1983 PLP 96 (PLC)

Statement of Mr. Muhammad Rafiq Ahmad son of Rehmat Ullah Awan, Officer Grade‑II, United Bank Ltd. Circle Officer, Lahore, on S. A :‑‑ I was drawing Rs. 1,500 p. m. from the respondent bank inclusive of all allowances. My pay/wages were Rs. 900 p .m. and the remaining amount of Rs. 600 p.m. was in the nature of allowances. There were three clerks working under me. The work of the clerks was to make relevant entries regarding cash receipts in the ledger. My duty was to supervise those clerks and to see whether they are properly maintaining the ledger and entries have been correctly recor ded therein. Thereafter, the ledgers were placed before the Manager of the bank and ultimately the vouchers were passed by him." This writ petition calls in question the judgment, dated 19th October, 19x2, of the Punjab Labour Appellate Tribunal, whereby the order terminating the services of the petitioner had been upheld by setting aside the decision, dated 26th April, 1980, of the Punjab Labour Court No. 1, on the ground that the petitioner was not covered by the of "Workman" given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance).

2. The brief history of the case is that in April, 1979, Badami Bagh Branch of the United Bank Ltd. was inspected. During the course of inspection, certain irregularities were detected. Mr. Abdul Hamid Khokhar was the Controller of the said Branch at the relevant time and the petitioner was serving there as officer Grade‑II. In consequence of the inspection report, the Controller was directed to explain the irregulari ties. The allegations were that temporary over‑drafts of an amount exceeding Rs. 25,00,E were advanced to 33 parties without obtaining proper guarantees from them and the documents relating to 10 PADS involving an amount of Rs. 600,000 was handed over to the importers without receiving payments.' The explanation of Mr. Abdul Hamid Khokhar was found unsatisfactory. A departmental inquiry was held into the whole affairs and eventually, the management decided to redesig nate him as an officer Grade‑I. It may, be pointed out that Mr. Abdul Hamid Khokhar placed the entire responsibility of his acts or omissions to the other officers or staff of the branch. Thereafter, the petitioner was also charge‑sheeted on 7th June, 1979. The charges against the petitioner were in pari materia with the charges levelled against Mr. Abdul Hamid Khokhar. The petitioner submitted his explanation stating therein that he was not responsible directly and that he had been working under the control of Mr. Abdul Hamid Khokhar. He took up the plea that whatever was done by him was in the interest of the bank and that, in any case, the amount had already been recovered from the parties and the bank had earned huge profits. The explanation was not found satisfactoty. Departmental inquiry was held into charges levelled against the petitioner and, eventually, his services were terminated on 27th November, 1979. The petitioner approached the Labour Court on 22nd January, 1980 (Annexure " A") for the rederss of his grievance under sec tion 25‑A of the Ordinance. The petitioner stated in para. 1 of Annexure "A" that "the petitioner was an employee in Grade‑II of the said bank The petitioner has no hiring and firing authority". The respondent bank resisted the application on merits and also took a number of preliminary objections including the objection that the petitioner was not a "work man" either under the Industrial Relations Ordinance, 1969 or under the Standing Order Ordinance and as such, he could not seek redress under section 25‑A of the former Ordinance. In support of the application, the petitioner appeared as his own witness in the Labour Court and on behalf of the respondent bank, the statement of Ghulam Mustafa was recorded who was appointed as Enquiry Officer. In view of the evidence before it, the Punjab Labour Court No. 1, vide its decision dated 26th April, 1980, accepted the petition and set aside the order of termination of the petitioner with back benefits. The preliminary objection raised by the respondent bank was overruled, and the Labour Court held: "The cases of Officers Gr. I, Or. II and Gr. III have been examined by this Court in similar petitions. These cases related to Grindlays Bank, Allied Bank and United Bank Limited. In all these cases, it was held that Officers Gr. I to Gr. III are workers within the meaning of Industrial Relations Ordinance as well as Standing Orders Ordinance. It was held in these cases that the nature of duties of an Officer of a bank is clerical and so he is a workman. In this view of the matter, I hold that the petitioner is a work man." On merits, it was held that no independent inquiry was conducted against the petitioner as the Enquiry Officer, Ghulam Mustafa, Controller, acted as prosecutor in the connected case of Abdul Hamid Khokhar which resulted in prejudice to the petitioner and as such it could not be treated that any independent inquiry was held. Accordingly, the order of dismissal /termination was set aside. Against this decision, the respondent bank filed an appeal before the Labour Appellate Tribunal which was accepted vide judgment, dated 19th October, 1982, on the ground that the petitioner was not a workman within the meaning of section 2 (xxviii) of the Ordinance.

