1990 PLP 19 (PLC)

Mohammad Shafi for Respondent No.

2. Date of hearing: 12th April, 1989. AJMAL MIAN, C.J.‑‑This petition is directed against the order dated 9‑12 1980, passed by respondent No.l, in Appeal No. KAR‑666/1980, allowing the respondent No.2's appeal and setting‑aside the order dated 27‑8‑1980, passed by the learned Vth Labour Court at Karachi.

2. The brief facts leading to the filing of the above petition are that the petitioner was employed by respondent 2 as the Incharge Operator. It appears that his services were terminated on 24‑9‑1979 by serving a month's notice. The petitioner, being aggrieved by the above order, after serving a grievance notice, filed an application under section 25‑A of the I.R.O. The above application was resisted by respondent 2 on two grounds, namely, (1) that respondent had not employed 20 or more workers at the relevant time and, therefore, the provisions of the Standing Orders Ordinance were not applicable, and (2) that the petitioner was not a workman in terms of section 2 of (1) of the Standing Orders Ordinance. However, the learned Labour Court, after recording the evidence, allowed petitioner's application by the aforesaid order dated 27‑8‑1980 and granted the relief of reinstatement without back benefits. Respondent 2, being aggrieved by the above order, filed the aforesaid appeal, which was allowed on the above two grounds. The petitioner, being aggrieved by the above order, has filed the present petition.

3. In support of the above petition, Mr. Ali Amjad, learned counsel for the petitioner, has vehemently urged as follows: (i) That the learned Sindh Labour Appellate Tribunal has misconstrued section 4‑A of the Standing Orders Ordinance inasmuch as the requirement of law is that the employer should have employed during the last 12 months on any date 20 or more workmen and not during the 12 months. (ii) That the finding that the petitioner was not a workman is contrary to the evidence on record, particularly keeping in view the certificates issued by respondent 2 themselves, describing the work of the petitioner.

4. Adverting to the above first submission of the learned counsel for the petitioner, that the learned Sindh Labour Appellate Tribunal has misconstrued section 1(4)(a) of the Standing Orders Ordinance inasmuch as the requirement of law is that the employer should have employed during the last 12 months on any date 20 or more workmen and not during the 12 months. It may be observed that he has referred to section 4‑A of the Standing Orders Ordinance, which in fact supports his contention that in order to make the provisions of the Standing Orders Ordinance applicable the requirement of law is that the employer should have employed 20 or more persons on any date during the relevant year. It is not necessary that the employer should have 20 or more workmen during the continuous period of relevant one year. We are, therefore, inclined to agree with the learned counsel for the petitioner on the above point.

5. As regards the second submission that the learned Labour Appellate Tribunal has concluded that the petitioner was not a workman contrary to the evidence on record, it may be observed that there were different pieces of evidence before the learned Appellate Tribunal which inter alia include the certificates which were issued by the employer to the petitioner and‑which are filed alongwith the above petition, namely, certificate dated 2‑4‑1978, certificate dated 6‑4‑1978, and certificate dated 17‑12‑1977, certifying that the petitioner had been assisting a qualified licence holder boiler attendant and was working on the chillier which consumes steam from the boiler for generating the solution. It has been vehemently urged by Mr. Ali Amjad that in presence of the above certificates, it could not have been concluded by the learned Labour Appellate Tribunal that the petitioner was not a workman. It will suffice to observe that the learned Sindh Labour Appellate Tribunal has appraised the entire material on record and on the basis of the same preferred the other piece of evidence. The question whether the petitioner was a workman or not, was mainly a question of fact which could have been determined with reference to the duties of the g petitioner which have been discussed in the impugned order. In our view, in the exercise of constitutional jurisdiction, we cannot set aside the above finding of fact.

6. The petition is, therefore, dismissed, but there will be no order as to costs. H.B.T./I‑89/K Petition dismissed.