Through this constitutional petition, petitioner has called in question impugned order dated 09.03.2021 passed by the learned full Bench of N.I.R.C., whereby appeal filed by respondent Nos. 2 to 4 against the petitioner has been allowed. Through the said impugned order, order passed by single member of N.I.R.C. dated 08.08.2019, whereby petitioner 's grievance petition had been accepted to reinstate her into service with back benefits, has been set aside.
2. It is contended by learned counsel for the petitioner that learned full Bench of N.I.R.C. wrongly assumed that petitioner was not 'workman' to declare petitioner 's grievance petition as not main tainable inasmuch as petitioner was appointed as Traffic Assistant and terminated from service as such, hence, for all intents & purposes, petitioner fell in the definition of 'worker ' or 'workma n' as provided in the Industrial Relations Act, 2012 ("the Act"), therefore, impugned order was not sustainable.
3. On the other hand, learned counsel appearing on behalf of respondents by controverting the arguments of learned counsel for the petitioner has defended the impugned order by inter alia stating that petitioner had herself mentioned in her statement recorded as witness before N.I.R.C. that she has been holding the post of Supervisor and about 20 to 25 people were working under her, therefore, she enjoyed managerial status and did not fall within the definition of 'workman'.
4. Heard, record perused.
5. Brief facts as narrated in the instant petition are that the petitioner joined Shaheen Airport Services as Traffic Assistant on 16.01.2012 as employee on daily wages. Later on, her services were converted into contractual employment vide letter dated 26.09.2015. The petitioner mainly performed the duties of, counter checking, issuing boarding cards, crew handling, passenger handling, aircraft loading and off-loading, baggage segregation, baggage services, etc. Neither the petition er had any authority to hire or fire nor had authority to grant leave to any employee. No subordinate was working under her supervision when her service s were terminated. By virtue of duties being performed by the petitioner , she fell within the definition of 'workman'. In view of afore-referred facts mentioned in the petition, the order passed by full Bench of N.I.R.C. is under challenge before this Court.
6. Claim of the petitioner is that she is 'worker '/'workman' and N.I.R.C. had jurisdiction to entertain her grievance petition whereas claim of the respondents is that she does not fall within the definition of 'worker '/'workman' hence, N.I.R.C. lacks jurisdiction to entertain the grievance petition filed by the petitioner . Learned single Bench of N.I.R.C. treated the petitioner as 'workman' whereas the learned full Bench of N.I.R.C. treated her services as not falling within definition of 'workman'. Definition of 'workman' is provided under Section 2(xxxiii) of the Act which is reproduced below: "S.2 In this Act, unless there is anything repugnant in the subject or context, ____ (xxxiii)"worker" and "workman" mean person not falling within the definition of empl oyer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharg e, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity ."
7. Case of the respondents is that petition er was working as Supervisor in terms of her own statement recorded as witness before learned single Bench of N.I.R.C., therefore, her services do not fall within the definition of 'workman' and the same are included in definition of 'employer ' provided under Section 2(ix) of the Act, which is reproduced as below: "S.2 In this Act, unless there is anything repugnant in the subject or context, ____
(i) .........
(ii) ........
(iii) ......
(iv) ......
(v) ......
(vi) .....
(vii) ....
(viii) ...
(ix) "employer" in relation to an establishment, means any person or body of person, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes____ a) an heir , successor or assign, as the case may be, of such person or body as aforesaid; b) any person responsible for the management and control of the establishment; c) in relation to an establishment run by or under the authority of any department of the Federal Government, the authority appointed in this behalf or , where no authority is so appointed, the Head of the department; d) in relation to an establishment run by or on behalf of a local authority , the officer appointed in this behalf, or where no officer is so appointed, the chief executive officer of that authority; e) in relation to any other establishment, the proprietor of such establishment and every director , manager , secretary , agent or officer or person concerned with the management of the affairs thereof; (x)......"
8. In order to better appreciate the real controversy in issue, it is imperative that the letter dated 26.09.2015 through which petitioner was appointed as Traffic Assistant on contract basis is taken into consideration, which is reproduced as below: "SHAHEEN AIRPORT SER VICES Room # 108, Multan International airport Multan MUX/319/1/Emp 26 September , 2015 Miss Sana Sohail Khan T raffic Assistant EMPLOYMENT WITH SHAHEEN FOUNDA TION
1. I am pleased to inform that you have been appointed as Traffic Assistant as SAPS Multan on contract for a period of one year with effect from 01 September , 2015. Your service will be governed by Shaheen Foundation Policies & Service Rules, as amended from time to time. Additionally , you will be required to discharge your duties in accordance with the Job Description prescribed for this post with devotion, dedication and commitment.
