' This is a petition under Article of the Constitution of Islamic Republic of Pakistan, 1973, whereby, United Bank Ltd., the petitioner wants this Court to declare the orders dete"24th January, 1978 and 4th November, 1981 passed by Punjab Labour Court.'NO.I. 9, Multan, respondent No, 2 and Punjab Labour Applegate Tribunal, Lahore, respondent No, 3, to be without lawful authority and of no legal effect. {{BLUR PAGE}}
2. The facts leading np to ;his petition inrbrief, are that Muhammad Ali respondent viaa'or etf as lesrk 16=1964. In- the year 1973, he was promoted as Officer.' On 3011arfieptember, 1976:Nhen he was posted, as Officer Grade HI in Pakpattan ,Branch, United Bank Ltd.0 his services were terminated on the ground.Of lack of confidence in him. Feeling aggrieved, he filed petition .Under section 25-A of IndOstrig Relations Ordinance, 1.969_ beforPunjab Labour Court No, 9, Multan: petition Was accepted lit:respondent No, 2 on 24th.Lantiary, rt978 arid the- etitioner was re-instated 'with back benefits. Feeling aggrieved `.Iptyidecision, United Bank Ltd., filed appeal before Punjab Labour APPellate.:Vribunal, Lahore; vihieh rims disrnialied on 4th NO4eirtlier,1981. Bette this petition.
3. The learned_ cosusig for ,the,:pstirioner $kihmitted that since Muhammad Ali respondent No, 1 was not WOrkiiiiiitiliffettlie law, therefore, Pun*. Taboar COnft;:lespondent'No:,:2 hadito jurisdiction to entertain the petitioilloader senon'-25-A of I.
RA):4i;.1969 and to re-instate the petitioner. Noittivq si.Wibuipc bra.; As against this, tbe learifod Counsel toY4PolidiliffftiriiiiiiCkittorted the impugned orders of respondenta_NOSI2fuld'W,Illeinadeithikfolkwing anixabsioils :44XX) 2noi3.i3b534 QP1 That iii2ceklftuteinittbiingt"OnStiniiiffaiNalV.Endergonk material changes, therefore, MuhammadAti ,tespondenCNocii Lt7work- man ' witlunAlmAneagimapf sefitistn4213.):Aajt,0 its latest amend 'dormthrougVoidinance JaPtit 6r1034 'atftch.
4460-34iiteIiiitevoitipetentildenteirtain-and OttittittiPiiidttpitietioti,134:ofaLRV. And 119i31 P7(114461,eatiefl totiiiilolvelplaisiedethe amendments ituk 1 of referred to by itimeand the 4efini- 1fmaTto are teetinit 12ac.liaRr ill X -=-Be sub- Pihhite'd iiiontAtaibf M31-iiibuldnidaawaliat an employee who has no power to hire and reward, even he may be acting as a supervisor and drawing pay more than Rs, 800 per month, would be a workman". Reliance has been placed on PLD 1977SC 237,1979PLC 355, 1976SCMR 448 and 1971 SCMR 103.
(2) That the question whether the employee is a "workman" or not is a question of fact which stands concluded by the concurrent findings of the two tribunals and as such writ would not be a proper remedy to quash the impugned orders, and that in labour cases, writ is not competent. He relied on 1976 PLC 901 and PLD 1976 Lah.
1169.
(3) That the right to -petitioner to seek redress is not governed by I.R.O. It is, on the other hand, governed by West Pakistan In- - dustrial and Commercial Employment (Standing Orders)
Ordinance, =4.
1968. ..Str
4. The crucial point which requires determination in this petition, is whether respondent No, is a "workman" for the purpose of grievance petition under section 25-A of I.R.O. Before Punjab Labour Court No, 9 )' against his termination from service. Having considered this legal aspecq of the case in the light of the record and the arguments advanced by the learned counsel for the parties, I :find that despite amendments through different Ordinances and Act XXIX 4f 1973, an Officer Grade III remains to be "employer" and not "workman". The relevant provisions may be reproduced with advantage : - Sec. 2(xxviii).-"Worker" and `"workman" them any petition not falling within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for .f1 hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose...6 of any proceedings under this Ordinance in relation to an industrial "al dispute includes a person who has been dismissed, discharged, , retrenched, laid off or othertwise removed from employment in section with or as a consequence of that dispute or whose dismissal discharge retrenchment, lay off, or removal has led to that dis pute".
