1979 PLP 185 (PLC)

9-4-1973 Initial." The respondent No. 1 in his statement before the Junior Labour Court has stated that he had filed the application on 9th April 1973, and not on 25th April 1973. The affidavit in support of the application under section 25‑A shows that it was sworn and attested by the Oath Commis sioner on 9th April 1973. The learned Junior Labour Court in its award had given the following finding on the above point; "The application bears the initials of the clerk .of the Court. It is dated 9th April, 1973. The note of the Presiding Officer on this application, however, is dated 25th April 1973. The order sheet also shows that it was presented on 25th April 1973. This is because the Court was lying vacant and, therefore, the application could not be registered earlier. The applicant urges that he had presented the application on 9th April 1973, which fact is corro borated from the initial arid date of the clerk of the Court. I, therefore, hold that the application was `actually filed on 9th April 1973 and was not, therefore, time‑barred'." The above finding of the Junior Labour Court has been upheld by the Labour Court in appeal. The learned counsel for the petitioner has contended that as the clerk concerned was not examined the learned two Courts below were wrong in presuming that the above endorsement was of a clerk of the Junior Labour Court. The above contention has overlooked the fact that the respondent No. 1 on oath has stated categorically that he had filed the application on 9th April 1973. His statement is corroborated by the fact that the affidavit was sworn on 9th April 1973 and, therefore, the two Courts below on the basis of the record could have come to the conclusion that the application was presented on 9th April 1973. This Court cannot interfere with the above concurrent finding of fact in its constitutional jurisdiction. The Courts below were competent to believe the version of the respondent No. 1, and by doing so they have not acted without lawful authority. This is not a case of misinterpreting or misreading of the evidence. Mr. Jafri the learned counsel for the respondent No. 1 has relied upon the case of Dawood Cotton Mills Ltd. v. Presiding Officer, 4th Sind Labour Court (1976 P L C 429) in which it was held that the concurrent findings of facts of the courts below cannot be interfered with in the exercise of writ jurisdiction. Even otherwise I am of the view that the evidence on record was sufficient on the basis of which the two courts below could have taken the view which they have taken in respect of the presentation of the application.

6. Referring to the contention of Mr. Jafri that the respondent No. 1's case also falls within the ambit of subsections (1) to (4) of sec tion 25‑A, it may be observed that the learned counsel for the respondent No. 1 has also contended that as the resignation was obtained under duress and coercion, it would amount to a dismissal. If the latter con tention is to be accepted, it would follow that the respondent No. 1's case is covered by a specific provision, namely, subsection (6) of section 25‑A and therefore, the general provisions contained in subsections (1) to (4) of the above section shall not be attracted to, as rightly contended by the learned counsel for the petitioner.

7. Reverting to the second contention of the learned counsel for the petitioner that the application under section 25‑A, I. R. O. was not main tainable on the principle of edjusdem generis it may be stated that the above contention is based on the wordings of subsection (6) of sec tion 25‑A which reads as follows :‑ "(6) Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay‑off, lock‑out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employment, which ever is later, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated." According to the learned counsel for the petitioner the word "other wise" appearing after the word "lock out" is to be given restricted meaning as the above general word is preceded by the specific words. In other words according to the learned counsel for the petitioner the above subsection (6) will not cover the case of a resignation as it would not fall within any of the categories specified in the above subsection preceding to the word "otherwise". In support of the above contention the learned counsel for the petitioner has relied upon the following books; (1) Stroud's Judicial Dictionary, 3rd Edn.. Vol. III, pages 2025 and 2028. (2) Craies on Statute Law, 6th Edn., pages 180‑181, Part II. (3) Maxwell on Interpretation of Statutes, 12th Edn., page 299, sub‑para (2). (4) Crawford on Statutory Construction, 1940 Edn., pages 326,

329. He also relied upon the case of Attorney‑General v. Brown (P L D 1953 Pesh. 8) and the case of Mohd. Ihsanullah Khan v. Mohd. Khalilullah Khan ((1920) 1 K B 773). In this regard it will suffice to say that it is a well established principle of interpretation of statute as well of documents that general words which follow specific words must be construed as taking their meaning from the specific words which preceded them and must be restricted to the same genus. The above contention of the learned counsel for the petitioner is so well established that it does not require any reference to any of the cited books or rulings. It is true that a case of resignation will not be covered under subsection (6) of section 25‑A but in the instant case as the finding of the two courts below is that the resignation was obtained by the petitioner by practising duress and coercion the same is not a simplicitor resignation but in fact it will amount to dismissal of the respondent No. 1 from the service. Mr. Jafri the learned counsel for the respondent No. 1 in support of the above legal proposition has relied upon the case of Abraham Reuben v. Karachi Municipality (A I R 1929 Sind 69). In the above case Lobo A J C was pleased to hold that in determining whether a person has resign ed or has been compelled to resign, the correct test is to find, whether the acts and conduct of the servant evidence an intention no longer to be bound by the contract or whether the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employ ment, in the latter case there is a wrongful dismissal and repudiation of the contract and that the use of polite instead of peremptory language would not alter the conclusion. In the above case the employee of the Corporation submitted his resignation as he was asked to submit by the Managing Committee under compelling circumstances and it was held that it was not a voluntary resignation but it amounted to dismissal. If we apply the above principle to the instant case, in that event the respon dent No. 1's case would be covered by subsection (6) of section 25‑A. According to the learned counsel for the petitioner the resignation was voluntary and was not obtained under duress and/or coercion, and that the contrary finding given by the two courts below cannot be sustained as the same is based on surmises and conjectures. The above contention of the learned counsel for the petitioner is overlapping with his fourth contention referred to herein above, and, therefore, I intend to deal with it while dealing with the fourth contention. However, it will suffice to say that the circumstances under which the resignation was tendered were such that it cannot be urged that the resignation was voluntary.

