1999 PLP 307 (PLC)

The brief facts out of which the present writ petition arises are that the services of the petitioner were terminated by the respondents on 7‑5‑1991. The petitioner being aggrieved filed petition under section 25‑A, of I.R.O. 1969 for setting aside the termination order and for reinstatement with back benefits before the Labour Court No.4 Faisalabad. The Labour Court dismissed the application of the petitioner after appreciation of evidence; that petitioner was performing his duties of supervisory nature with pay ‑of more than Rs.800, so he was excluded from the definition of workman. The petitioner being aggrieved filed an appeal before the Punjab Appellate Tribunal, who accepted the appeal vide judgment dated, 14‑7‑1996 and remanded the case to the Labour Court for its decision on merits. The respondents being aggrieved filed Writ Petition No. 15647 of 1996 which was accepted vide judgment, dated 23‑2‑1997 and remanded the case to the Appellate Tribunal to decide afresh in accordance with the parameter prescribed in the judgment. The Appellate Tribunal after remand, dismissed the appeal of the petitioner vide judgment, dated 16‑7‑1998; hence the present writ petition.

2. The learned counsel of the petitioner contended that main duties of the petitioner is of workman. He further states that both the Tribunals below have given concurrent findings of fact against the record; that the petitioner shifted his onus by producing sufficient evidence on record that the main duties of petitioner is of workman; that respondent failed to discharge their onus to dislodge the stand of the petitioner that the petitioner is not a workman. He further stated that recommendation of leave of his subordinate does not change the status of the petitioner from workman to managerial (the status of an employer); that the petitioner has no power to higher and fire his subordinate; that petitioner visited market simply for the performance of providing information to his employer qua the rate of different Articles of Food; that definition of workman by virtue of section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968) is automatically be read in I.R.O. 1969 by way of Reference. It is further contended that action of respondents is against the order 12(3) of the West Pakistan Standing Order 1968 but both the Tribunal below did not consider this aspect of the case. He relied upon the following judgments:‑‑ 1994 SCMR 2213; 1992 SCMR 505; and 1998 SCMR 644 = 1998 PLC

172. He further stated that respondents Tailed to provide copy of job description to the petitioner till his termination.

3. Learned counsel for respondents contended that nature of duties of the petitioner, is of administrative type. The respondents have brought on record sufficient material by way of documentary evidence to show that the petitioner is not a workman. He further stated that both the Courts below after proper appreciation of evidence gave concurrent findings of fact against the petitioner; that the petitioners is not workman and judgment of both the Tribunals are in accordance with law as the law laid down by the Hon'ble Supreme Court in the following judgments: ‑‑ PLD 1986 SC 103; 1993 SCMR 1370; PLD 1994 SC 273; 1985 SCMR 1511 and 1993 SCMR

322. In rebuttal the learned counsel for the petitioner contended that Exh.R.45‑A has been placed on record by the statement of learned counsel for the respondents. The petitioner was not provided opportunity to rebut the same therefore, both the Courts‑‑‑below wrongly relied upon this document.

