2011 PLP 292 (PLC)

UMAR ATA BANDIAL, J.

The petitioner has come before this Court on the ground that a Full Bench of learned NIRC vide its judgment dated 31-8-2009 has held the petitioner not to be a workman because he is occupying the post of a branch manager. Learned counsel for the petitioner submits that as stated in para No.1 of the writ petition the petitioner is a manager of a two men branch and such a branch has been held by the Hon'ble Supreme Court in National Bank of Pakistan v. Punjab Labour Court No.7 (1992 SCMR 1891) and Allied Bank of Pakistan v. Muhammad Hamayun Hussain (1988 SCMR 1664) to be a workman on account of nature of duties performed by him. On this question he submits that the learned NIRC should have directed the recording of evidence in order to determine the status of the petitioner under the Labour Laws.

2. Learned counsel for the respondent has relied on Javaid Hussain Naqi v. Member Board of Directors, M.C.B. and others (2009 PLC 260 SC), National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672 to assert that a claimant who occupies the office of a branch manager ceases to be a workman irrespective of the size of the branch. Accordingly, he submits that even as a manager of a two-men branch the petitioner is not a workman and therefore disentitled to approach the learned NIRC for relief. Further submits that the condition of alleging unfair labour practice, namely, that the claimant is a member or office-bearer of a trade union is not met in the present case. The petitioner approached the learned NIRC on a mere apprehension although no transfer order was passed against him.

3. The ratio decidendi of the 1992 SCMR 1891 and 1988 SCMR 1664 has not been disapproved by the Hon'ble Supreme Court in its subsequent precedents relied by the learned counsel for the respondent. Consequently, the rule laid down in the said judgments still holds good. Therefore, in a case where it is alleged that on account of being a manager of a two-men branch, the nature of duties of a claimant is such as to bring him within the definition of a workman, then the plea would require the recording of evidence about the nature of his duties.

4. In the present case, however, it is noted that apart from the bare assertion made in the writ petition, no documentary material supporting the pleas taken by the petitioner both about the nature of his duties and as to his status as a member or office-bearer of a trade union is attached thereto. It is the same position in the petition filed before the learned NIRC.

5. On petitioner's appeal filed against an interim order dated 29-4-2009, the learned Full Bench of the NIRC has by its impugned order dated 31-8-2009 directed outright dismissal of the petitioner's case pending before the learned Single Member. The ground of dismissal of the main petition is its non-maintainability, namely, that the petitioner was not a workman because he was a manager of branch. That point of locus standi depends on factual premises of the case. These may differ with each case and need to be determined by a finding of fact given in the light of law laid down by the Hon'ble Supreme Court in the NBP and the ABL cases which draw a dividing line on the point of standing for example in relation to a two-men branch. Consequently, the learned counsel for the petitioner is justified in claiming that outright dismissal of the petitioner's petition by the learned Full Bench of NIRC was inappropriate.

6. However, on a consideration of the record, it is correct that the petitioner's plea for interim relief is not made out. This is because from the documents on record no inference can be drawn that the petitioner is a workman with reference to the nature of his duties nor that he has the legal status to claim the commission of unfair labour practice before the learned NIRC. Both questions turn upon factual findings whereas the learned NIRC by its impugned judgment has given the same without granting the petitioner an opportunity to lead evidence.

7. Accordingly, the impugned order is not justified on the record and in the circumstances of the case. The petitioner has a right to establish his factual claims to establish locus standi on the criteria laid by case-law by leading evidence. However, since locus standi based on the factual allegations of being a workman and a member or office-bearer of a trade union is still to be established, therefore, there is no ground to grant interim relief to the petitioner.

8. Consequently, the impugned order is set aside. For resolving the controversy on petitioner's standing and, if need be its merits, the matter is remanded to the competent bench of the learned NIRC.

9. Petition disposed of. H.B.T./M-937/L Case remanded.