2. The detailed terms & conditions of your appointment are as follows:- a. Monthly Salary:- You will be paid a fixed salary of Rs. 15,750/- pm (all inclusive). b. Duties & Responsibilities:- You are to perform duties and responsibilities assigned to you by Shaheen Foundation. c. Probation. You will be on probation for three months. During probation, your services can be terminated without any notice or assigning any reasons. d. Working Hours. You will observe the working hours notified by Shaheen Foundation. However , you will be required to finish your day' s work every day . e. Termination of Contract . Your contract can be terminated by Shaheen Foundation on violation of any of the terms & conditions of employment on your part; or even without assigning any reason at any time by serving one month' s notice or by paying on month' s salary in lieu thereof. Similarly , you may leave service on one month' s notice or surrendering one month' s salary in lieu thereof. f. TA/DA. As per S-1 (ii) grade. g. Leave. You are entitled for 10 days casual and 10 days sick leave. h. Transfer . You may be transferred anywhere in Pakistan as per the requirement of Shaheen Foundation.
However , you will not make any request/representation for your posting to any other station. i. Discipline. Being a beneficiary of Shaheen Foundation, you are not entitled to engage, take part in any political or trade union activities whatsoever , or enter into any private business during the period of your service with Shaheen Foundation, failing which, your service with Shaheen Foundation shall be terminated immediately and furthermore you will be barred to avail any benefit from Shaheen Foundation in future. You will also be liable to make good the loss or damage, if any, caused to Shaheen Foundation due to collusion, connivance, aid and abetting, criminal breach of trust, etc. j. Confidentiality . All matter , information, knowledge, skills and intellectual property relating to the Foundation's business are to be treated as "CONFIDENTIAL" and are not to be communicated to any unauthorized person during the period of service with Shaheen Foundation. Moreover , after your service with Shaheen Foundation, you will remain Bound not to divulge any such information, intellectual property to any other person or organization until a period of one year after your release from Shaheen Foundation.
3. You may sign the duplicate copy of this letter as your acceptance of the above terms and conditions and return the same latest by 28 September , 2015 and submit Engagement Proforma (duly filled), 03 PP size photographs and photocopy of CNIC to the Head Of fice by 30 September , 2015.
Group Captain Waleed Qureshi (R)
Deputy General Manager Shaheen Airport Services Multan."
9. The perusal of the afore-referred letter shows that the petitioner was appointed as Traffic Assistant, none of its conditions mentioned that she was to work as Supervisor . Her termination letter dated 30.03.2017 also shows that she has been treated as Traffic Assistant and not as supervisor . The said letter is also reproduced below:- "Ref: HOSAPS/15/8/1/AHR 30 March, 2017 Ms Sana Sohail Khan SAPS # 9808, T raffic Asstt PO ST . Nawan Shaher H.No. 707/A Moh: Baghban Multan RELEASE FROM SER VICE
1. It is to inform you that your services are no longer required and your contract employment with Shaheen Foundation is hereby terminated with effect from 01st April, 2017 as per the terms and condition of your Employment Contract dated 26th September , 2015.
2. Please be informed that you will be paid one month' s pay in lieu of 30 days notice thereof, beside other emoluments, which are due and payable up to the date of termination from Finance Department after completion of necessary clearance formalities.
With Regard, Group Captain SYED MUHAMMAD ALI (Retd) Additional Director (Admin & HR) For Executive Director SAPS"
10. In addition to the above, the entire correspondence with the petitioner relating to disciplinary action as well as relating to letter of explanation issued to her also referred her as Traffic Assistant, however , the learned full Bench of N.I.R.C., while relying upon cross-examination on her when she appeared as PW-1, treated the petitioner as Supervisor i.e. 'employer ' to exclude her from definition of 'worker '/'workman', relev ant portion of cross-examination is reproduced below:- "I am graduate. I was given appointment letter on 04-01-2012. It is correct that I was appointed as a daily wager . I was again employed on contract basis for one year on 01-09-2015. During my appointment as daily wager I had been working as Shift Traffic Assistant. My duties were changed as Supervisor Shift Incharge in June, 2015 when I was still a daily wager . My nature of duties remained as Supervisor Shift Incharge after my appointment on contract basis. During my duties as Supervisor Shift Incharge about 25 employees were working under me. It is incorrect that at the time of my termination dated 30-05-2017 I was working as Supervisor Shift Incharge. Volunteered that prior from my termination, the then DGM Shaheen Airport Services called my junior Muhammad Aamir and asked him to take charge of Supervisor Shift Incharge and he also advised the said perso n to allocate further work to me.
