' The petitioner through this Constitutional petition has impugned the order dated 11-8-1986 of respondent No, 2.
2. The relevant facts are that respondent No, 1 was working as a line jobber with the petitioner, who terminated his services on account of misconduct. The respondent No, 1 challenged this order through petition under section 25-A of the Industrial Relations Ordinance before Punjab Labour Court. The petition was allowed vide order dated 6-12-1981. The petitioner filed an appeal Lefore respondent No, 2, who accepted the same and remanded the case to Punjab Labour Court. This time the application of respondent No, 1 was dismissed and it was he, who challenged this order before respondent No, 2 who once again accepted the appeal vide order dated 9-12-1984 and remanded the matter once again. This application, however, after remand was withdrawn by respondent No, 1 on 3-7-1985 and the second application, out of which the present proceedings have arisen, was filed. The petitioner contested this application besides facts on two legal grounds namely, that it is time-barred and respondent No 1 is not a worker, therefore, dismissed his petition vide order dated 4-3-1986. The respondent No, 1 impugned this order through an appeal before respondent No, 2, who accepted the same vide order dated 11-8-1986. It was held that respondent No 1 was a worker and the case was remanded for fresh decision. The petitioner has challenged this remand order through this Constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondent No, 1 alone has entered appearance and contested the petition.
3. The learned counsel for the petitioner in support of the petition argued that respondent No, 1 was not a worker at all as his duties were of supervisory nature. In this behalf he has referred to different portions of the judgment of two Tribunals below and also to the statement of respondent No, 1 and, petitioner's own witness. It is added that the main duties are to be seen and not nature of the work which incidental or consequential is to be considered. The learned counsel in this behalf referred to the judgment in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103.
4. On the other hand, learned counsel for contesting respondent, has argued that in order to succeed the petitioner was to prove that respondent No, 1 was employed in a supervisory capacity and his emoluments were more than Rs,800 p.m. It is added that the onus heavily lay on the employer to prove that the petitioner before the Labour Court is not covered by the definition of worker. The learned counsel in this behalf has referred to the case of Warner Lambert (Pakistan)
Ltd. v. Sindh Labour Court No, III, Karachi and another 1979 PLC 370. It is added that the definition of 'worker' in I.R.O. Is wider in scope as compared to definition as given in Standing Orders and covers in its folds the respondent No,
1. The learned counsel in this behalf has referred to the case of Rehmat Ali v. The Security Papers Ltd. And another. The next submission is that the petitioner himself treated respondent No, 1 as a worker while initiating disciplinary proceedings against him, therefore, it is now estopped by its own conduct to turn round and plead that he is not a worker.
The arguments are summed up with the submission that the controversy involved is a factual controversy which has been set at rest with the decision of respondent No, 2 and the same cannot be subject-matter of a*Constitutional petition. In this behalf learned counsel has referred to the case of Allied Bank of Pakistan Ltd. v. Ijaz Ahmad Abbasi and another 1990 SCMR 1713 and Inayat Ullah Khan v. Chairman, Sindh Labour Appellate Tribunal, Karachi 1990 PLC 19. The last argument is that the Courts below throughout dealt with the case of his client in an illegal manner as much as it was decided piecemeal. The result was frequent remands. In this behalf learned counsel has referred to the cases of A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429 and Abdul Rehman v. Mir Ahmad Khan and another PLD 1983 SC 21.
5. The learned counsel in reply to the arguments submitted that there is a marked difference between the definition of worker as given in section 2(xxviii) and section 2(i) of Standing Orders No, 6 of 1968. The learned counsel for the employee explained that according to section 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, remedy of a worker even under the Standing Orders is under section 25-A of the I.R.O.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the provisions of law and precedents relied by them. The petitioner resisted the grievance petition of the worker amongst others on the legal objection that he is not a worker.
Before proceeding any further, it is advisable to refer to definition of worker as contained in section 2 (xxviii). The same reads as under:- "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 expressed or implied, and, for the purpose of any proceedings 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 It is clear from proviso (b) to this subsection that in order to exclude an employee from the category of the worker the following are the conditions precedent:-
(i) He is being employed in supervisory capacity and
(ii) draws wages exceeding Rs,800 per mensum.
7. The parties were allowed by the Punjab Labour Court to lead evidence on this point. The respondent No, 1 appeared himself as P.W.3 while petitioner examined Muhammad Saleem as R.W.2. The moment respondent No, 1 entered in the witness-box and made a statement on oath that he is a worker then the onus shifted to the petitioner to prove that the respondent was not a worker as defined in the Industrial Relations Ordinance. The petitioner in order to succeed is to satisfy both the conditions contained in proviso (b) to section 2 (xxviii) of Industrial Relations Ordinance, 1969. The bare statement of the worker was sufficient to shift the onus because the admitted position is that the entire record of employment was with the petitioner. The roster of duties, the salary paid and all other record pertaining to other workers was with the petitioner, therefore, it was the duty of the employer to establish and prove its contention as to the status of the petitioner in a grievance petition. The petitioner miserably failed to discharge the onus, therefore, must suffer for the same.
8. This is not all. Whether one is worker or not it is a question of fact, which has to be determined with reference to roster of the duties or the duties performed by the employee. The learned counsel for the respondent No, 1 has I rightly referred to the judgments of Inayatullah Khan and Allied Bank of Pakistan Ltd. There is no merit in the argument of the learned counsel for the petitioner that since respondent No, 1 was proceeded under Standing Orders, therefore, he cannot maintain the petition under section 25-A of the I.R.O. Section 12(3) of the Standing Orders, as pointed out by the learned counsel for the worker, is a complete reply to this argument.
9. This case has exchequered history and I will be failing in my duty if the practice of piecemeal decisions is not depricated. It was the duty of the Labour Court to decide the petition on all points in order to avoid frequent remands. This matter is shuttling between the Punjab Labour Court and the Labour Appellate Tribunal for the last about one decade. The efforts should be to decide the matter as a whole instead of deciding it in fragments. The Honourable Supreme Court in the case of Abdur Rehman ibid held as under:- "This Court has time and again cautioned against piecemeal decision of these and similar matters.
An exposition of principle that it is negation of justice, can be found in Ibrahim v. Muhammad Hussain (1). The fact that it was an appeal case will not make any difference in so far as the basic principle is concerned."
' While in the subsequent judgment of A.F. Ferguson & Co., the Supreme Court has disapproved this practice. The relevant portion reads as under:-- "This Court and even the Privy Council, has not favoured piecemeal and fragmentary decisions of causes; see Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21, Ibrahim v.
Muhammad Hussain PLD 1975 SC 457 and Nanheial and another v. Umrao Singh AIR 1931 P C 33.
In the circumstances of the present case the prayer for exercising Constitutional jurisdiction of the High Court should, therefore, have been declined."
This will be an additional reason for declining to interfere in Constitutional jurisdiction.
10. The result is that this petition is dismissed with costs. The Labour Court before whom the grievance petition of respondent No, 1 is pending is directed to decide the same expeditiously and in any case before 30th April, 1991, even it has to hold day to day proceedings.