1. SAEEDUZZAMAN SIDDIQUI, J.--We propose to dispose of the above noted two petitions by a common order as the point of law involved in the above cases is common.
2. In both the petitions the petitioners who were the employees of Karachi Port Trust were dismissed from service on charges of misconduct, after domestic enquiries. In Petition No, 831 of 1981, the petitioner after service of a grievance notice on K.P.T. filed a Grievance Petition under section 25-A of the I.R.O., before Sindh Labour Court No, 1, which was dismissed on merits. The petitioner challenged the order of Labour Court No, 1 before the Sindh Labour Appellate Tribunal which was dismissed on the ground that as the petitioner was a dismissed employees of the KPT he was not covered under the definition of "workman" as given in the I.R.O., and as such his Grievance Petition filed under section 25-A of the I.R.O., was not maintainable in law. The petitioner has challenged the above decision of the Appellate Tribunal as well as that of the Sindh Labour Court No, I.
3. In the second petition No, 198 of 1984 the petitioner Sultan was also dismissed from service after domestic enquiry on the charges of misconduct. He served a grievance notice on the employer (K.P.T.) and upon their refusal to reinstate him in service he filed a grievance petition under section 25-A of the I.R.O., before the Vth Labour Court, Karachi, which was dismissed on point of jurisdiction.
4. Against the order of Vth Labour Court the petitioner filed an appeal before the Appellate Tribunal who remanded the case back to the Labour Court. On remand the Labour Court once again dismissed the grievance petition of the petitioner as not maintainable. The petitioner once again filed an appeal against the order of Vth Labour Court before the Appellate Tribunal which again remanded back the case to the Labour Court with the direction to find out if the petitioner was employed in connection with his duties in wharf, and Jetties etc. This time the Labour Court after holding enquiry reached the conclusion that the petitioner was employed in connection with the work on wharf and docks but beyond this it failed to pass any order in favour of petitioner.
5. Accordingly, the petitioner once again filed an appeal against the above order of the Vth Labour Court before the Appellate Tribunal with the prayer for reinstatement in service. The Appellate Tribunal, however, found that the petitioner was not covered under the definition of 'worker' and 'workman' as given in the I.R.O., and as such his grievance petition. under section 25-A was not maintainable in law. The Appellate Tribunal also found that the provisions of Standing Orders Ordinance of 1968 were not applicable to the case of the petitioner. The petitioner has now challenged the above decision of the Appellate Tribunal in the petition.
6. Two questions arise for consideration in the above petitions. Firstly, whether the provisions of Standing Orders Ordinance 1968, were applicable to the cases of the petitioners and, secondly, whether the grievance petition filed by the petitioners before the Labour Court under section 25-A of the I.R.O. was maintainable. With regard to application of provisions of Standing Orders Ordinance 1968 to the employees of K.P.T. It is admitted by the learned counsel for the parties that in view of the following observations of Honourable Supreme Court in the case of Trustees of Port Trust of Karachi v. Abdul Ghani (1983 SCMR 769) the provisions contained in the West Pakistan Standing Orders Ordinance 1968 were not applicable to the cases of the petitioners.
7. "It was contended by the learned counsel for the appellant that by reason of the first proviso to section 1 of the West Pakistan (Standing Orders) Ordinance, 1968, the statutory Rules of Service prevailed over the provisions of that Ordinance in regard to any legal right secured thereunder, and that as the respondent was a dismissed workman, he could not have availed of the provisions of section 25-A of the Industrial Relations Ordinance which applied only to the case of a workman in employment and not to the former as he was excluded by the definition clause which was worded in the present tense. (See section 2(28) of the Industrial Relations Ordinance, 1969). Another limb of the argument was that a workman could not seek a remedy against his dismissal before the Labour Court unless such dismissal was connected with an Industrial dispute. This much cannot be disputed that the provisions of the West Pakistan (Standing Orders) Ordinance arc not applicable to the case of the respondent; but as for the other submission that section 25-A will not he applicable, no such plea was taken in this form either before the Labour Court or before the High Court and leave was also not granted to consider this question."
8. The second point for consideration in the case is, whether the grievance petition filed by the petitioners in the above cases was maintainable under section 25-A of the I.R.O. The contention of the learned counsel for the petitioners before us is that in view of the decision of the Supreme Court in the case of Trustees of Port Trust of Karachi v. Abdul Ghani the provisions of section 25-A of the I.R.O. were applicable to the cases of the petitioners. Mr. Abbas Ahmed and Mr. Zahecruddin Khan, learned counsel for the K.P.T. in the above petitions, however, jointly urged that in Abdul Ghani's case the Court did not decide this point and left it open for decision. It is, accordingly, urged by the learned counsel that we should independently examine this question and decide the same.
