SHUJAAT ALI KHAN, J.--- Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner-concern has impugned judgments, dated 29.02.2016 and 14.07.2011, passed by the Punjab Labour Appellate Tribunal, Lahore (respondent No,2) and the Punjab Labour Court No,2, Lahore (respondent No,3), respectively.
2. Unnecessary details apart, the facts, relevant for the disposal of instant petition, are that respondent No,1 was employed as Supervisor Quality Control in petitioner-concern. On 10.06.1998 she was asked to explain her position regarding complaints made by Shazia Ghaus Butt etc. and Mr. Salman Badar. On the basis of said explanation an inquiry was conducted and in view of findings of the inquiry officer she was dismissed from service on 11.07.1998. She agitated her grievance against dismissal from service through a Grievance Petition before respondent No,3, who accepted the same, vide order dated 14.07.2011, against which the petitioner filed an appeal before respondent No,2 but without any success as the same was dismissed through judgment, dated 29.02.2016; hence this petition.
3. The legal formulations put forwarded by learned counsel for the petitioner can be summed up in the words that while submitting reply to the Grievance Petition the petitioner took clear cut stance that as respondent No,1 was performing duties of supervisory nature she did not fall within the definition of workman but both the fora below have not appreciated the said point in its true perspective; that to determine whether a person falls within the category of workman or not mere nomenclature of a post is irrelevant rather the work being performed by him is of vital importance; that though statements of RWs were recorded in presence of respondent No,1 but she willfully avoided to cross-examine them; that as due to behavior of respondent No,1 the working atmosphere of the petitioner was being affected, penal order was rightly passed against her after fulfilling all codal formalities; that to claim back benefits it is incumbent upon an aggrieved person to incorporate in the Grievance Petition that during the interregnum period he was not gainfully employed elsewhere in addition to proving the same through oral assertion while appearing in the witness box; that though the letter issued to respondent No,1 in respect of the allegations leveled against her carried the heading of explanation but the same could not be considered less than a charge sheet thus the requirement of section 15(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance), was duly fulfilled. In support of his submissions learned counsel has relied upon the cases reported as National Bank of Pakistan and another v.
Anwar Shah and others (2015 SCMR 434), Administrator Zila Council, Sahiwal v. Aril Hussain and others (2011 SCMR 1082), Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another (2009 PLC 281), Dilshad Khan Lodhi v. Allied Bank f Pakistan and others (2008 SCMR 1530), Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal. Lahore and others (1993 SCMR 1370), Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others (PLD 1992 SC 118), Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087), Faiz Ahmad and 23 others v. Ahmad Khan and 7 others (PLD 2013 Lahore 234), Dilshad Khan Lodhi v. Allied Bank of Pakistan through President and 3 others (2005 PLC 130) and Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal Pakistan Secretariat. Karachi and another (2000 PLC 274).
4. Conversely, learned counsel appearing on behalf of respondent No,1, while defending the impugned judgments submits that as respondent No,1 was performing duties of manual nature by physically checking the garments and in case of any fault she was to report the matter to the high ups she could not be thrown out of the category of workman; that letter of explanation issued against respondent No,1 cannot be equated with a formal charge sheet as it was to be decided by the competent authority as to whether after receipt of explanation of respondent No,1 there was any need to further proceed in the matter or not; that the case of Administrator Zila Council, Sahiwal (Supra) is not applicable to the facts and circumstances of the present case inasmuch in the said case the petitioner neither lay claim for back benefits in the Grievance Petition nor stated so in his statement before the Labour Court but in the instant case respondent No,1 not only made such prayer in her Grievance Petition but also affirmed during the course of her cross-examination that since her dismissal from service she did not remain gainfully employed elsewhere; that as the complaints which were made basis for initiation of proceedings against respondent No,1 were never produced in evidence by the petitioner, its claim that respondent No,1 was dismissed from service after fulfillment of all codal formalities runs against the record; that when an order regarding termination/dismissal of a workman is found to be illegal he becomes entitled to back benefits as a matter of right; that since respondent No,1 had no power to hire and fire she fell within the category of workman; that RW-1 in his testimony admitted in clear cut words that respondent No,1 had no authority to hire and fire or to initiate disciplinary proceedings against anybody.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case law cited at the bar.
6. It is trite law that to determine the question as to whether anybody falls within the category of workman or not, the duties being performed by said person are of vital importance. In this regard, I stand guided by the verdict of august Supreme of Pakistan rendered in the case of National Bank of Pakistan and another (Supra) wherein it has inter-alia been observed as under:- "The 'worker' and the 'workman' defined in the Act mean person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice The matter came up to this Court and it was held that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman."
RW-1 in closing lines of his cross-examination stated that respondent No,1 neither had authority to hire and fire; to allow leave nor to charge sheet anybody. Thus, respondent No,1 was performing duties of manual nature as checking of a stitched garment is not possible without its physical inspection by the Quality Control Supervisor. Moreover, when respondent No,1 was answerable to her superiors in respect of the work being undertaken by her she cannot be dubbed as exclusive Supervisor in that regard so the findings of the fora below on this point are unexceptionable.
7. It is important to mention over here that section 15 of the Ordinance deals with disciplinary proceedings against a workman relevant portion whereof reads as under:- "15. Punishments.--
(1) A workman may be reprimanded or fined in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936) upto three paisa in the rupee of the wages payable to him in a month, for any of the following acts or omissions, namely:-
(2) ............................
(3) ......................
(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."
According to the afore-quoted provision of law the employer is bound to give specific notice to respondent No,1 regarding the allegations leveled against her but having not done so the petitioner has violated the well acknowledged principle that an act to be done in a particular way cannot be allowed to be deviated in any way. Reliance in this regard is placed on the case reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). Moreover, as per the above-quoted provision of law the employer is bound to hold independent inquiry whereas no such proceedings have been conducted by the petitioner side in the instant case.