4. I have given my 'anxious consideration to the contentions of learned counsel for the parties and perused the record myself. It is pertinent to mention here that all the documents produced by the respondents were duly confronted 'by the petitioner during his statements except Exh. R/45‑A. There is sufficient material on record to come to a conclusion that the petitioner is not a workman as is evident from the evidence on record Exh.R.45‑A, therefore, I ignore Exh.R.45‑A. It is pertinent to mention here that Exhs.R.l to R.29, R.30 to R.44 were duly confronted by the respondents at the time of statement of petitioner. The operative part is reproduced hereunder:‑‑ that is why this Court in early round of litigation i.e. Writ Petition No. 15647 of 1996 observed as follows:‑‑ "It also seems that the relevant documents, particularly Exh.R.30 to Exh. RAT had not been duly appraised and had they been properly appraised the same would have helped him in resolving the issue in a much better way. Since the finding has been arrived at in disregard of the relevant evidence and the law as, cited before this Court, this Constitutional petition is allowed." It is worth mentioning to note here that both the parties did not agitate the same before the Hon'ble Supreme Court, therefore, this judgment is binding between the parties as it has attained finality. I am fortified by the judgment of Hon'ble Supreme Court (PLD 1987 SC 145); Exhs.R.1 to R.29 reveal that the petitioner has power to recommend leave/compensatory leave application of his subordinates similarly Exhs.R.30 to R.44 reveal that the petitioner being a Supervisor has power to confirm probationer performance review of his subordinates and also has power to record A.C.R. of his subordinate i.e. Appraisal Form. These documents also reveal that the petitioner has power to recommend increase in the salary of his subordinates; whereas the petitioner has produced Exh.P.41 appointment letter of Mr. Gulzar Muhammad in which clause (6) is as under:‑‑ "You will work directly under the orders and supervision of Finance Controller in accordance with the work schedule and job description as provided." Whereas the learned counsel for petitioner relied upon the following letters:‑‑‑ (i) appointment letter of petitioner Exh,P.1 (ii) appointment letter of Muhammad Rafique Exh.P.39; (iii) appointment letter of Gulzar Muhammad Exh.P.41. The aforesaid appointment letters contained the following Clause:‑‑ "(6) You will have work directly under the orders and supervision of Finance Controller in accordance with the work schedule and job description as provided." Petitioner's counsel relied upon the application, dated 29‑12‑1987 which reveals that the petitioner requested the personnel Manager to provide him job description. In case the aforesaid documents are put in juxta position then it is crystal clear that the petitioner is not a workman. It is settled proposition of law that remuneration or status does not determine whether the petitioner is a workman or an employee or having power of managerial power. It is settled proposition of law that duties are determined the status of an employee; the aforesaid duties clearly reveal that the petitioner is not a workman as the petitioner has to apply his own independent mind while recommending the leave of his subordinate and increase of their salaries. I am fortified by the following judgments:‑‑ 1993 SCMR 1370; 1993 SCMR 322; 1998 SCMR 644 = 1998 PLC 172 and PLD 1986 SC

103. Learned counsel for the respondent is correct in submitting that the Punjab Labour Court has examined in care from the angle as to whether or not the petitioner was a workman meaning of I.R.O. 1969 and section 2(i) of West Pakistan Industrial and Commercial Employment Standing Order Ordinance VI of 1968 was properly considered, however, the matter does not end here in view of the finding recorded by the Punjab Labour Appellate Tribunal which, as would be presently shown, are fully borne out from the record, petitioner does not qualify to be a workman even under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. From a review of the decided cases including those cited by the learned counsel for the parties certain legal principles, which can be deduced as: "firstly that the onus to prove that a particular person was a workman within the Labour Laws was upon him and that onus must be discharged by leading sufficient evidence." "Secondly, that while determining this question, it is the substantial nature i.e. pith and substance of the duties of the person concerned which should be taken into consideration and neither designation of the post nor salary is of much relevance." "that while considering nature of the duties subsidiary and incidental nature of duties are not to be given much importance." Both the Tribunal below keeping in mind the aforesaid principle of law have given concurrent findings of fact against the petitioner; that petitioner is not a workman. I am fortified by the judgment of Hon'ble Supreme Court in Sadiq Ali Khan's case (PLD 1994 SC 273) and the relevant observation is as follows:‑‑ "Petitioner recommended these leave applications by signing relevant column reserved for head of Department checked traveling vouchers and over‑time sheet bearing signature of petitioner in such circumstances evidence clearly shows that the petitioner performed duties of supervisory nature and to any case he failed to produce any evidence in support of his claim that he is a workman and did not perform duties of supervisory nature. " Since both the Courts below have given concurrent findings of fact after proper appreciation of evidence, therefore this Court has no jurisdiction to substitute its own decision in place of the decision of Courts below as the principle laid down by the Division Bench of this Court in Mussaduq's case (PLD 1973 Lah. 600). Even otherwise, the writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑ . PLD 1981 SC 246; PLD 1981 SC 522; 1992 PLC 424, 1995 SCMR 505 and 1992 PLC

297. In view of for what has been discussed above, this writ petition has no force and the same is dismissed with no order as to costs. Q.M.H./M‑1034/L Petition dismissed.