3. The learned counsel for the petitioner contends that the Punjab Labour Appellate Tribunal has misconstrued the provisions of section 7 (xxviii) of the Ordinance in not treating the petitioner as "workman", inasmuch as, the petitioner was neither falling in the definition of "employer" nor was he employed in the managerial or administrative capacity. Learned counsel submits that there is no evidence on record to show that he was employed in supervisory capacity and drawing wages exceeding Rs. 800 p.m.‑ He further submitted that the petitioner, in his statement before the Labour Court, categorically stated that he was ,working as Officer Grade‑II and the Manager of the Branch was Abdul Hamid Khokhar but no question was put to him during the cross‑exami nation that he was employed in supervisory capacity or that some staff was working under him. It was further submitted that no question was put to the petitioner that he was drawing wages more than Rs. 800 and that the mere fact that the petitioner was receiving Rs. 1,500 inclusive of all allowances would not ipso,facto lead to the conclusion that he was drawing wages more than Rs. 800, in that, in terms of section 2 (VI) of the Payment of Wages Act (Act No. IV of 1936), wages do not include the value of any house accommodation, supply of light, water, medical attendance or other amenity or of any service excluded by general or special order of the Provincial Government and any travelling allowances or the value of travelling concession. He further submitted that it is proved from the evidence adduced by the parties on record that the petitioner could not serve a charge‑sheet nor could he suspend or employ any person, the petitioner was acting under instructions of the Manager of the branch and, therefore, the onus was upon the respondents Nos. 1 and 2 to prove that the petitioner was not a "workman" which they had failed to discharge. In Support of his contention, learned counsel has placed reliance on Dost Muhammad Cotton Mills Ltd. Karachi v: Muhammad Abdul Ghani and another (P L D 1975 Kar. 342). The Supreme Court refused to grant leave against the judgment vide Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 S C M R 304) Reliance was also placed of Bashir A. Malik v. The Punjab Labour Court (Northern Zone), Lahore and 2 others (P L D 1973 Lah. 594). In support of his contention that where a person is covered by the definition of a "workman", and also performs a supervisory function that by itself, would not exclude him from the definition of "workman.". No evidence has been led by the parties before the Labour Court as to the precise nature of duties of Grade‑II Officer. I have perused the statement of the petitioner recorded .by the Labour Court (Annexure "C") with the assistance of the learned counsel for the petitioner. On the point in controversy, the petitioner merely‑stated :‑‑ "I was Officer Grade‑II in U. B. L. at Badami Bagh Branch, Lahore. The Manager of the Branch was Mr. Abdul Hamid Khokhar." The respondents witness, Ghulam Mustafa (Annexure "C" page 26 of the Paper Book) stated :‑ "I know the petitioner. He was working as Officer Grade‑H in Badami Bagh Branch of our Bank. He was posted as Second Officer. His duty was to supervise work of others. His wages were Rs. 1,500 inclusive of all allowances. In the absence of the Manager he has to act as Manager of the Branch." During cross‑examination, the witness deposed :‑‑ "The petitioner can grant leave but I have no such circular at present. He cannot serve a charge‑sheet. He cannot suspend any person. He cannot employ any body."

4. The sole question involved in this petition is whether the Labour Court had no jurisdiction to entertain the application of the petitioner under section 25‑A read with section 2 (xxviii) of the Ordinance, as the petitioner was not a "workman". There can be no cavil with the proposition of law advanced by the learned counsel for the petitioner that if the petitioner is held to be a "workman" within the meaning of the Ordinance, the order of the Labour Court could not have been interfered with in appeal on this legal ground. If, however, the petitioner is held not to be a "workman", the entire proceedings before the Labour Court were coram non Judice under section 25‑A of the Ordinance. Needless to add that in terms of Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973, which has been saved by the Provisional Constitution' order, 1981, no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. In case of dispute about the status of an employee, the matter can only be adjudicated by the Labour Court after recording evidence of the parties and the answer to the question would depend upon the circumstances of each case with reference to the definition given in Section 2 (xxviii) of the Ordinance. The status of an employee within the meaning of the Ordinance does not depend upon the designation or salary simpliciter but the criteria is as to what duties are performed by him. This is basically a question of fact and a finding of fact recorded by a Tribunal of an exclusive jurisdiction is not open to challenge except in cases of no evidence, mis‑reading of evidence, bad faith, mis‑direction or failure to follow the prescribed procedure etc. Reference may be made to Rashim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973SC24). in the instant case, the Labour Appellate Tribunal, in view of the evidence before it, recorded a finding of fact that the petitioner was not performing the duties of a "workman". This finding is supported by a bare perusal of the statement of the respondent's witness, namely, Ghulam Mustafa, Controller. The learned counsel for the petitioner is unable to show that the Labour Tribunal committed any illegality in the matter of apprecia tion of evidence and on this short ground alone, the writ petition merits dismissal.

