' The four petitioners namely Abdul Waheed, Aziz-ur-Rehman. Muhammad Tariq and Sami Ullah were in the service .Of the Universal Oil and Vegetable Ghee Mills, Sheikhupura as Assistant Chemist, Time Clerk, Oil Clerk and Watchman,, respectively. They were dismissed from service on 25-3-1976, on account of misconduct. This dismissal was assailed by them, under section 25-A of the Industrial Relations Ordinance. The Punjab Labour Court No, 2, by its order dated, 14-10-1976 accepted their petitions and ordered their re-instatement with back benefits. The Management brought four separate appeals against the orders of the Labour Court, which have been allowed by the learned Punjab Labour Appellate Tribunal, by pilferaging a consolidated order, dated 29-12- 1976 and the orders of the Labour Court set aside. Life Tribunal's order is under challenge in this writ petition.The facts which led to the petitioner's dismissal are that on 4-3-1976 a Tanker carrying 180 Maunds of cotton seeds oil came to the actory from Gujrat. The petitioners were accused of having received it in the factory, short by 50 Maunds; in connivance with one Muhammad Afzal; pilferaged that much quantity of oil, manipulated the record and Consequently caused a loss of Rs,10,000 to the employer-company. They were charge-sheeted and an inquiry was held into the charges levelled against them. The Inquiry Officer exonerated Muhammad Afzal but held that the charges against the petitioners were proved. On. The basis of the report of the Inquiry Officer, the Managing Director respondent No, 3 herein, dismissed them from service.
3. Before the Labour Court the Management disputed the maintain- ability of the grievance petitions by petitioners Nos, 1 and 4, on the ground that the former was Chemist and latter a watchman; both were not covered by the definition of the workman given in the labour laws.
Petitioner No, 1 claimed to be as Assistant Chemist. The Labour Court held that duties of the Assistant Chemist and a Shift Chemist were the same; as the work of the Chemist requires a manual as well as mental work. It was also found that the wages paid to petitioner No, 1 were less than Rs,600. He was thus treated as a workman. Likewise, petitioner No, 4 being a watchman on the basis of the decision reported in 1976 PLC 424 was, considered as a workman. The learned Labour Court on perusal of the material on the record and evidence produced before the Inquiry Officer, declined to believe the Management's version as to the pilferage of the oil and concluded that the Inquiry Officer was influenced by the high-ups.
4. The learned Tribunal referred to the documents Exhs. R. 1 to R. 5 and R. 9, in which the .Designation of petitioner No, 1 was mentioned as Shift Chemist. It also found that 4 persons worked under him; he was entitled to grant leave and sanction overtime to his subordinates. The learned Tribunal then discussed some case law on the subject to hold that petitioner No, 1 was not a workman under the Standing Orders Ordinance, 1968. As regards petitioner No, 4 seemingly his status as a workman was not disputed in appeal. The Tribunal took the view that the Labour Court could not go into the question as to whether or not the theft was actually committed and had to confine itself to the issue Whether the inquiry was conducted by the domestic Tribunal in accordance with law. This view was based on Muhammad Shainim v. Pak. Tobacco Company Ltd. Etc. 1975 SCMR 46. On merits it came to the conclusion that there was enough direct and indirect evidence to prove the petitioner's guilt.
5. The first question which needs to be determined is the status of petitioner No,
1. His learned counsel argued that the petitioner was Assistant Chemist and was never promoted as Shift Chemist. He submitted that the petitioner drew a salary of Rs,480 per month only and analysis of the chemicals, was, his main work, which involved performance of skilled manual work but an ancillary duty, he also prepared reports and charts etc. And thus he was a workman. He heavily relied on Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another PLD 1975 Kar.
342. This was the case of a Chief Accountant, whose services were terminated by the Management.
The latter opposed the competency of the action brought by the employee before the Labour Court, on the plea that he performed supervisory and managerial duties. The High Court Karachi, however, did not accept this contention and considered him a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968. In the course of the judgment t learned Single Judge observed:- "In my view, neither the designation nor the salary is a fact for determination of the status of the 'employee'. The on criterion is the work that an employee has to do and the answer ability/ for the performance...................
