Through this writ the petitioner wants this Court to declare judgment dated 15.12.2007 passed by the Punjab Labour Court No. 9 Multan and judgment dated 02.02.2010 passed by Punjab Labour Appellate Tribunal Lahore in appeal FAO No. 79/2008 filed U/S. 47(3) of Industrial Relation Ordinance, 2002 as illegal, void and Corum non-j udice.
2. Facts giving rise to this petition are that the petitioner company issued an advertisement in the newspaper for recruitment of Public Relations Officers. After written examination and interview by the selection Board, Abid Sarwar Respondent No. 1 was appointed as Assistant Public Relations Officer in the office of MEPCO/petitioner on 13.05.2003 in BPS: 16 viz (Rs. 3805-295-12855) for initial period of one year from the date of assumption of charge. Pay was chargeable to the post of Junior Engineer (T.R) MEPCO HQ till the creation of post by the authority. After giving one month notice, his service was terminated} w.e.f 15.10.2006 under clause-m of offer of appointment issued by MEPCO dated 08.05.2003. Respondent No. 1 filed grievance petition U/S. 46 of I.R.O 2002 in the Punjab Labour Court No. 9 Multan which was accepted on 15.12.2007. Against this decision, appeal was filed by MEPCO/petitioner before Lahore High Court Multan Bench Multan which was transferred to the Punjab Labour Appellate Tribunal Lahore due to the Enactment of Industrial Relation Act 2008 from where the appeal of the petitioner was also dismissed on 02.02.2010.
3. Learned counsel for the petitioner contends that the grievance petition of Respondent No. 1 before the Labour Court was not competent because he does not fall under the definition of worker as given in Proviso No. XXIX of Section 2 of I.R.A 2008 as he was an officer of Grade-16. The point of jurisdiction was specifically raised by the petitioner before the trial Court and the appellate Court but they did not advert to this question of law at all Grievance petition of Respondent No. 1 was also not maintainable in view of clause (h) of the contract of appointment letter dated 13.05.2003 which was undisputedly accepted by Respondent No. 2. Said clause' reads as under: "(h) You will be governed by Removal from Service (Special Powers) Ordinance 2002 as amended from time to time."
It is contended that any person aggrieved by final order passed under R.S.O 2000, appeal Whereof shall be competent before the Service Tribunal and not the Labour Court. However, both the Courts below have taken no notice of it. Appeal of the petitioner was also dismissed by the Punjab Appellate Tribunal Lahore on the technical ground that the petitioner has not put his signatures on the memo. of appeal and the power of attorney issued by Deputy Manager (Legal) was unidentified. It was also wrongly held that the filing of appeal was governed by the Labour Courtaules ignoring the fact that the appeal was filed before the Lahore High Court Multan Bench Multan under the High Court Rules and Regulations.
In support of his contention learned counsel for the petitioner relied upon PLD 1975 Supreme Court 678, 1992 SCMR 1974, 1993 SCMR 363, 1994 SCMR 1555, PLD 1995 Supreme Court 406, PLJ 1997 SC 1371, 2001 SCMR 1320, 2002 PLC 1, 2002 PLC (C.S) 1, 2005 SCMR 1603, 2005 SCMR 1603, 2007 SCMR 229, 2007 SCMR 229 and PLJ 2009 Tr.C, (Services) 169.
4. Conversely, learned counsel for Respondent No. 1 contested this writ and contended that since after his appointment in the year 2003, Respondent No. 1 is performing his duties up to the complete satisfaction of the petitioner. Nota single explanation/show cause notice has been issued to him till to date which speaks of honest performance of duty by him. It was the duty of the petitioner to write press releases with his own hand and to hand over the same in the offices of the newspaper for its publication for the public at large. He used to perform field duties. No subordinate staff was under him. He has also no power of hire and fire. This being so, Respondent No. 1 is a workman under I.R.O 2002, Standing Order Ordinance, 1960 and under all other Labour Laws. The petitioner has not framed statutory service rules for their employees/workers. As such service of the Respondent No. 1 is being governed under the Labour Laws. After completion of one year service, Respondent No. I was retained in service by the petitioner on regular basis. Being worker/workman, he rightly approached the Labour Court for reinstatement of his service which was decided in his favour. Aggrieved with this decision, the petitioner filed an appeal before the Punjab Appellate Tribunal Lahore which was not signed by the petitioner. Learned counsel for the petitioner was not authorized to file appeal under his own signatures. So the Punjab Labour Appellate Tribunal Lahore rightly dismissed the appeal of the petitioner. The petitioner has not so far taken any action against Respondent No. 1 under R.S.O 2000. This being so, Service Tribunal was not the proper forum for Respondent No. 1 for redressal of his grievance.
