1988 PLP 642 (PLC(CS))

‑‑‑Ss.2(viii)(d), 25‑A & 38(3)‑‑Grievance petition‑‑Cause of action and nature of duties of petitioner, were two different things‑‑Petitioner declared as "employer" under S.2(viii)(d) of Act XXIII of 1969‑ Petitioner aggrieved of his transfer‑‑Transfer order challenged on ground of mala fides due to alleged victimization for trade union activities‑‑Labour Court observing that petitioner having been declared as "employer" had no cause of action‑‑Order of Labour Court, set aside in appeal by Appellate Tribunal and case remanded for re‑decision after opportunity of evidence to parties as regards nature of duties of petitioner whether he belonged to category of supervisory, secretarial, directional or agency staff and that he could be declared as "employee". H.R. Haider for Appellant. Ahmad Fazal for Respondent. Date of hearing: 246 May, 1987. In the appeal captioned above the decision dated 11‑2‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No.2 Lahore has been challenged, whereby the grievance petition of the appellant has been dismissed holding that there was no cause of action.

2. For holding that the appellant has no cause of action it has been observed by the learned lower Court that he is not a workman as he has been declared as an employer vide Notification No.S.W.23‑/76 dated 25‑8‑1977. The plea that one has no cause of action is quite different from the nature of his employment such as whether he is a workman or an employer. Even a workman may not have any cause of grievance against the order passed against him. The finding that the appellant is an employer and not workman, therefore, could not be a ground for saying that he has no cause of action. The appellant was transferred and he challenged the said order on the ground of mala fides stating that for his trade union activities he was victimized. According to the assertions made in the grievance petition, the petition did disclose a cause of grievance. The notification referred to above was issued under a special provision contained in clause (d) of subsection (8) of section 2 of the Industrial Relations Ordinance, 1969, wherein employer has been defined. The foremost condition given in the provision referred to above is that the persons who have been declared as employers by notification should belong to the superior, managerial, secretarial, directional, supervisory or agency staff. No doubt, the post held by the appellant was declared by the notification, referred to above, to be in the category of employer, but still it was to be proved by the respondent that the appellant belonged to superior, managerial, secretarial, directional, supervisory or agency staff. Unless an opportunity had been afforded to the parties to produce evidence, neither the respondent nor the appellant could prove that the post held by the appellant fell in such category and that a notification for declaring it as employer could be issued.' The learned lower Court has itself observed that no evidence was produced. The order sheet shows that after framing the preliminary issues arguments were invited and no date was fixed for evidence. This being so, the learned lower Court was not justified in saying that no evidence was produced.

3. As a result of what has been said above, the appeal is accepted and setting aside the impugned decision of the burned lower Court, the case is remanded for redecision after allowing both the parties to produce relevant evidence. A. E. /366/Lb.P Case remanded.