8. It is imperative to observe over here that where a subordinate is directed to explain his position qua any particular fact does not mean that a formal charge sheet has been issued rather it is to be decided by the competent authority as to whether the matter is to be further processed or not. In the case in hand the petitioner illegally construed the proceedings conducted on the letter of explanation as those undertaken pursuant to a formal charge sheet.
9. It is very strange to note that though the petitioner has founded his claim on the ground that as there were two independent complaints against respondent No,1, the proceedings were conducted in a right manner. In this regard, I do not find myself in agreement with learned counsel for the petitioner for the reason that non-production of said complaints during the course of evidence carted serious doubt against their authenticity for the reason that when the documents forming basis of the dispute were not brought on record the subsequent superstructure raised on the basis thereof cannot be given legal blanket.
10. The main ground pressed into service by both the fora below, while directing re-instatement of respondent No,1 with back benefits was that she was not issued formal Charge Sheet in terms of section 15 of the Ordinance thus she was deprived of her right to properly defend herself. The said ground was incorporated by respondent No,1 in clause (c) of the prayer part. Thus, petitioner cannot claim that relief could not be granted to respondent No,1 beyond prayer clause.
11.Now coming to the question of back benefits I am of the view that when respondent No,1 categorically denied during her statement before respondent No,3 that she did not remained gainfully employed elsewhere during the interregnum period the onus shifted upon the petitioner to prove otherwise but having not done so the petitioner did not discharge his legal obligation, thus, no exception can be taken against the findings of the fora below on the point of back benefits merely for the reason that claim for back benefits was not taken by respondent No,1 in the body of Grievance Petition rather she asserted so in the prayer clause.
12. Further, concurrent findings recorded by the courts below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not the position in the case in hand. Reliance in this regard can safely be placed on the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073).
13. So far as the case law cited by learned counsel for the petitioner is concerned, suffice it to observe that the same is quite distinguishable from the facts and circumstances of instant case inasmuch as in the case of National Bank of Pakistan and another (Supra), the apex Court of the country has laid law to the effect that to adjudge where an employee falls within the category of workman or not irrespective of the nomenclature of the post, the work being practically undertaken by an employee is considered to be a determinative factor. In the present case, admittedly, the respondent No, 1 's duty was to physically inspect stitched garments and in case of any deficiency, report the matter to the high-ups. Thus the said case instead of lending any support to the petitioner goes otherwise. In the case of Administrator Zila Council, Sahiwal (Supra), the august Supreme Court of Pakistan has held that back benefits cannot be granted in favour of a person when he has not laid specific claim. Moreover, in the said case, the judgment passed by this Court was modified on the ground that issue of back benefits was not properly dilated upon. In the case of Muslim Commercial Bank Ltd. (Supra), the Hon'ble Supreme Court accepted the appeals filed by the Bank on the ground that the respondent being Manager, did not fall within the category of a workman. Insofar as case of Dilshad Khan Lodhi (Supra) is concerned, suffice it to note that the apex Court of the country in the said case has held that employer is duty bound to hold an inquiry to proceed against a workman on account of misconduct whereas in the instant case, learned counsel for the petitioner has admitted that all the proceedings were conducted on the basis of a letter of explanation. Further, the complaints which were very edifice of the entire proceedings, having not been produced in evidence, no sanctity can be attached to the proceedings initiated by the petitioner against respondent No, 1 . In the case of Shahi Bottlers (Pvt.) Ltd. (Supra), the respondent was a Public Relations Officer in the Shahi Bottlers (Pvt.) Ltd. and on account of the duties being performed by him, the findings of the fora below were reversed by the apex Court of the country whereas in the instant case, respondent No,1 being the quality control supervisor, her case cannot be equated with that of Public Relations Officer. In the case of Rana Mukhtar Ahmad (Supra), respondent No,3 was a Senior Foreman thus the said case cannot be relied upon as a precedent in the present case. Insofar as case of Muhammad Bashir and others (Supra) is concerned, the workman was held disentitled for back benefits on account of his contributory role in the dispute which ultimately resulted in proceedings before the labour forums whereas in the instant case, the petitioner miserably failed to bring home guilt against respondent No,1 as it did not produce the most vital document in the shape of complaints made against her. In the matter of Faiz Ahmad and 23 others (Supra), this Court held that the appeal being continuation of the original proceedings, the appellate forum can look into the pros and cons of the case irrespective of the findings of the forums below. In the case in hand, the matter was remanded to respondent No,2 for decision regarding grant of back benefits to respondent No,1, therefore, respondent No,2 could not travel beyond that. Insofar as the case of Dilshad Khan Lodhi (Supra) rendered by the Karachi High Court is concerned, the findings of the Labour Court regarding exclusion of its jurisdiction to adjudicate upon a Grievance Petition filed by the petitioner were upheld on the ground that Incharge Foreign Exchange section of a Bank does not fall within the category of workman whereas in the instant petition the petitioner being Supervisor Quality Control, her status cannot be equated with that of an Incharge of a Foreign Exchange Section of a Bank. As far as case of M/s Crescent Pak Industries Ltd. (Supra) is concerned, a learned Division Bench of Sindh High Court in the said case declared law to the effect that findings of inquiry officer cannot be ignored whereas in the instant case, no regular inquiry having been conducted, no sanctity can be attached to the proceedings conducted on the basis of letter of explanation and that too without production of the complaints allegedly filed against respondent No,l.
14. For what has been discussed above, instant petition is hereby dismissed with no order as to costs.