In support of his contention, learned counsel for Respondent No. 1 relied upon PLJ 1975 SC 358; 1986 PCL 1057, 1988 SCMR 1664, 1989 PLC 628, 1992 PLC 86, 1997 SCMR 1128, PLJ 1999 SC 2431, 2001 PLC 506, 1994 PLC 610, 1995 SCMR 1655, PLD 2005 Karachi 478, PLJ 2007 SC 706, 2008 PLC 319. Ordinance XVII of 2000 Removal from Service (Special Powers) Ordinance, 2000. The Companies Ordinanc 1984, Judgment of Punjab Labour Appellate Tribunal Lahore in Appeal No. 368/1993 in case titled Allied Bank of Pakistan Limited, Karachi, through its Attorney Vs. Muhammad Abdullah Chaudhary', Judgment in FAO No. 198 of 2004 of Lahore High Court Multan Bench Multan, Judgment in FAO No. 143/L of 2005 of Lahore High Court Multan Bench Multan titled `Shakeel Ahmed Vs. Allied Bank of Pakistan Limited through its President and 3 others', Judgment in L.A No. 56/2007 of Lahore High.
Court. Bahawalpur Bench Bahawalpur titled "Chief Executive MEPCO etc. Vs. Zulfiqar Ahmad Kanjoo etc. and Judgment of the Supreme Court of Pakistan in Civil Petition No. 2760/2004 titled 'Muslim Commercial Bank Ltd and others Vs. Rana Najam-ul-Haq and another'.
5. I have given my anxious consideration to the arguments advanced by both the learned counsel for parties and have also gone through the record.
6. In order to determine the status of any employee to be a workman, his designation and salary is immaterial. The true test is not to go by his designation but to see the nature of his duty. A person may be designated as an officer but the nature of his duties can be manual or clerical. Thus, he would fall within the definition of worker/workman. Respondent No. 1 has proved before the Labour Court that he had been performing manual/clerical duties. In his statement RW-1 Muhammad Bilal Superintendent Admn. Branch MEPCO admitted that Respondent No. 1 was not enjoying any power of hire and fire. He was not enjoying the power of charge sheeting any one. In this way status of Respondent No. 1 as worker/workman is established. In PLJ 1975 SC 358 Dost Muhammad Cotton.
Mills Ltd. Vs. Muhammad Abdul Ghani and another', on the basis of evidence Chief Accountant was held to be workman. In 1988 SCMR 1664 'Allied Bank of Pakistan Ltd Vs. Muhammad Humayun Khan and others', on the basis of evidence. Bank Manager was held to be workman. In 1997 SCMR 1128, WAPDA Vs Muhammad Muhammad Ashraf Naeem', persons connected with generation, transformation and supply of electricity were treated as "Workman". In PLJ 1999 SC 2431 Mustehkum Cement Limited Vs Abdul Rashid and others', on the basis of evidence Manager was held to belong to the category of workers. In 2001 PLC.506, 'Messrs Plasticrafters (Put.) . Ltd. Vs. Muhammad Farooq and others'. Incharge of the Department was held to be worker on the basis of evidence. In 1994 PLC 610, 'Lever Brothers Pakistan Limited. Karachi Vs Mrs. Kishwar Sultana Khan', Secretary of the company in Secretarial Group was held to be worker on the basis of evidence. In 1995 SCMR 1655.
Waseem Ahmad Chaudhary vs. Chairman Punjab Labour Appellate Tribunal Lahore and 4 others', an officer in grade-III with the bank was adjudged to be workman on the 'basis of evidence.
