' The petitioners through this Constitutional petition have prayed for declaration that the order of Punjab Labour Appellate Tribunal dated 27-3-1985 is without lawful authority and illegal.
2. The relevant facts are that the respondent No, 2 was serving as Engineering Supervisor Phones and was posted at D.G. Khan under Divisional Engineering Telegraph, Multan. One Liaqat Ali, who was temporarily employed as un-approved Telephone Operator at Sakhi Sarwar Exchange absented himself from duty and fraudulently draw his pay for the period of absence but the respondent No, 2 failed to lay the necessary information with the authorities. It was, therefore, decided to initiate the disciplinary proceeding against the petitioner. Accordingly he was charge- sheeted. As a result thereof he was reverted to the post of technician. The order is dated 26-3-1980.
The employee challenged this order through a grievance petition. The petitioners resisted the same. The learned Punjab Labour Court No, IX, Multan recorded the evidence and after hearing the arguments held that the employee is not a 'Workman.' The result was that his petition was dismissed vide order dated 19-3-1984. The respondent No, 2 filed an appeal before the respondent No, 1, the Tribunal held that the respondent No, 2 was a worker and can maintain the grievance petition. The result was that the matter was remanded by the Tribunal to Labour Court vide order dated 27-3-1985 for decision on merits. The petitioners have assailed this order in this Constitutional -petition, which was admitted to hearing and notices were issued to the respondents. The respondent No, 2 alone has entered appearance and contested the petition while respondent No, 1 was proceeded ex parte.
3. The learned counsel for the petitioners in support of the petition has argued that the respondent No, 2 was not a worker and respondent No,1 illegally and incorrectly reversed the findings of learned Labour Court on this issue. In this behalf the learned counsel has referred to notification dated 25- 8-1976 according to which the respondent No, 2 and others were treated as 'employers' for the purpose of I.R.O. It is added that the same position is clear from the charge-sheet. It is submitted that the respondent No, 1 reversed the findings recorded by the Labour Court, on the sole ground that respondent No, 2 was serving as Technician at the time of the filing of the grievance petition, therefore, the same was competent.
' The arguments are summed up with the submissions that this reasoning is illegal and illogical because the status of the employee is to be run at the time of the passing of the order impugned in the grievance petition.
4. On the other hand, the learned counsel for the respondent No, 2 submitted that the notification cannot have precedent over law. In plain words submission is that notification cannot exclude the employees from the category of workman, who are otherwise covered by the definition of worker.
The next submission is that the petitioner failed to produce any evidence as to the nature of the duties of the respondent No, 2 in order to exclude him from the definition of worker. It is argued that whether one is a worker, is a question of fact and onus of proof is on the employer. In this behalf the learned counsel has referred to the judgments in the cases of PECO Ltd. v. Muhammad Aslam 1986 PLC 298; Warner Lambert (Pakistan) Ltd. v. Sindh Labour Court No, III, Karachi and another 1980 L L C 335 and Jasmine Cotton and Silk Mills, Karachi v. Shujahat Ali 1974 PLC Note 28 at p.
17.
5. It is submitted that the petitioner is fully covered by the definition of workman and in this behalf the reference is made to the judgments in the cases of Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another PLD 1975 Kar. 342 (this was upheld by the Hon'ble Supreme Court and the judgment is reported as 1975 PLC 211, Bashir A. Malik v. The Punjab Labour Court (Northern Zone), Lahore and 2 others 1973 PLC 319; Messrs Adam Limited v. Abdul Sattar 1983 SCMR 1313 and Executive Vice-President, United Bank Limited, Circle Office Lahore v. Alam Zeb 1984 PLC 511.
' It is further submitted that the petitioner was not holding any executive post, therefore, covered by the definition of worker. In this behalf it is argued that the words Executive power or officer have not been defined in the I.R.O., therefore, reference has to be made to the meaning of these words assigned legal dictionary. In this context he has referred to Blacks' Law Dictionary.
6. The last submission is that the petition suffers from laches as the order of the Tribunal is dated 27-3-1985 while the present writ petition was filed on 4-11-1986. There is no explanation for a period of about 20 months. In this behalf the reference is made to the judgments in the cases of Barkat Bahi and 2 others v-Settlement Commissioner and 3 others PLD 1978 Kar. 193; Sh. Atta Muhammad v. Housing & Physical Planning Department and others 1980 CLC 446; Murree Brewery Co. Ltd., Rawalpindi v. Province of West Pakistan and 4 others PLD 1981 Lah. 640; Government of Pakistan through Secretary, Ministry of Food and Agriculture Division Food Directorate, Karachi v. Messrs Rafi Associates Ltd. And another 1985 CLC 2234.