After my demotion, I worked for about 06 months. In those days none was work ing under me rather I was also working under Muhammad Aamir , the then Supervisor Shift Incharge. I signed my contract appointment letter after perusal. It is correct that I was issued about 15 explanation letters during my service. Volunteered that the total length of my service was 07 years and I was given explanation letters only during the tenure of Mr.Ibne Waleed, DGM during the period from August, 2016 to my termination. Mr. lbne Waleed, DGM was my immediate boss during the said period. I had received my termination letter by post probably during the last week of March, 2017. I received - my last pay in February .2017. After getting contract my duty hours were 09.00 am to 05.00 p.m. variables on flight to flight basis. It is incorrect that during my job I had been suffering from health issues due to which I was not regular . It is incorrect that I have deposed falsely ."
11. On the basis of the above, in its order dated 09.03.2021, learned full Bench of N.I.R.C. set aside the order of learned single member of N.I.R.C. and dismissed the grievance petition of the petitioner in the following terms: "The respondent/petitioner has failed to prove that as per his designation falls within the definition of a worker/workman, the respondent has neither mentioned in his grievance petition the nature of his duties nor has produced any evidence to substantiate that he is a worker . Mere designation is not sufficient to determine the status of the person in terms of the IRA, 2012. The learned single Member has committed error by directing the appellants to reinstate the respondent by ignoring the basis/fundamental principle which has by now settled that the worker firstly has to allege that he is a worker by narrating his duties and then establish his duties through cogent and valid evidence. From perusal of the impugned order it is clearly evident that the learned single Member has nowhere in the impugned order , it is declared that the respondent was a worker or discussed his evidence establishing that he was a worker . The respondent has failed to demonstrate through evidence that he is a worker or workman and himself has admitted during cross examination that he was posted as Supervisor Shift In-Charge after his appointment on contract basis and twenty five workers were under him. Now it is a well settled law that NIRC can assume the jurisdiction only in the case the person before it is a worker or workman. The learned single Member has erred to decide the grievance petition in favour of the respondent in the absence of any evidence which in the ordinary course sufficient to establish that the respondent was a worker or workman. In these circumstances it is established that the respondent is not a workman and is a Manger being Shift In-charge, hence the learned single Member has erred in passing the above order . In these circum stances the rulings cited by the appellants advocate are applicable to this case and has supported his case whereas the ruling cited by the respondent advocate are distinguishable and are not applicable to this case and have not supported his case, In these circumstances the learned single Member has no jurisdiction to decide the grievance petition of the respondent.
11. We therefore set-aside the order dated 08-08-2019 passed by the learned single Member in the above grievance petition, accept this appeal and return the grievance petition. The respondent is at liberty to approach the proper forum and avail the proper remedy in this regard, with no order as to cost."
12. The perusal of the afore-referred order shows that appeal filed by the respondents was allowed by treating the petitioner as Supervisor/Employer by placing reliance on her statement and cross- examination recorded as PW-1, however , order passed by learned full Bench has not taken into consideration that petitioner stated in her cross- examination that she remained on the post of Supervisor for a limited period and six months prior to her termination, she was demoted to her original position (i.e. Traffic Assistant) and one Muhammad Amir, an employee junior to the petitioner , had been made Supervisor under whose supervision petitioner was working when her services were terminated. At the cost of repetition, the said portion of cross-examination is reproduced below: "It is incorrect that at the time of my termination dated 30-05-2017 I was working as Supervisor Shift Incharge.
Volunteered that prior from my terminatio n, the then DGM Shaheen Airport Services called my junior Muhammad Aamir and asked him to take charge of Supervisor Shift Incharge and he also advised the said person to allocate further work to me. After my demotion, I worked for about 06 months. In those days none was working under me rather I was also working under Muhammad Aamir , the then Supervisor Shift Incharge."
13. The afore-referred aspect of the statement in cross-examination does not appear to have been taken into consideration by the learned full Bench of N.I.R.C. while passing the impugned order by referring to earlier portion of cross-examination in piecemeal which is not permissible as it is settled by now that to reach a just conclusion in the matter , the entire evidence is to be read as a whole and not in piecemeal and case should not be decided merely by relying upon one sentence or isolated portion in the statement of a witness. Reliance in this behalf is placed upon judgments of this Court reported as "Sabir Hussain and 6 others Vs. Eisa and 2 others" (2004 MLD 963) and "Asif Shehzad Vs. Addl. Ditrict Judge, Muzafargarh and others" (2018 YLR 1682 ). Reliance in this behalf can also be placed upon judgment of this Court reported as "Mst. Hameeda Bibi and 3 others Vs. Khan Muhammad alias Khan Ahmad and 3 others" (2021 MLD 2046 ) wherein it is mentioned that party cannot be permitted to resort to pick and choose favourable part of evidence and overlook detrimental evidence, for the reason that piecemeal appraisal is not permissible.