After going through the documents appended with the writ I am not in agreement with the contention of the learned counsel for the petitioner that since his appointment in 2003 till to date, the Respondent No. 1 was working against a non-existing vacancy. It is evident from the statement of RW-1 that no extension order was made in the service of Respondent No. 1 nor surety bond was taken from him during the service. Continuous performance of duty of Respondent No. 1 against Assistant Public Relations Officer, negates the contention of the petitioner that he was recruited only for one year term It further show that Respondent No. 1 was accommodated against regular post. In his written statement before the Labour Court No. 9 Multan, the petitioner never took the objection of R.S.O 2000. Even otherwise since the induction of Respondent No. 1 in the service of the petitioner in 2003 till to date the petitioner has not initiated any action against him under R.S.O 2000. Hence, the objection of the learned counsel for the petitioner regarding the applicability of R.S.O 2000 in the case of Respondent No. 1 is misconceived. R.S.O 2000 is a special law. All decision of the Labour Court were appealable U/S. 47(3) of the I.R.A 2002, therefore, the question of applicability of rules of Lahore High Court does not arise. Respondent No. 1 being worker/workman filed grievance petition before Labour Court No. 9 Multan. Same was accepted with 50 % 'back benefit. Either party preferred labour appeals before Lahore High Court Multan Bench Multan. Same was ultimately decided by the Punjab Labour Appellate Tribunal on 02.02.2010 by way of dismissing the same. Against the order/judgment of Punjab Labour Appellate Tribunal Lahore in respect of rejecting his appeal against reinstatement, the petitioner filed writ petition whereas he has filed no petition before this Court regarding maintaining 50% back benefit of the Respondent No. 1 through independent appeal. Perusal of the record shows that the petitioner has not signed the labour appeal decided by Punjab Labour Appellate Tribunal which was signed by the counsel himself without having any authority from the power of attorney issued by incompetent and unidentified Deputy Manager (Legal) MEPCO Multan. Along with the appeal learned counsel also signed the accompanying affidavit himself. Such type of practice is not allowed even in the High Court. This act and conduct of the petitioner cannot be ignored under the garb of "mere technicalities". It goes to the very root of appeal and its maintainability. In 1989 PLC 628 (Lahore High Court) 'Messrs Rahwali Sugar Mills. Vs Punjab Labour Appellant Tribunal and other', it has been held as under:- :Apart from merits the view taken by the Labour Appellate Tribunal of the appeal before it was incompetent also appears to be sound. The appeal was filed by the learned counsel in whose favour power of attorney was executed by one C.A Khan whose designation and capacity till today remains undisclosed. No effort was made at any stage before the Court either by filing a fresh power of attorney executed by competent person nor an application was submitted for rectification. No exception can, therefore, be taken to the view which prevailed with the Punjab Labour Appellate Tribunal while dismissing the appeal as being unauthorized. In view of what has been stated above, this petition fails and is hereby dismissed. The parties are however, left to bear their own costs."
According to 1992 PLC 86 (Karachi High Court), 'National Bank of Pakistan Vs Sindh Labour Appellate Tribunal Karachi and another', "Appeal not signed by employer but by his counsel--Maintainability of--Appeal against order of Labour Court, was dismissed by Tribunal on ground that same was signed by Advocate of employer/appellant and not by appellant himself---Right of appeal U/S. 37(3) of Ordinance, having been given in a very restricted form, same could be preferred only by "aggrieved party"-- Appeal was rightly dismissed by Tribunal not being maintainable in circumstances."
It has been laid down in PLD 2005 Karachi 478 that, "S.32--Suit by company--Authority to sue- Plaint in the suit filed on behalf of the company was signed by its Assistant Manager Legal and it was nowhere mentioned in the plaint that how and in what manner Assistant Manager was legally authorized on behalf of the Company without a proper Board Resolution for the purpose--Plaint was however appended with an authority from the Managing Director of the Company to file suit by the Assistant Manager Legal which again had nowhere disclosed/mentioned as to how the Managing Director of the Company could exercise power of delegation of authority on behalf of the Company, unless he was so empowered by the Articles of Association of the Company or there was some Board Resolution in his favour for the purpose with further power of delegation of powers on behalf of the Company--Non-conferring of proper authority on behalf of the company through Board Resolution in favour of the Assistant Manager legal who had instituted the suit on behalf of the Company, in circumstances, would result in incompetence of suit and thus same was not maintainable."
The citations relied upon by the learned counsel for the petitioner are not attracted to the facts and circumstances of this case.
In these circumstanced, both the Courts below were right and within their jurisdiction in allowing the grievance petition of Respondent No. 1. There appears no illegality or material irregularity in the impugned judgments passed by the Courts below. This being so, writ petition filed by the petitioner has no force which is accordingly dismissed.