1990CLC557 (PLP)

2. Respondents contested the suit. The pleadings of the parties gave rise to various issues including the one pertaining to jurisdiction of the Civil Court. The learned trial Court therefore proceeded to decide this issue after hearing the parties and formed the opinion that the jurisdiction of the Civil Court is barred to adjudicate upon the matter between the parties, and consequently returned the plaint to the petitioner under Order 7 Rule 10 C.P.C.

3. Aggrieved there from, the petitioner preferred an appeal, with the Additional District Judge, Mansehra which met the same fate. Hence this revision petition.

4. It may be pertinent to state here that during the pendency of this petition the respondents were proceeded against ex parte and a learned brother of mine Abdul Karim Khan Kundi, J. passed an ex parte order on 28‑11‑1988 .whereby he had accepted the revision petition and remanded the case back to the Court of Senior Civil Judge, Mansehra for trial on merits. Respondents, however, filed a review petition which was heard by me and as per my order dated 21‑6‑1989, on the basis of there being no objection on the part of respondents for hearing this revision petition on merits afresh, the order passed by my learned brother dated 28‑11‑1988 was recalled and the revision petition was restored to its original position to be heard on merits. 5. 1 have heard Abdur Rehman Khan Tanoli, Advocate learned counsel for the petitioner and Mr. Saleh Bin Ahmad Sultan, Advocate learned counsel for the respondents at length and also perused the record. with considerable degree of care.

6. It is contended on behalf of the petitioner that the impugned orders of both the learned lower Courts suffer from infirmity in that the learned trial Court as well as learned appellate Court failed to exercise the jurisdiction vested in them and that the impugned orders are against the provision of Industrial Relations Ordinance, 1969 as contained in section 2 (xxviii) ibid.

7. As against this, the learned counsel for the respondents while supporting, the impugned orders of both the learned lower Courts, maintained that the petitioner falls within the category of a workman as defined in section 2(xxviii) of Ordinance, 1969 and as such both the lower forums were right in holding that they have no jurisdiction and the petitioner should better 'seek his redress from the Labour Court.

8. I have given my serious consideration to the submissions mode by the learned counsel for the parties in support of their respective pleas.

9. Since both the parties rely on the definition of "workman" as contained in section 2 (xxviii) of the Ordinance, a reference to the said definition can be 1 usefully made which reads as under: "S. 2(xxviii)‑‑`Worker'and `workman' means any person not falling within the definition of employer who is employed (including employment as a Supervisor or as an apprentice) in an establishment or industry fur hire reward either directly or through a contractor whether ' the terms of 'employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged; retrenched, laid off or otherwise removed from employment in connection or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off or removal has led to that dispute (but does not include any person:‑ (a) Who is employed mainly in a managerial or administrative capacity, or (b) Who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature". A bare reading of the fore quoted provision would reveal that an exception to the general definition of a `worker' and `workman' has been incorporated in the main provision, and which pertains to such employees as are performing functions in a Managerial or Administrative capacity or person employed in Supervisory capacity but draws wages exceeding Rs.800 per mensem or performs functions mainly of the nature of duties attached to his office or by reason of the powers vested in him.

11. A reference to the plaint shows that the petitioner was serving with the Habib Bank Ltd. in Grade‑I11, was receiving basic salary in the sum of Rs.1,610 per mensem and, at the time his services were terminated, he was senring as Manager in the New Darband Branch of the Bank. From the written statement Submitted by the respondents, although a preliminary objection has been taken regarding the want of jurisdiction of the trial Court yet the averment, in paragraphs 1 and 2 of the plaint, has been replied simply in negative in so far as the factum of his holding the office of a Manager and the stress was rather more on the remaining part of the paragraph. The pleadings of the respondents, therefore, hardly give any guidance towards arriving at any conclusive decisions as regards the status of the petitioner in that his Managerial status has not been clearly controverted nor the circumstance suggest otherwise than what has been averred by the petitioner in his plaint. This being so, one can safely presume that B working as a Manager of a branch of the respondents, the case of the petitioner rather falls in the exception clauses of section 2 (xxviii) of the Ordinance Accordingly under section 25‑A of the Ordinance, only a worker can bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force before a Labour Court. Such being the situation, I have no hesitation in holding that both the Courts below have not correctly interpreted the law on the subject by holding the petitioner a `workman' and their impugned orders are liable to be set aside.

12. Resultantly this revision petition is accepted, the impugned orders of both the learned lower Courts arc set aside and the case is hereby remanded to the Court 'of Senior Civil Judge, Mansehra for trial of the suit on merits.

13. Need I mention that the suit was filed on 12‑5‑1984, and it has taken more than 5 years and the petitioner apparently stands where he was when he sought justice from a Court of law. It should have been better if, instead of throwing out the suit on preliminary objection, the same should have been decided on all the issues arising out of the pleadings including the one of jurisdiction. This practice of throwing out a case on preliminary objection should normally be avoided by the trial Courts and should provide opportunities to both C the parties to bring all such material on the record which may make possible for Ithe superior Courts to finally decide the matter once for all. 14. 1 hope the learned Civil Judge as well as the appellate Court, in exercise of their original as well as appellate jurisdictions, shall keep this principle in view so as to avoid denial of justice by delaying justice. H.B.T./941/P Case remanded.