1998 PLP 438 (SCMR)

ABDUL HAFEEZ MEMON, J.

This petition is directed against the judgment, dated 5-8-1996, passed by the Peshawar High Court, Circuit Bench Abbottabad, whereby it accepted the writ petition filed by the petitioner.

2. The brief facts are that Abdul Rashid, respondent herein, was posted as Assistant Accounts Officer, in 1988, in the petitioner-company. Some irregularities were found in the account for which his explanation was called for. He gave the explanation but it was not found satisfactory and an enquiry was conducted against him by the Administration, and thereafter, his services were terminated on 20-9-1988.

3. Respondent Abdul Rashid filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, before the Labour Court at Haripur, but it was dismissed by the learned Presiding Officer on 27-6-1991, on the ground that the petitioner was not a "workman within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969. The respondent thereafter filed appeal before the learned Labour Appellate Tribunal, N.-W.F.P., Peshawar, which was also rejected on 15-1-1992, inter alia holding that he was not a "workman". The respondent then filed a Constitutional petition in the Peshawar High Court, wherein the learned High Court, with reference to the job description of the respondent and emoluments, came to the conclusion that the respondent was a workman, and hence the grievance petition and appeal filed by him before the lower forums were maintainable. Having so held, the learned Judges in the High Court proceeded to decide the case on merit and held that the respondent had been wrongly dismissed and ordered his reinstatement with back benefits. Hence, this petition.

4. Raja Muhammad Akram, learned counsel for the petitioner-company, inter alia, contended that considering the definition of workman given in section 2(xxviii) of the Industrial Relations Ordinance, 1969, and clauses (a) and (b) thereof, the respondent was performing the functions in supervisory and managerial capacity, as having been posted as Manager of the Fair Price Shop and was drawing salary of more than Rs.4,000 per month and, consequently could not be considered as workman and the learned High Court has seriously erred in holding him to be a workman. Learned counsel further contended that even if it be assumed, without conceding, that the respondent was a workman, the learned High Court overstepped its jurisdiction in deciding the case on merits by substituting its opinion in the Constitutional jurisdiction under Article 199, which could not be done by the High Court.

5. Mr. Anwar H. Mir, learned counsel for the respondent-caveator, however, submitted that the respondent was getting salary of Rs.800 p.m. as shown by his job description at page 33 of the paper book, hence he was a workman, as rightly held by the learned High Court. He, however, could not dispute the other contention of the petitioner's learned counsel that the High Court ought not to have substituted its opinion by deciding the case on merit.

6. Be that as it may, the contentions raised above by the learned counsel require consideration. Leave is accordingly granted. The interim stay already granted in Chambers is modified to the extent that the benefits awarded to the respondent by the judgment of the learned High Court are stayed, but the petitioner-company shall re-instate the respondent in service from the date he reports to the petitioner for duty in implementation of the judgment of the High Court. A.A./M-60/S Leave granted.