6. For seeking redress under section 25-A of the I.R.O. The petitioners must show that some right guaranteed to them by or Lunde some law has been infringed by the employer. The grievance borough by them before the Labour Court, was that their dismissal was violative of Para. 15 of the Schedule to the Ordinance. Thus, for invoking the provisions of the Ordinance, petitioner No, 1 must establish his statue as a workman under section 2 (i) thereof. The definition of the workman given therein, is, as under:- " 'workmen' means any persons employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
7. As held in the precedent aforesaid, in order to ascertain the real status of the petitioner No, 1, qua the Ordinance, the true nature of the duties performed by him should be the determining factor an in this respect the ancillary work done by him should not influent such determination. He appeared in the witness-box before the Labour Court. But despite the fact that in the written statement, Managemen specifically raised the objection that he was not a workman, in his statement, the petitioner did not say even a word about the nature his duties. In fact he did not bring any material on the record in thin behalf. On the other hand, the Management examined Jalil Ahma Chauhan, Production Manager and as per his statement, petitioner No, 1 was Shift Chemist who worked either in the evening shift or the night shift and as such he used to be the sole incharge of the factory. He categorically stated that the petitioner did not do any mental o clerical work. He also produced the chart of the personnels, working under the Shift Chemist and deposed that all the persons mentioned in the chart, were, administratively and technically responsible to the Shift Incharge. It is also in the testimony of Fazal Hussain, Chief Accountant, that petitioner No, 1 was the Shift Chemist.
In his statement, the petitioner admitted that as Shift Chemist, he granted leave to his subordinates and also sanctioned overtime. There is no other evidence, in respect of the nature of the duties of the petitioner, It is therefore, difficult to accept that he performed any skilled manual work as canvassed by his learned counsel. We are, therefore, in agreement with the learned Tribunal that the etitioner did not qualify to be a workman. The Labour Court fell in error to hold otherwise. Thus, his grievance petition before the Labour Court did not lie.
8. Since the learned counsel for the parties are at variance on the scope of the inquiry under section 25-A before dealing with the case on merits we must attend to this issue. For the resolution of this controversy, it shall be apt to refer here to subsection (5) of section 25-A which provides:- ' the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."
' This question fell for consideration before the Supreme Court in hammed Shamim's case, referred to by the Tribunal. In that case, employee who was accused of committing theft, brought a constitutional Wien, against the orders of the Labour Court which was dismissed the High Court. He then sought leave to appeal, from the orders of High Court. One of the issue raised by him before the Supreme Burt, was, that the question of commission of the theft should have been inquired into by the Labour Court. This contention was repelled hold: "The last contention that the Labour Court should have gone into the question whether the petitioner had committed any theft or not is also devoid of force. The Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by Enquiry Officer." e same issue was again examined by the Supreme Court in Crescent to Products Limited v.
Muhammad Yaqoob PLD 1978 SC 207, and e view taken. Is: "From the language of the statute herein before reproduced it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of the concerned case it was justified or not, both on merits as well as law. The words shall go into all the facts of the case are a clear guide with regard to the wide scope of the enquiry which a Junior- Court undertakes under section 25-A In other words the intention of subsection (5) of section 25-A appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based .
9. In view of the latter enunciation of the Supreme Court we are t left in any manner of doubt that the impugned order calls for terference. The learned Tribunal proceeded on the assumption that question of commission of pilferage, was, a matter which could only e .Inquired into by the Inquiry Officer and the Labour Court in no se could interfere with his findings. Such assumption, however, is to in consonance with the said dictum of the Supreme Court. As served earlier the Supreme Court's decision in Muhammad Shamim v. Ak. Tabasco Company Limited, weighed with the Tribunal. But the dement in Crescent Jute Products Ltd, case, being of latter date 1st prevail.
10. On the question of theft the learned counsel for the petitioner's as argued that this is a case of no evidence. On the other hand the arned counsel for the Management seeks sustenance of the impugned der. His argument is that it was open to the Tribunal to differ with finding of the Labour Court and since in exercise of its appellate risdiction the Tribunal has recorded .a finding of fact which should to be interfered with through judicial review. We have already noticed at on the issue of theft the Tribunal has held that the petitioner's uilt is established by the evidence on the record but it has not at all ferred to such evidence muchless to discuss the same, presumably, der the impression that the finding in the domestic inquiry, in all is, binding on the Labour Court. We have already maintained that such a view is not tenable in law. As an appellate authority c the question of fact as well as law, it was obligatory for the Tribune) to have dilated upon the evidence particularly when it differed with the findings of the Labour Court. In exercise of constitutions jurisdiction, we would not like to embark upon an appraisal of evidence of the parties and then render some finding of fact. For this purpose, the case shall have to be remanded to the Tribunal below.
11. For the foregoing reasons, so far as petitioners Nos, 2 to 4 art concerned the writ petition is accepted, the impugned order declare to have been passed without lawful authority and the case is sent bac' to the Tribunal to decide it afresh in accordance with law. As regarded petitioner No, 1, the writ petition is dismissed. The parties are left to bear their own costs.
THE END