8. Referring to the third contention of the learned counsel for the petitioner that the respondent No. 1 does not fall within the definition of workman, it may be observed that the above contention was two‑fold. The first part of the contention was that the definition of `workman' was amended on 9th February 1973 by Ordinance No. 1X of 1972 whereby the ceiling of Rs. 600 per month wages/salary was substituted by the figure of Rs.

800. According to the learned counsel for the petitioner as the respondent No. 1 had tendered the resignation on 27th December 1972, the definition as stood on the above date should be taken into consideration for the purpose of deciding as to whether the respondent No. 1 falls within the definition of the term `worker or workman'. The second part of his contention was that the respondent No. 1 was acting in the supervisory capacity and, therefore, ha has been expressly excluded by clause (b) of subsection (xxviii) of section 2 of the I. R. O. which defines the terms `worker and workman'. Referring to the first part of his contention, it may be observed that the material date for determining as to whether the respondent No. I comes within the ambit of the definition of worker and workman given in the I. R. O. is the date when he invoked the provisions of I. R. O. by filing an application under section 25‑A of the Act and not the original date when the respondent No.1 had allegedly tendered his resignation. On 9th April 1973, the definition of the worker and workman included a workman drawing salary of Rs. 800 and as the salary of the respondent No. 1 was less than Rs. 800 on that date he was entitled to invoke the provisions of the Ordinance. Referring to the second part of his contention that the duties of the respondent No. 1 were of supervisory nature and, therefore, he was excluded under clause (b) subsection (xxviii) to section 2 it may be stat ed that the finding of the two Courts below is that the respondent No.1's duties were not exclusively supervisory. Mr. Akhtar Mahmood the learned counsel for the petitioner has contended that according to respondent No.1's own assertion in his letter dated 6th January 1973, (annexure to the petition) he comes within the category of a supervisor as he asserted in the aforesaid letter that he was the only all round and experienced and qualified hand and that he had to take great pains to train absolutely raw and fresh hands from schools and colleges. On the other hand the learned counsel for the respondent No.1 has sub mitted that in para. 3 of the application under section 25‑A, the respon dent No. 1 has asserted that he performed the duties of clerical nature such as book keeping, ledger posting, re‑conciliations, preparing trial balances and balance sheets under the instructions supervision and control of the Chief Accountant and the manager and therefore, he cannot be described as being employed in supervisory capacity. The respondent No.1 in his statement before the Junior Labour Court has supported his above assertion. The learned Junior Court has given the following finding on the above point ; "the applicant was an accountant, he had to do his work of book keeping and maintenance of accounts. The accounts clerks under him used to assist him in his work. The nature of his work was clerical. The applicant cannot be considered exclusively as a supervisor simply because he used to check the work of the accounts clerks." The above finding of the Junior Labour Court has been upheld by the labour Court in the appeal in the following words; "The respondent in his evidence has shown that he was responsible for book keeping, reconciliation of accounts, and comparing the main cash book with the cashier's cash book, preparing return sheets and sending proposals to the Management to improve and correct the accounts procedure. He has denied that he ever made inspection of the cashier book or made surprise checks. His duty, however, cannot be called as supervisory in nature nor he was getting the wages exceeding Rs. 800 per mensem. The nature of work he was performing was mainly manual and clerical, and not exclusively supervisory in nature. Under the circumstances I hold that he was a workman." The above finding of the two Courts below cannot be said to based on no evidence or on misreading or misinterpreting of the evidence. The two Courts below were entitled to believe the version given by the respondent No. 1 and, therefore, no exception can be taken to the above finding of the two Courts below in the constitutional jurisdiction.