9. According to joint contention of Mr. Abbas Ahmed and Mr. Zaheeruddin Khan, the definition of the 'worker' and 'workman' as given in the I.R.O. does not include a person who is a dismissed employee and, therefore, a grievance petition by such a dismissed employee is not maintainable under section 25-A of the I.R.O. The definition of the workman as given in the I.R.O. may be reproduced here for the sake of convenience which is as follows:-- "(xxviii) "worker" and "workman" means any person not falling within the definition of employer 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 be express or implied, and for the purpose of any proceeding under this Ordinance 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, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person:--
(a) Who is employed mainly in a managerial or administrative capacity, or
(b) Who, being employed in a supervisory capacity draws exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
10. It is true that according to the above definition 'worker' and 'workman', means a person not falling within the definition of the 'employer' and who is "employed", in an establishment or industry for hires or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purposes of any proceedings under I.R.O., relating to an industrial dispute it also includes a dismissed, discharged, retrenched, laid-off or otherwise removed employee in connection with that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to an Industrial dispute. Learned counsel for the K.P.T., accordingly, contended that only two types of dismissed employees could bring their disputes before the Labour Courts under section 25A. Firstly, those who are dismissed as a result of Industrial dispute and, secondly, those whose dismissal had led to an Industrial dispute. Learned counsel in support of their contention placed reliance on leave granting order of Supreme Court in the case of Trustees of Port Trust v.
11. Mohammad Salim and others dated 15th April, 1988 where in Hon'ble Supreme Court has granted leave to consider the effect of decision in the case of K.P.T. v. Abdul Ghani (1983 SCMR 769). It is, however, not necessary for us to go any further in this question, as in our view, on account of judgment in Abdul Ghani's case the remedy by way of a grievance petition under section 25-A of the I.R.O. was not barred. In this connection we respectfully reproduce here the following passage from Abdul Ghani's case which appears at page 772-3 of the report:-- "In the application before the Labour Court, the allegation made by the respondent was that he was a permanent worker which was not denied and as to whether the definition clause ousted a dismissed employee from seeking remedy under section 25-A it was an open question which required examination at all levels. This much however, is prima facia obvious from section 25-A that it is available to a workman who has a grievance in respect of any right guaranteed by or "under any law" which would also include the violation of Service Rules incorporating the settled principles of law that the trial of the case and the evidence should remain confined to the pleadings of the parties and no new case be allowed to be set up in evidence. Here the Inquiry Officer had clearly violated this principle by acting on the statement in respect of an incident which was not the subject matter of the charge-sheet or the statement of allegations and, therefore, his decision was legally erroneous. However, on the question framed for decision section 1(2) excludes in the services which are outside the scope of the provisions of the Industrial Relations Ordinance whereas in effect it extends to the whole of Pakistan and to the other establishments not specifically excluded therein. There is no provision in the Karachi Port Trust Act, 1886, which can be read to exclude the applicability of the Industrial Relations Ordinance, 1969, and for that matter section 25-A of the Ordinance. It is true that an appeal is provided under section 23 of the Karachi Port Trust Act, 1886, but there is no apparent bar against the availability of section 25-A of the Ordinance; and ought it be said that he two remedies are available, side by side, as prima facia the Industrial Relations Ordinance, 1969, by its scope, over-reaches an establishment which satisfies the definitions of employer, worker or workman and the establishment. On this view of the matter, it is difficult to accept that the Karachi Port Trust Act is a special Act qua its workmen which are governed by it."
12. A careful reading of the above paragraph will show that it was specifically contended before the Supreme Court in Abdul Ghani's case that a dismissed employee of K.P.T. could not maintain a petition under section 25-A as he does not come within the definition of 'workman' as given in the I.R.O. Although it was observed by the Honourable Supreme Court that it was an open question at all levels in that case, yet in the final analysis, the Court reached the conclusion that remedy by way of a grievance petition by a dismissed employee of K.P.T. under section 25-A of I.R.O. was not barred under any of the provisions of the K.P.T. Act and, consequently, reinstatement ordered by the High Court in that case was not interfered with. In our humble view the effect of the above decision of Hon'ble Supreme Court in Abdul Ghani's case is that it cannot be argued now that a grievance petition by a dismissed employee of the K.P.T. is not maintainable before the Labour Court. We accordingly allow these petitions and declare the orders passed by the Appellate Tribunal holding the grievance petitions of the two petitioners in the above cases as not maintainable under section 25-A of the I.R.O. as without lawful authority and of no legal effect. The result of the above declaration will be that the two appeals filed by the petitioners in the above cases before Labour Appellate Tribunal will be deemed to be pending and will be disposed of in accordance with law.
13. There will be no order as to costs.