14. In view of the foregoing, the impugned order does not appear to be based on proper appreciation of evidence and material available on the record in its true perspective and suffers from jurisdictional defect of misreading and non-reading of the same resulting in miscarriage of justice, therefore, is not sustainable. Reliance in this behalf may be placed on judgment reported as "Sartaj Khan and another Vs. Jan Muhammad" (PLD 1998 SC 1502 ) wherein it is laid down that the learned Courts below legally erred in the decision of the case which resulted in miscarriage of justice because they did not read the evidence on record in its correct perspective and also misread important evidence. Same principle has been laid down in judgment reported as "Manzoor Ahmad versus Haji Hashmat Ali through Legal Heirs" (2000 CLC (Lahore) 419) wherein it is held that where the court was satisfied that the findings of courts below were based on misreading or non-reading of evide nce, the High Court was bound to reverse the said findings.
15. Although to approach the N.I.R.C. for redress of her grievance it was for the petitioner to show that she falls within the definition of 'workman' as already settled in judgments reported as "Managing Director , Shahi Bottlers (Pvt.) Limited Vs. The Punjab Labour Appellate Tribunal, Lahore and 2 others" (1993 SCMR 488) and "National Bank of Pakistan Vs. Punjab Labour Court No. 5, Faisalabad and 2 others" (1993 SCMR 672), yet it is also settled by now that designation of a person could not be considered a factor for determining status of employment in an establishment to be that of an "officer" or a "workman" rather nature of duties and functions of a person were to be considered to be the relevant factor which would determine whether his status was that of a "workman" or not. Reliance in this behalf is placed on judgment reported as "National Bank of Pakistan and another Vs. Anwar Shah and others" ( 2015 SCMR 434 ).
16. The petitioner in her statement has claimed herself to be a "workman" performing manual duties at the time of her appointment and termination of service, therefore, in these circumstances it was incumbent upon the respondents/employer to show that she had been working as supervisor/employer on the date of termination of her service. It appears that learned full Bench of N.I.R.C. has not taken into considera tion the documents produced by the parties in evidence and the statement of the parties in its entirety , especially statement of petitioner as PW-1 to reach the conclusion about her status as 'workman' or 'employer ', which is basic ingredient to be determined to vest or divest N.I.R.C. with jurisdiction to entertain the grievance petition filed by the petitioner . It appears that the full Bench of N.I.R.C. on consideration of pleadings of the parties including grievance petition, its reply and appeal filed by the respondents and piecemeal reading of evidence reached the conclusion that petitioner was working as Supervisor at the time of termination whereas entire evidence should have been taken into consideration for reaching just conclusion in the matter , the reason being that pleadings of parties are not substantive piece of evidence and cannot be relied upon unless and until averments made in pleadings are proved through evidence in Court or admission by the other party as laid down in judgment reported as "Muhammad Akram and another Vs. Mst. Farida Bibi and other" (2007 SCMR 1719 ), therefore, it is concluded that the impugned order of learned full Bench of N.I.R.C. is not based upon proper exercise of jurisdiction, in addition to being a non-speaking order , hence, is not sustainable and is liable to be set aside. Reliance in this behalf may be placed on "Dilawar Jan Vs Gul Rehman and 5 others" (PLD 2001 SC 149) and "Khurshid Ahmad versus Bashir Ahmad and others"
(2004 YLR 469 (Lahore)) wherein it is held that High Court in exercise of constitutional jurisdiction can interfere where the impugned order suffers from jurisdictional defect or violates any provision of law or is in excess or abuse of jurisdiction.
17. The crux of the afore referred discussion is that although, in order to approach the N.I.R.C. for redress of grievance, petitioner was required to show that the petitioner fell in the definition of 'workman'/'worker ', however , where evidence has been led by the petitioner to claim that petitioner was a 'workman' there-after in order to challenge the jurisdiction of N.I.R.C. to entertain dispute it was upon the employer to show through evidence or other material available on record that the petitioner was not a 'workman'. The N.I.R.C. to determine the afore- referred aspect of the matter was required to read the evidence and material available on the record as a whole to reach just conclusion in the matter and could not rely upon a single sentence or a portion of evidence in piecemeal to determine the question whether the petitioner was a 'workman' or not as determination of said question would determine the jurisdiction of N.I.R.C. to entertain the dispute. The said exercise by the N.I.R.C. suffers from jurisdictional defect of misreading and non-reading of record, hence, the impugned order has resulted in miscarriage of justice and is not sustainable.
18. In view of the foregoing, while setting aside the order dated 09.03.2021 passed by learned full Bench of N.I.R.C., the matter is remanded to learned full Bench of N.I.R.C. to decide the question whether the petitioner falls within the definition of 'worker '/'workman' and thereafter decide the dispute afresh on its own merits strictly in accordance with law .
19. For what has been discussed above, this constitutional petition is allowed .