7. The learned counsel for the petitioners in reply has argued that since the respondent No, 2 has not submitted the written statement, therefore, the plea of laches cannot be raised by him. In this behalf the learned counsel for the petitioners has referred to Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119.
' It is added that the petitioner has firmly committed himself in the petition that he was serving as Engineering Supervisor, therefore, he is excluded from the definition of worker. In this behalf the learned counsel has referred to Dawood Cotton Mills Ltd. v. Presiding Officer, Sindh Labour Court No, IV, Karachi and others 1979 PLC 50; Pakistan v. Abdul Omni PLD 1964 SC 68; Habib Bank Mianwali v. Shamim Hussain 1985 PLC 862; Muhammad Yaqoob v. Muhammad Ishaq 1980 CLC 2056; Mst.
Haleema Bai and others v. Settlement Commissioner and others 1987 MLD 3215; Employees Welfare Union v. R.B. Industries Ltd., Karachi and another 1976 PLC 43 and 1990`PLC 233.
8. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases and relevant law. The Tribunal proceeded to accept the appeal on the short ground that the appellant before it was serving as Technician at the time of the filing of the grievance petition therefore covered by the definition of 'workman'. On the other hand, the learned counsel for the petitioner has rightly submitted that the reasoning is faulty, illegal and illogical because the status of the employee at the time of the filing of the grievance petition is irrelevant. In this behalf reference can be made to the section 25-A of the I.R.O.
The relevant portion of the same reads as under:-- "25-A. Redress of individual grievances.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or (Collective Bargaining Agent), within three months of the day on which cause of such grievance arises".
It is clear from bare reading of the section that a worker in order to seek redress of his grievance has to bring it to the notice of his employer within 3 months of the day on which cause of such grievance arises. In the present case the employee was aggrieved by order of reversion dated 20- 3-1980, therefore, until he was not a worker at the time of the grievance he cannot issue grievance notice. It is clear that status of the petitioner to maintain a grievance petition is relevant at the time of the cause of action or grievance and not subsequent. The learned counsel for the respondent No, 2 made no effort to defend the order of the Tribunal and rightly he endeavoured to show that his client was a worker on other grounds.
9. The Courts below have not dealt with the matter in its true legal perspective. The respondent No, 2 was admittedly a Government Servant, therefore, real question for determination was whether he is covered by the definition of Civil Servant as given in section 2(b) of the Civil Servants Act, 1973 or not? The learned counsel for the employee maintained that his client was excluded from the definition of Civil Servants in view of clause III of section 2(b). It is submitted that he was neither getting a salary of more than Rs,1,000 nor he was holding any Executive or Supervisory post in terms of Schedule 2 to Workmen's Compensation Act. The learned counsel in this behalf has referred to R.
8 giving the salary of his client as Engineering Supervisor as well as Technician. It is submitted that the total monthly salary of his client was Rs,786 and not Rs,816.50 as given in R.8 because salary never includes in T.A. It is further added that his client was not holding any supervisory or Executive post as is clear from Annexure 'IV dealing with the functions of Engineering Supervisors.
10. I need not to discuss the merits and demerits of the arguments of the learned counsel for the parties in view of the order I propose to make. It is however, clarified that the order of the Tribunal is liable to be set aside on the short ground that its reasoning is clearly illegal, faulty and illogical, therefore, normally the case was to be remanded to the Tribunal for fresh decision in accordance with law but I have decided to remand the matter to the Labour Court, who is yet to decide the grievance petition on merits. This is being done for three reasons: ' Firstly, that the question whether the employee is a civil servant or not, has not been examined by both the Courts; ' Secondly, whether the petitioner is a workman or a civil servant is a mixed question of law and fact, therefore, it is better that the same is decided by the lowest Court in accordance with the evidence on record and law applicable, and ' Lastly, that the Labour Court acted illegally while dismissing the grievance petition of the employee on the ground that he is not a workman instead of deciding whole matter. The Labour Court should have decided all the issues involved together by one of the same order. This would have saved repeated remands. The result of the illegal procedure adopted by Labour Court is that a period of over 6 years have been wasted. Had the learned Labour Court decided the whole petition at one and the same time then there was no need to remand the matter to it either by Tribunal or by this Court.
11. The upshot of this discussion is that this petition is allowed. The impugned orders of the respondent No, 1 as well as of the Labour Court are set aside and it is directed to decide the whole matter, including the issue whether the employee was a civil servant or a workman, afresh in accordance with law and evidence on record.