9. Mr. Jafri the learned counsel for the respondent No. 1 has relied upon the case of Dost Mohd. Cotton Mills Ltd. v. Mohd. Abdul Ghani and another (P L J 1975 S C 358). In the above case the facts were that the respondent was appointed as the Chief Accountant of the petitioner‑Company, who was to act under the instructions of one Mr. Farid Khan, who was given full charge of the accounts section. Their Lordships were pleased to hold that the learned Single Judge of the erstwhile High Court of Sind and Baluchistan was right in holding that the respondent fell within the definition of workman as given in section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance as the chart of duties of the respondent showed that he had no supervisory functions at all. He was asked to act on the instruc tions of said Farid Khan. The High Court judgment impugned in the above Supreme Court case is reported as P L D 1975 Kar. 342, in which it was held by the learned Single Judge that an employee playing second fiddle to another in his branch could not be considered to be employed in supervisory or managerial capacity and that the said servant in order to fall within the category of employer should be responsible only to the owner and should supervise and control the entire establishment and that if any of the two qualifications are wanting the person would not be an employer but a workman. The learned counsel for the respondent No. 1 has also relied upon the case of Pak News Ltd. v. Sind Labour Court (1975 P L C 802) in which Agha Ali Hyder, J. while interpreting the provisions of section 4 of the Newspapers Employees (Conditions of Service) Act, read with section 2 (1) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 held that as the respondent employee was not empowered to rant leave or accept, resignation of any member of the staff and that head no power to hire and fire he could not be excluded from the definition of workman mainly on the ground that he also performed some supervisory functions. I am of the view that the finding of the two Courts below that the respondent No. 1 was a workman was justified on the basis of the evidence. In any case it is a question of fact which cannot be disturbed by this Court in its constitutional jurisdiction unless this Court comes to conclusion that there was no evidence on the basis of which the above conclusion could be arrived at.

10. The last argument of the learned counsel for the petitioner was that the learned two Courts below have misread and misinterpreted the evidence. In support of his above contention, he has drawn my attention to the reasoning given by the two Courts below for holding that the resignation submitted by the respondent No. 1 was not voluntary, it is true that the reasoning given by the two courts below on the above point is not good. However, the question which requires consideration is, as to whether this Court should interfere with concurrent finding of fact in it constitutional jurisdiction even though given on wrong reasoning, but which can be sustained on the basis of the evidence on record. If the evidence before the two Courts below was sufficient to arrive at a finding which they had given in my humble view the same cannot be interfered with under the constitutional jurisdiction mainly on the ground that the reasoning is not correct. In the instant case, it is an admitted position that the resignation was not tendered by the respondent No. 1 in the normal circumstances. According to the petitioner's own witness the respondent No. 1 tendered his resignation along with 3 other employees in the room of the Managing Director where there were 9 persons. It was on the detection of an alleged embezzlement of Rs. 12,371.08 in the peti tioner‑Company. The resignation letter reads as follows :‑ To, The General Manager, U. C. S. C. Ltd., Karachi. Sir, I beg to submit my resignation from service, as I am unable to continue the same. Thanking you. Yours most obediently, (Sd.) (M. AKRAM), Dated : 27‑12‑1972. Accountant Board of Directors. May be accepted with effect from 27‑12‑72 Yes accepted. (Sd.) (Sd.) (Sd.) Director. Director. General Manager, accepted. The above resignation was accepted on the same day. The respon dent No.1 has asserted before the Junior Labour Court that the resigna tion was obtained by the petitioner under duress and coercion by holding out threat. The petitioner's witness Khawaja Ejaz Hussain in his cross-examination has admitted that at the time of submission of the above resignation there were about 9 persons present in the room including the two Directors and that one of the employees viz. Qaiyum (i.e. cashier) who had tendered resignation was still in service as his resignation was not accepted. He has also admitted that the cashier had given an undertaking to pay the amount found short, and in fact he had made certain payments towards the aforesaid shortage. The above undertaking was given on the same day, when the alleged resignation was submitted. It also has been admitted by him that a case of unfair labour practice against the peti tioner Company was pending before the Industrial Relations Commis sion and that the petitioner Company had reinstated 22 workmen who had lodged the above complaint before the Commission. It is also an admitted position that soon after the submission of the resignation the respondent No. 1 had come out with the allegation that his resigna tion was obtained under duress and coercion in the circumstances stated in detail in his letter dated 6th January, 1963 referred to herein above. The fact that the petitioner had also terminated the services of 22 workmen who were taken back by it after the lodging of a complaint with the Industrial Relations Commission indicates that the petitioner Company wanted to reduce the working strength of the workmen. In my view the two Courts below on the basis of the evidence on record could have come to the conclusion that the resignation was not voluntary and was obtained under duress and therefore, the wrong reasoning given by them would not make the above concurrent finding of fact unsustainable in lava. Even otherwise this Court is generally reluctant to interfere with a concurrent finding of fact, in its constitutional jurisdiction. It may be advantageous to refer to the case of Muhammad Hussain Munir v. Sikandar (PLD1974SC139), wherein their Lordships of the Supreme Court while construing the terms `without lawful authority and of no legal effect' were pleased to observe that the above terms are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law, and that it is well settled that where a Court or a tribunal has Jurisdic tion and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. In the instant case, it is not the case of the petitioner that the learned two Courts below had no jurisdiction to decide the question, as to whether the resignation was voluntarily or was obtained under duress, and therefore even erroneous decision on the above point shall not warrant the interference by this Court in its constitutional jurisdiction. In view of the above discussion I find no merit in the above petition and the same is dismissed with costs. Petition dismissed.