IJAZ AHMAD CHAUDHRY, J.- The petitioner was serving as Junior Officer with respondent No. 2. He was retired from service on 10th of January, 1982 and he filed grievance petition u/S. 25-A of Industrial - Relations Ordinance, 1969 before the Punjab Labour Court No. 2, Lahore and the petition was accepted vide judgment dated 24th of March, 1984. Respondent No. 3 filed an appal against the said order before the Punjab Labour Appellate Tribunal, Lahore which was also dismissed vide judgment dated 12th of November, 1984. Respondent No. 3 transferred the petitioner from Lahore to Peshawar on 30th May, 1984 during the pendency of the appeal before respondent No. 1. Thereupon the petitioner again served a grievance notice on 7th of June, 1984, but respondent No. 3 issued a show-cause notice for' disciplinary action against the petitioner on 10th of July, 1984 which was replied on 14th July, 1984. Thereafter, the petitioner was served an inquiry notice on 29th November, 1984 wherein the inquiry was said to be held at Peshawar. The petitioner moved an application that he cannot go to Peshawar and requested the management to hold the inquiry at Lahore instead of Peshawar. But the inquiry proceedings^were taken and concluded without joining the petitioner in the said inquiry and ex parte order was passed and the services of the petitioner were terminated vide order tJa. Ted. 1 3.2.1 985.
2. The petitioner served a grievance notice on 5th of May, 1985 and the petitioner was constrained to file a petition before the Punjab Labour Court No. 2, Lahore on 2nd of June, 1985. This petition was returned for want of territorial jurisdiction by the learned Presiding Officer and it was also held that the petitioner was not a Workman. The petitioner filed an appeal before the learned Punjab Labour Appellate Tribunal, Lahore respondent No. 1, and the learned Appellate Tribunal accepted the appeal vide order dated 23.9.1987 and set aside the order dated. 5.7.1987 passed by the Punjab Labour Court No. 2. Feeling aggrieved respondent No. 2 filed W.P. No. 5243 of 1987 which was dismissed vide judgment dated 22.3.1992 and the case was remanded back to Labour Court for decision on merits. The writ petition was dismissed only on the ground that the Labour Court at Lahore had the territorial jurisdiction but the question of workman was not decided by the Punjab Labour Court and it was also not discussed in the judgment of this Court while disposing of the writ petition.
3. This petition was accepted by the Punjab Labour Court No. 2 vide order dated 25.10.1993 and re- instated the petitioner with back benefits. Respondent No. 3 instead of allowing the petitioner to join duty at Lahore, again directed him to report for duty at Sikandar Abad District Mianwali. The petitioner after the said order filed a petition under Section 25- A(8) of I.R.O, which forced the respondent No. 3 to provide him duty at Lahore. Respondent No. 3 also filed an appeal against the order dated 25.10.1993 before the learned Punjab Labour Appellate Tribunal, Lahore who vide judgment dated 25.1.1996 accepted the appeal which is impugned in this writ petition. The petitioner was relieved from service vide order dated 29.1.1996.
4. Learned counsel for the petitioner contends that the judgment to the extent of declaring the petitioner not as workman is illegal and unlawful as in the earlier litigation vide order dated 24.3.1984 the learned Presiding Officer, Punjab Labour Court No. 2 Lahore had declared the petitioner as workman and this order was challenged before the Punjab Labour Appellate Tribunal, Lahore which was upheld by the Appellate Tribunal, and the said order was in the field and the learned Appellate Tribunal has wrongly held that the petitioner was not a workman. According to him, as the earlier order had attained the finality and there was no change in the status of the petitioner, hence, he was workman, It is further contended that show-cause notice dated 10.7.1984 is based on the conception that the petitioner was a workman and he was working under the labour laws, and the petitioner was treated under the standing order by treating him as workman, It is further contended that respondent No. 3 never agitated the point that the petitioner was not a workman in W.P. No. 5243 of 1987 filed by him. It is also pointed out that the learned Appellate Tribunal has wrongly held that the order dated 5.7.1987 was not in the field which was the latest order and that order was upheld by the Labour Appellate Tribunal as well, It is further submitted that the learned Appellate Tribunal has wrongly held that the petitioner was not workman and if the petitioner was not workman there was no need to discuss the merits of the case, It is further contended that acts of the respondents Nos. 2 and 3 were with mala fide intention as the petitioner has been repeatedly transferred inspire of the orders in his favour by the Court of competent jurisdiction. The petitioner was witness in the inquiry being conducted against G.A. Qureshi and when G.A. Qureshi was re-instated in his service, he dismissed the petitioner from service due to the reason that the petitioner appeared as witness in the inquiry proceedings against him and dismissal order bears his signature. He has relied upon 1992 PLC 1116 to support his contention that the show-cause notice was issued by the employer under the labour laws thus the petitioner had to be treated as a workman.
5. Learned counsel for respondents Nos. 2 and 3 at, the very outset without conceding the merits, contends that the petitioner during the period of his removal from service had attained by age of superannuation and only the monitory benefits can be given to the petitioner in case this petitioij. Is accepted and Whether the petitioner is workman is the basic question which is to be decided.
