistan v. Punjab Labour Court-V, Faisalabad and 2 others 1993 PLC 595 can to referred in this respect. It has been held in the case of Saeed Ahmad Kazi and another v. NIRC and another 1984 PLC 937 the status of an employee does not depend upon his designation. The real and only determining factor is the actual nature of duties. If any case-law is needed, reference can be made to the case of Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511, Mustehkum Cement through Managing Director v. Abdul Rashid and others 1988 PLC 172, Muhammad Sadiq v. Punjab Labour Court-I, Lahore and another PLD 1988 SC 63 and Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others 1994 PLC

211. It has also been held in the case of Ittehad Chemicals through Managing Director v. Punjab Labour Appellate Tribunal 1990 PLC 227 that salary is not relevant in determining whether a person is workman or not. It is, therefore, evident from the above survey of case-law that highsounding designation has no relevance for determining whether a person is a workman or not. His salary too is, not determining factor. It is in fact true nature of duties, which determines his status as workman. The status of a person qua his position as a workman is a question of fact. There is a specific assertion by the appellant to this effect in his grievance petition. No doubt the employer has denied it. It requires determination which exercise can be done by recording of evidence. Learned Labour Court has decided the pure question of fact, without recording evidence and without proper trial. The impugned order is thus, not sustainable.

6. For the foregoing this appeal is allowed. The impugned order is set aside and the matter is remanded to the learned Labour Court for decision in accordance with law and after recording evidence. There is, however, no order as to costs. H.B.T./G-14/L Appeal allowed.