1. SAEEDUZZAMAN SIDDIQUI, J.-This petition under Article 9 of the Provisional Constitution Order, 1981 is directed against the order of Sind Labour Appellate Tribunal dated 10-8-1981. The facts relevant to this Petition are as follows: The appellant who claimed to be an employee of Respondent No. 1 filed a grievance petition under section 25-A of the I. R. O. For his re--instatement in service with full back benefit before the Vth Sind Labour Court Karachi . It appears that simultaneously another person named Munir who also claimed to be an employee of Respondent No. 1 also applied under section 25-A of 1. R. O. For re-instatement with back benefits.
2. The two applications separately proceeded before the Vth Sind Labour Court and b! Separate judgments delivered in them both the petitions were dismissed on the ground that they were ta9t the "workmen" within the meaning of Standing Orders Ordinance of 1968. It was held by the Labour Court that in an earlier proceedings initiated under section 34 of the I. R. O. By the Workers'. Union of Respondent No. 1 for payment of bonus, the Labour Court as well as the Appellate Tribunal had held that these two employees were not the "workmen" of Respondent No. 1 and accordingly their grievance petitions were rejected by the Labour Court . Two separate appeals were filed before the Appellate Tribunal against the above decision of Labour Court by Islam the present petitioner and the said Munir. The learned Appellate Tribunal by its impugned judgment held that the petitioners as well as the said Munir were the `workmen' within the meaning of Standing Orders Ordinance and the I. R. O. Holding at the same time that the decision in the earlier case initiated by the Workers' Union of Respondent No. 1 under section 34 of the I. R. O. In which it was held that Islam and Munir was not workmen amounted to constructive res judicata in the case. The learned Appellate Tribunal also came to the conclusion that the provisions of Standing Orders Ordinance were not applicable to the establishment of Respondent No. 1 as the number of employees in the establishment were less than 20. The operative part of the order of the learned Appellate Tribunal dealing with the contention of Respondent No. 1 that the Standing Orders Ordinance, 1968 did not Apply to them is as follows: "It next falls to be considered whether the Standing Orders are applicable to the respondent establishment. According to the affidavits of the appellants, 28 workmen were employed during the relevant period in the respondent establishment. The appellants have given the names of these 28 workmen in their affidavits. Further, they are supported by the General Secretary of the Workers'
3. Union in the respondent establishment. However the appellants' claim is completely shattered by their own cross-examination. It was admitted by appellant Muneer that Kala Khan son of Ajdib Khan "had left the services of the Respondents on 1-7-1979, and that in his place Muhammad son of Ajaib Khan was employed. Despite this fact, the names of both these persons have been given in the list of 28 persons establishment at the relevant time. It has further been admitted by appellant Munir that Isimdar was a contractor of Chicken Tikka and that Aftab, Pervaiz, Ghulam Hassan and Saleem were the employees of the above-named contractor. However, the names of these 5 persons also appear in the list of 28 persons allegedly employed in the respondent establishment.
4. Finally, appellant Munir has stated that he does not know if Jameel Khan, Irshad, Mulla and Sultan Munshi, whose names appear in the list of 28 persons allegedly employed in the respondent establishment, have ever been the employees of the respondent establishment. It would thus appear from the admissions of the appellants themselves that less than 20 persons were employed in the respondent establish--ment at the relevant time. In view of this position, the Standing Orders would not appear to be applicable to the respondent establishment and the appellants would not be entitled to file grievance petitions under clause (3) of Standing Order 12 read with section 25-A, I. R. O."
5. The learned counsel for the petitioner contends that the above findings arrived at by the learned Appellate Tribunal is based upon a complete misreading of evidence. It is contended that nowhere in the cross-examination, the petitioner admitted the fact which formed the basis of the above finding of the learned Appellate Tribunal. The learned counsel referred us the certified copy of the evidence of Islam on record to show that he never admitted these facts, We find that the admissions referred in the above-quoted para. Of the order of Tribunal were made by Munir in the other case. There is nothing on record to show that the parties had agreed either before the Labour Court or the Appellate Tribunal that the evidence recorded in the case of Munir is also to be read as evidence in the case of Islam. The mere fact that the two appeals were heard by the Appellate Tribunal at the same time did not entitle the learned Tribunal to read the evidence of one case in the other. In ground (e) of the petition the petitioner had specifically raised this ground but no counter --affidavit has been filed to controvert it by the respondents. We are, therefore, of the view that while deciding the case of the petitioner Islam the learned Appellate Tribunal fell into error in reading the evidence recorded in the case of Munir as both the cases proceeded before the Vth Labour. Court separately and there is nothing on record to show that the parties had agreed that the evidence recorded in the case of Munir was also to be read in the case of Islam. The finding of the learned Appellate Tribunal is, therefore. Based on complete misreading of evidence and is, therefore; liable to bed quashed. We are further of the view that there is an obvious inconsistency the order of the learned Appellate Tribunal inasmuch as the Appellate Tribunal while holding that the earlier decision under section 34 of i. R. O. Amounted to constructive res judicata also proceeded to hold that the petitioner was a "workman" within the meaning of the Standing Orders and I. R. O.
6. We accordingly allow this petition and declare the order of Sind Labour Appellate Tribunal dated 10-8-1981 as illegal and without lawful authority but in the circumstances of the case direct the Sind Labour Appellate Tribunal to re-bear the appeal of Islam in the light of the above observation and dispose it of in accordance with the law. However, there will be no order as to costs. Petition accepted.