Sec. 2(viii). -"Employer", in relation to an establishment, means any 1-11. Person or body of persons, .Whether incorporated or not, who or A which employs workmen in the establishment under a contract of employment and includes (a)... #TBS #TBE (b)... -,m a- ... 01 gi.: .-..
(c)... -1-41 triE I 1 tit:0 .7:&;,* '15:tt'5 * AI . * ..i.14 3-2-1 e IVA teal (d). f ,Z. ..., ,lui! i.. ... Rm ..,_ ...,ti in ... ..Lbrift (e)...In relation to an .,f1 y other establishment, the proprietor of sum_ officer or person concerned with, the management of the aft .14'.,a establishment and every director, manager, secretary, agent or ottir 1-, thereof ;". Er {{BLUR PAGE}} Al zi.
After having examined the definitions of "employer" and "workman",11167 its latest amended form through Ordinance XXIX_ of 1913 I am 44101 opinion that as long as the language "other officer or person concerned with the management of the affairs thereof", section 2(vi) exist even the combined effect of the amendments in the definition of the "workman" introduced through Ordinances and Act XXIX of 1973, would not bring an officer or a person concerned with the "manageulcut of affairs thereof" within the category of "workman" for the simple reason that no corresponding amendment has been made in the definition of "employer" under section 2(8Xe) so far. The case law cited by the learned counsel for the respondent in this regard being distinguishable is not applicable to the facts and circumstances of this case.
5. As far the factual aspect of the matter, I feel persuaded to agree with the learned counsel for the petitioner that Muhammad Ali, respondent No, 1, an Officer Grade III in United Bank Ltd., was not a "workman" under the law and despite amendments referred to by the learned counsel, he remains to be an "employer" within the meanings of section 2(8) of I.R.O., 1969. Consequently, he was not entitled to move grievance petition under section 25-A against termination of his service. I am fully conscious that the designation is not the only test for determination whether an employee is a "workman" or not and the real test lies in the duties actual performed by him. It is now well settled that the burden lies on the petitioner to prove that he was a "workman". Admittedly, the respondent was an Officer Grade III at the time of termination of the service. The plain reading of the statements of P. W. 1 Muhammad Ali, respondent No, 1 and of R. W. 1 Muhammad Akram, Group Incharge, Zonal Office, Sahiwal, documents Exh. P.R., the power-of-attorney issued in favour of Muhammad Ali respondent, Exh. P. 2 list of his, duties and the functions which he actually performed as Officer Grade HI, leave no room for doubt that the main job of the petitioner was to act on behalf of management and perform functions as were necessary for effective and efficient management thereof. To my mind, he, therefore, was not a "workman" and belonged to a superior category distinct from persons -"skilled, unskilled manual or doing clerical job". He was, therefore, an Officer or person concerned with the management of the affairs thereof. Furthermore, there is no documentary evidence to the effect that after promotion, he was to perform duties quit substantially of clerical nature or duties of a "workman" envisaged by the definition of a "workman" in its latest amended form. For all these reasons, I am of the view that since the jurisdiction of the respondent determine upon the fact whether respondent No, 1 was a "workman" or not and in the case in hand I have come to a definite conclusion that Muhammad Ali respondent No, 1 was not a "workman", therefore, Respondent No, had no jurisdiction to entertain and adjudicate upon the grievance petition under section 25-A moved by respondent No, 1 against termination of his service.
6. Adverting to the submissions made by the learned counsel for respondent No, 1, I find that these are without substance inasmuch as, the Respondents having no jurisdiction to entertain the petition could not give findings/concurrent findings on question of fact. Since the concurrent findings have been given by the Tribunals of incompetent jurisdiction, the same are nullity in the eye of law. Needless to say. If a person is not a. "workman" for the purpose of I.R.O., 1969, he would also not fall within the definition of "workman" for the purpose of "standing orders" inasmuch as the definition of "workman" given in "standing orders" is narrower than the definition given in I.R.O., 1969.
Since I have come to the conclusion that Respondents Nos. 2 and 3 had no jurisdiction in the matter, (Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal) it would, therefore, be the duty of this Court to interfere and strike down.[ illegal and unwarranted decisions.
7. The upshot of the discussion is that the petition is accepted. The impugned orders are declared to have been passed without lawful authority 0 and of no legal effect. The parties are, however, left to bear their own costs.