Learned counsel for the respondents has contended that the mala tides alleged against ex- Managing Director are un-founded as the order of retirement was passed by the ex-Managing Director with his signature on 10.1.1982 which was set aside subsequently and was no more in the field while the orders impugned before the Labour Court in the petition in hand were not passed or signed by the ex- Managing Director and this petition which arises out of termination order dated 13.2.1985 had no connection with ex-Managing Director, hence, the plea of mala fide is un-founded.
It is further contended that the petitioner was not a workman and the previous order which has been referred by the learned counsel for the petitioner is not sufficient to hold that the petitioner was workman as he himself when appeared as PW-1 has stated that he was member of the Officers Association and workman cannot become member of Association, hence, situation was changed and the previous decision cannot be relied upon, It is further contended that whether the petitioner was workman is mixed question of law and fact and no res judicata in applicable to such question, hence, the petition was not rightly entertained by the Labour Court, It is further contended that the petitioner was charge-sheeted and the ground that the show-cause notice was barred by time is un-founded as the issuance of show-cause notice due to absence is recurring cause of action which continues and the issuance of notice in such circumstances had wrongly been declared as illegal by the Labour Court or barred by time, It is further contended that as far as the proceedings initiated against the petitioner under I.R.O., 1969, those will not make him the workman if he otherwise does not fall within the purview of definition of workman hence, the argument of learned counsel for the petitioner cannot be accepted. The petitioner's case was of master and servant and not time was fixed for the serving of the charge-sheet, It is further contended that even if the time is calculated the show-cause notice had been issued within 22 days and no fault has been made in the inquiry, thus the inquiry cannot be held as without lawful authority and the order cannot be set aside, It is further contended that under Section 25A of the I.R.O, the remedy is not on facts and cannot be availed by a workman as a matter of right while the petitioner had no right to remain 'posted at Lahore, hence, no right has been infringed and the petition u/S. 25-A of the I.R.O., 1969 was not maintainable, It is further contended that appraisal of evidence is not required at the time of decision of the writ petition.
6. On the other hand, learned counsel for the petitioner in reply has state that show-cause notice was sent after elapse of one month as the petitioner became absent on 7.6.1984 and notice was issued on 10.7.1984, hence, one month and 3 days' delay was fatal as the delay of one day was not condoned by this Court in the case reported in PLD 1990 Lah. 298.
7. I have heard the learned counsel for the parties and also perused the documents attached with this petition, In the earlier round of litigation this question was raised by the respondents Nos. 2 and 3 that the petitioner was holding supervisory post and was not a workman and he was promoted as Junior Officer. The Labour Court vide order dated 24.3.1984 held that the petitioner was a workman though he was designated as Junior Officer. When respondent No. 3 filed an appeal against the said order the same question was raised that the petitioner was not a workman and the learned Trial Court had wrongly held so and this objection was also taken-up by the learned Appellate Tribunal, vide order dated 12.11.1984 whereby it was held that the petitioner was workman as the witnesses produced by respondent No. 2 admitted that the petitioner was not working on any supervisory post and was doing the job with his own hard. In the second round of litigation against His^objection*n' was raised by respondents Nos. 2 and 3 that the petitioner was not workman but the learned Trial Court relying upon the previous orders passed by the learned Labour Court and also by the learned Appellate Tribunal held that the petitioner was a workman.
The respondents Nos. 2 and 3 filed writ petition in which the ground was taken according to which a worker can bring his grievance in whose jurisdiction he was working and where the head office in situated, hence, it was admitted by respondent No. 2 that the petitioner was a workman and this writ petition was disposed of by holding that the Labour Court had the territorial jurisdiction and the Labour Court was competent to decide the same, In the 3rd round of litigation the learned Labour Court vide judgment dated 25.1.1996 accepted the petition and the objection of respondents Nos. 2 and 3 that the petitioner was not a workman was rejected due to the earlier decisions of the Labour Courts and the learned Appellate Tribunal and that of High Court. The learned Appellate Tribunal on the ground that the petitioner was member of Junior Officers Association and was not workman, no doubt when the petitioner earlier filed petition even in the first round he 'was Junior Officer but the learned Labour Court upto the level of Appellate Tribunal had consistently held that the job of the petitioner was that of workman and not of officer and was not of supervisory nature. The learned Appellate Tribunal in the impugned judgment dated 25.1.1996 has only declared that the petitioner was workman due to the abovesaid statement which I do not find as sufficient to hold that the petitioner was workman and he cannot set aside the earlier decision of the learned Appellate Tribunal and that of High Court in writ petition, which has attained the finality and status and the postings of the petitioner has not at all changed during this period. In such circular\stances the findings of the learned Appellate Tribunal seems to be incorrect. I am also convinced that the petitioner was teated as workman by respondent No. 3 by issuing show-cause notice to him under I.R.O., 1969 and in such circumstances, when respondents Nos. 2 and 3 had themselves treated the petitioner as workman and proceeded against him under the labour laws, it cannot be said that the petitioner was not workman and was an officer due to the abovesaid reasons, In such circumstances, judgments of the learned Punjab Labour Appellate Tribunal is set aside by accepting this petition by holding that the petitioner is a workman. As the learned Punjab Labour Appellate Tribunal had accepted the appeal of respondents Nos. 2 and 3 by not treating the petitioner as worker, this case is remanded back to it for decision afresh on merits.