1993 PLP 165 (PLC)

MAMOON KAZI, J.‑‑‑The petitioner is aggrieved by the decision of the learned Labour Appellate Tribunal dated 22‑7‑1985, holding that the number of employees employed by respondent No. 1 was less than 20 and consequently, the provisions of Standing Orders Ordinance were not applicable to the case.

2. Briefly stated, the facts of the case are that services of the petitioner were terminated by respondent No.

1. He filed a grievance petition before the learned Labour Court which was decided on 5‑8‑1980. The learned Labour Court dismissed the grievance petition on the ground that the petitioner was not a "workman" within the meaning of the Standing Orders Ordinance. Being aggrieved by such decision the petitioner filed appeal before the learned Labour Appellate Tribunal which dismissed the appeal on the ground that the number of employees employed by respondent No. 1 was less than 20 and as such the provisions of Standing Orders Ordinance were not applicable to the case. Reliance was placed by the learned Labour Appellate Tribunal upon a memorandum of settlement which showed that there were 14 categories of employees working with the said respondent in January, 1979 when the said settlement was arrived at between respondent No. 1 and its workmen.

3. While challenging the aforesaid decision, Mr. Muhammad Nawaz Abbasi has argued that the evidence recorded by the learned Labour Court indicates that there were more than 20 workers employed by respondent No. 1 during one year prior to the impugned action taken against the petitioner and the findings of the learned Appellate Tribunal are based on misreading of evidence.

4. So far as the finding of the learned Labour Appellate Tribunal that the number of workmen employed by respondent No. 1 during the said period was 14 the same prima facie appears to be erroneous because the memorandum of settlement upon which reliance has been placed by the learned Tribunal only refers to 14 different categories of workmen employed at the relevant time by respondent No.

1. We have also perused the finding which was recorded by the learned Labour Court on this point. Although, according to the petitioner, the number of employees employed by respondent No. 1 at the relevant time was about 30 but this evidence was disputed by the respondent's witness Muhammad Waseem Jan, according to whom the number of employees employed was less than

20. However, during his cross‑examination the said witness deposed as follows:‑‑ "There were 14 categories of the employees showed in the said agreement. Our hotel runs from 10.30 to 12 night daily. The workers do not work in shifts. We have two cooks One Khamirgar and one Nanwala. It is a fact that it is incorrectly written in the agreement dated January, 1979 that there was Parathawala in our Restaurant. There were four persons including the contractor who used to make Parathas. No separate Kababwala was working in our Restaurant. Nanwala and Tandoorwala was one and the same person. There were four persons, who used to make Tikkas, Kababas and Parathas. There was only one Assistant Cook in our Restaurant. There were, about 5 waiters, in our Restaurant. There was only one Pantry man. There were about 3 dish washers in our Restaurant. There was no separate Pankhawala but he was included in these four persons who used to make Parathas, Kabab Tikka. Masalchi and Disshawesher is one and the same person. There was no Assistant Tandoorwala in those days in our Restaurant. I do not know as to why the name of the Assistant Tandoorwala was mentioned in the agreement. There was no Helper cook in our restaurant. I do not know as to why the name of Helper cook was mentioned in the agreement. There were 16 tables in our restaurant. There are two more tables in our restaurant which are lying outside the room. One waiter looks after about 5 to 6 tables. We issue cash memos/bills to every person. It is not necessary that every bill is signed by the Manager or the Proprietor of the Restaurant. No body in our restaurant signs the bills or cash memos. It is correct to suggest that the name of the waiter and its number is written on every bill. The waiters work inside the restaurant including those two tables which are lying outside the Restaurant. The waiters also look after the outside persons. There are two waiters who work on commission basis. They are paid 3 per cent commission. We do not maintain any separate account in respect of the commission which is paid to the waiters, who were on commission basis. We obtained the signatures of the waiters on vouchers at the time of payment of commission to them. It is not possible for me to produce the bill book of the restaurant pertaining to 1973. Every worker works in our Restaurant for about 8 hours. We have no Chowkidar for our Restaurant. In September and October, 1978 one Ismadar was given the contract of Parathas, Tikkas and Kababas by me, and he left after four months. In April or May; 1979 the persons of the contractor were employed by me. The persons of the contractor were being paid by me regularly till April 1979 when they submitted one application to the effect that either they should be appointed or relieved on the pretext that Isamdar had not yet returned and that they were getting good jobs somewhere else and therefore I employed them."

5. The cross‑examination of the said witness, Muhammad Waseem Jan, makes it doubtful whether the number of, employees employed by respondent No. 1 was less than 20‑ as stated by him in his affidavit‑in‑evidence. We, however, feel that the entire evidence requires proper scrutiny by the learned Appellate Tribunal in order to arrive at a conclusion whether the employees employed by respondent No. 1 were 20 or less. If such number was less than 20 then obviously the provisions of Standing Orders Ordinance would not be applicable to the case. However, this important issue has not been dealt with properly by the learned Labour Appellate Tribunal and the same is evident from the observations earlier made by us in this judgment.

6. In the result, we allow this petition and remand the case to the learned Appellate Tribunal for a fresh decision. Unless the learned Labour Appellate Tribunal once again arrives at a conclusion tat the provisions of Standing Orders Ordinance are not applicable to the case of the petitioner, it shall give its findings on the merits of the case touching all the issues involved in the case. The parties are left to bear their own costs. H.B.T./I‑209/K ?????????????????????????????????????????????????????????????????????????????????? Petition allowed.