5. Be that as it may, the learned counsel for the petitioner vehe mently stated that in view of the finding of fact recorded by the Labour Court; Grade‑II Officers of the respondent bank are performing functions of purely clerical nature. Suffice it to say that the Labour Court has not particularised the decision in which this finding of a general nature was given and, therefore, the observation made in generality cannot be taken into consideration. Furthermore the judgments of the Labour Court in other cases per se were not binding on the Labour Appellate Tribunal. The Appellate Tribunal is under a statutory obligation in terms of section 37 (3) of the Ordinance to independently decide an appeal preferred before it against any decision of the Labour Court under section 25‑A of the Ordinance. Under section 38 (3), the Labour Appellate Tribunal may on appeal confirm, set aside, vary or modify the decision given under section 2j‑A of the Ordinance and to exercise all powers conferred by the Ordinance on the Labour Court save as otherwise provided. Even otherwise, it is a settled law that an appeal is in continuation of the original proceedings and an appellate Court is competent to pass any order which the trial Court ought to have passed. This being so, the mere fact that the Labour Appellate Tribunal ignored the general observations made by the Labour Court in other cases would not in any way affect the validity of its judgment.

6. The sole object of writ jurisdiction is to foster justice and not to perpetuate an illegality. Thus visualised, in order to ascertain further and better particulars of the matter in controversy, the statement of the petitioner who claims to be M.A.,LL.B. has been recorded in terms of Order VI, rule 5 of the Code of Civil Procedure principles of which are applicable to writ proceedings. Refer Hussain Bakhsh v. The Chief Settle ment Commissioner, Rawalpindi (1). ,The statement of the petitioner reads thus :‑ "I was drawing Rs. 1,500 p. m. from the respondent bank inclusive of all allowances. My pay/wages were Rs. 900 p. m. and the remaining amount of Rs. 600 p.m. was in the nature of allowances. There were three clerks working under me. The work of the clerks was to make relevant entries regarding cash receipts in the ledger. My duty was to supervise those clerks and to see whether they are properly maintaining the ledger and the entries have been correctly recorded therein. Thereafter, the ledgers were placed before the Manager of the bank and ultimately the vouchers were passed by him." It is also clear from the statement of the petitioner recorded by me that the petitioner was not a "workman" and in my view, the Labour Appellate Tribunal rightly held that the respondent was not a "workman" and, therefore, no exception can be taken to the impugned order. The! precedents cited by the learned counsel for the petitioner are distinguish able as they relate to the definition of workman under section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, (VI of 1968), whereas the instant case relate to the interpreta tion of the "workman" as defined in Section 2 (xxviii) of the Ordinance. It is proved on record that the petitioner was responsible for the supervision of the clerks under him and he was in any case, an officer or person concerned with the management of the affairs of the Badami Bagh Branch of the United Bank Ltd. and, therefore, his case clearly falls within the ambit of section 2 (viii) (b) and (e) of the Ordinance which‑reads thus :‑. "2(viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑ (b) any person responsible for the management, supervision and control of the establishment ; (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof." The term establishment as defined in Section 2 (ix) reads thus :‑ 6(ix) 'Establishment' means any officer, firm, industrial unit, under taking, shop or premises in which workmen are employed for the purpose of carrying on any industry ; and except in section, 22EE, includes a collective bargaining unit, if any, constituted under that section any establishment or .group of establish ments. I am, therefore, clearly of the view that the petitioner was not a workman within the meaning of the Ordinance: The burden of proof in regard to the question whether a person is or is not a workman is on such person who invokes the jurisdiction of the Labour Court under section 25.A of the Ordinance. Thus, the onus was on the petitioner to prove that he was a workman which he has failed to discharge. The learned Appellate Tribunal has given a very exhaustive and eliminating judgment as to the scope of the definition of "workman" envisaged by section (xxviii) of the Ordinance. I am in full agreement with it.

7. For the reasons stated above, the writ petition fails and is hereby dismissed in limine. Petition dismissed.