1989 PLP 203 (PLC)

‑Ss. 2(xxviii) & 25‑A‑‑"Workman", connotation of‑‑Dismissed employee of establishment‑‑Status of‑‑Entitlement to file grievance petition for reinstatement in service‑‑Dismissed employee was a worker/workman within meaning of S.2 (xxviii) of industrial Relations Ordinance, 1969 and thus entitled to claim relief under S. 25‑A thereof. Irshad Ullah Chatha for Appellant. M.A. Zafar for Respondent No.

3. Date of hearing: 14th June, 1988. This is a Constitutional petition filed by National Ban of Pakistan petitioner, challenging the order of the Punjab Labour Court dated 6‑5‑1984 and that of the Punjab Labour Appellate Tribunal dated 10‑3‑1985, reinstating Tariq Pervez, respondent No. 3, in service, with back benefits.

2. The brief facts of the case are that Tariq Pervez respondent No. 3, who was an employee of the National Bank of Pakistan, petitioner, was dismissed from service on 28‑4‑1983. Respondent No. 3 served a notice under section 25‑A of the Industrial Relations Ordinance, 1969, on the petitioner on 3‑8 1983. On _ 7‑9‑1983 respondent No. 3 filed a petition for reinstatement before the Punjab Labour Court. On 20‑11‑1983 the petitioner filed its written statement wherein it took up an objection that respondent No. 3, being a dismissed employee, was no; a worker/workman within the meaning of section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and, therefore, was not entitled to the relief undo: section 25‑A thereof. The Punjab Labour Court accepted the petition of respondent No. 3 on 6‑5‑1984, but, however, did not deal with the petitioner s legal objection raised. On 29‑5‑1984 the petitioner filed an appeal before the Punjab Labour Appellate Tribunal, where it took up the same legal objection. The petitioner also moved a Constitutional petition (Writ Petition No. 2467 of 1984) in the High Court against the order of the Punjab Labour Court, dates: 6‑5‑1984, inter alto taking up the objection that respondent No. 3 being a dismissed employee, was not a worker/workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969, and, therefore, was not entitled to any relief. On 10‑3‑1985, the Punjab Labour Appellate Tribunal dismissed appeal of the petitioner, without discussing the petitioner's main legal objection, whereupon the petitioner Bank filed a second Constitutional petition (Writ Petition No. 1106 of 1985) in the High Court against the said order and the original order dated 6‑5‑1984, wherein it also took up the legal objection which had not been answered earlier. On 19‑3‑1985 a Division Bench of this High Court suspended the order of reinstatement of respondent No. 3, subject to notice, but the same was recalled on 9‑4‑1985, whereafter respondent No. 3 joined service. In the meantime, the petitioner's first Constitutional petition (Writ Petition No. 2467 of 1984), alongwith many others, was accepted by a Division Bench of this Court on 10‑4‑1985 (see Senior Vice‑President, National Bank of Pakistan. Gujranwala Zone v. Punjab Labour Appellate Tribunal and 7 others 1985 P L C 1053). In view of this decision respondent No. 3 was removed from service. On 28‑9‑1985, the petitioner Bank withdrew the second Constitutional petition (Writ Petition No. 1106 of 1985) which was still at the limine stage. In view of the decision of the High Court recorded in Vice‑President, National Bank of Pakistan, Gujranwala v. Punjab Labour Appellate Tribunal (supra), respondent No. 3 moved the Supreme Court for leave to appeal against the discipline of the High Court delivered in Writ Petition (Writ Petition No 2407 of 19841, Leave was granted and his appeal (C. A. No. 292 of 1985) was ultimately accepted on 15‑4‑1987, with many other similar cases. The question as to whether a dismissed employee was a worker/workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969, and therefore, entitled to the relief under section 25‑A, was not answered by the Supreme Court, ac it entailed inquiry into facts. The Supreme Court ordered in all the appeal that the writ petitions/appeals stood remanded to the High Court for consideration of this and other questions.

3. Since the petitioner's first Constitutional petition (Writ Petition No. 246 of 1984) had only challenged the order of the Punjab Labour Court and its revival would not have answered the preliminary objection of the petitioner, as the Punjab Labour Appellate Tribunal had given its decision thereafter, and since the second Constitutional petition (Writ Petition No. 1106 of 1985) was hurriedly withdrawn, as the first Constitutional petition had succeeded, the petitioner filed the third Constitutional petition (Writ Petition No, 5135 of 1987) for examination of the question remanded by the Supreme Court in the appeal of respondent No.

3. Before me now it is this third Constitutional petition which come up for decision.

4. I have heard arguments of the learned counsel for the petitioner and the learned counsel for respondent No. 3 and have perused the file. The petitioner's second Constitutional petition (Writ Petition No. 1106 of 1985) which was filed in order to have the main preliminary objection of the petitioner finally decided by the High Court, namely, whether respondent No. 3, who was a dismissed employee, was a worker/ workman within the definition of section 2(xxviii) of the Industrial Relations Ordinance, 1969 and, therefore, entitled to the relief under section 25‑A, thereof, was withdrawn during the limine stage by the petitioner. The petitioner having himself withdrawn the writ petition in motion without reserving his right to file the same afresh, in case any necessity arose later, cannot I now again in the Constitutional jurisdiction have the same matter examined. But even if I were to concede, for a matter of argument, that the present I Constitutional petition is maintainable, I would have to remand the case to the Punjab Labour Court for a decision on the legal issue raised by the petitioner. However, this question has already been answered in the case National Bank of Pakistan v. Punjab Labour Court 1988 P L C 537 decided by the High Court on 7‑3‑1988, wherein it was held that a dismissed employee was a worker/workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969 and, therefore, entitled to claim relief under section 25‑A thereof. In this view of the matter, respondent No. 3 was competent to file the petition before the Punjab Labour Court, which he did. Since the decision of both the lower Labour Courts is in favour of respondent No. 3, no advantage can be served by accepting the present writ petition and remanding the case for decision of the legal issue.

5. For the foregoing reasons, I see no merit in this petition, which isle dismissed. AA./N‑152/L Petition dismissed.