2001 PLP 737 (PLC)

JAVED IQBAL, J.‑The petitioner seeks leave to appeal against judgment dated 27‑3‑2000 whereby the Constitutional petition filed by the petitioner has been dismissed and order passed by learned Labour Appellate Tribunal has been upheld.

2. Briefly stated the facts of ‑ the case are that Nafees‑ul‑Hassan Siddiqui (respondent No. 1) was employed by the petitioner in their establishment as Ramp‑Coordinator on 1st May, 1982, arid his services were terminated on 12th June, 1985 on the ground of inefficiency and poor performance. The respondent No. 1 approached Sindh Labour Court at Karachi but his application preferred under section 25‑A of I.R.O. was dismissed with the observation that he did not fall within the definition of 'workman'. Being aggrieved an appeal was filed before Sindh Labour Appellate Tribunal which was accepted vide order, dated 2‑3‑1998. The petitioners challenged the said order in High Court of Sindh at Karachi by means of Constitutional Petition No.229 of 1998 which has been dismissed.

3. It is mainly contended by Mr. Qamar‑ul‑Islam Abbas, Advocate Supreme Court on behalf of petitioner that learned High Court and Sindh Labour Appellate Tribunal have failed to appreciate that there could be employees who may neither be workmen nor employers under Standing Orders Ordinance but there is a third category and respondent belonged to it. In this regard reliance has been placed on PLD 1986 SC 103 + 1998 SCMR

644. It is also urged with vehemence that respondent is not a workman and has been performing the managerial and supervisory duties which aspect of the matter escaped notice and resulted in serious miscarriage of justice. It is also contended that learned High Court has not correctly appreciated the evidence which has come 'on record and the dictum as laid down and reported in PLD 1986 SC 103 and 1998 SCMR 644 has been ignored.

4. Respondent No. 1 appeared in person and supported the orders of Labour Appellate Tribunal and High Court by giving his job description. He contended that he was a workman for all practical purposes.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the order passed by Labour Appellate Tribunal and impugned order. We have also gone through the dictums as laid down in PLD 1986 SC 103 + 1998 SCMR

644. We are not persuaded to agree with the prime contention of Mr. Qamar‑ul‑Islam learned Advocate Supreme Court that respondent No. 1 falls within the third category as per the dictum laid down in PLD 1986 SC 103 + 1998 SCMR 644 for the simple reason that the said contention was never agitated either before learned Labour Appellate Tribunal or High Court and moreso, it was never the case of petitioner that respondent belongs to a 'Third Category of Employee' and altogether a new plea cannot be allowed to be raised before this Court. 1n this regard we are fortified by the dictum laid down in following cases:‑‑ 1990 CLC 1659 + 1989 CLC 604 + 1981 CLC 1514 + PLD 1976 Kar. 1078 + PLD 1973 LA. 829 + 1980 SCMR 280 + 1982 CLC 2518 + 1982 SCMR 497 + PLD 1964 Dacca 460 + PLR 1964 Dacca 848 + PLD 1963 Kar. 343 + PLD 1962 Kar. 785 + PLD 1957 Dacca 392 + 1983 SCMR

954. The question as to whether respondent is a workman or not being question of fact has been decided on the basis of an indepth scrutiny of evidence by the learned Labour Appellate Tribunal and the High Court vide impugned order and also finds support from the following precedents:‑‑ Abdul Razaq v. Ihsan Sons Ltd. (1992 SCMR 505). Rehmat Ali v. The Security Paper Mills Ltd. and another (PLD 1982 Kar. 913). The job description given by the respondent was never challenged which makes it abundantly clear that he was predominantly performing manual work and by no stretch of imagination can be termed as Manager or Supervisor taking him out from the definition of 'workman' as correctly determined by the learned Labour Appellate Tribunal and High Court. No evidence worth the name could be led by the petitioner showing that respondent was performing the duties of managerial or supervisory nature. He was never appointed in a supervisory or managerial capacity. Let we mention here at this juncture that this Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous and when the Legislature does not choose to confer a right of appeal against that C decision, it would be defeating its purpose and policy, if a superior Court were to re‑hear the case on the evidence, and substitute its own findings, unless exercise of the power by such Tribunal was in violation of some provisions of law or in excess of jurisdiction or which suffered from failure to exercise jurisdiction. In this regard the following authorities can be referred:‑‑ PLD 1981 SC 522 + 1982 SCMR 684 In the light of foregoing discussion, we are of the considered opinion that no illegality or irregularity whatsoever has been committed by o the forums below and impugned order being free from any legal infirmity does not call for any interference .and accordingly the petition being devoid of merits is dismissed. Q.M.H./M.A.K/S‑96/S Petition dismissed.