' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against order dated 10-10- 1990 of Lahore High Court, Lahore, whereby Writ Petition No,7279 of 1990 filed by appellant herein has been dismissed in limine.
2. Briefly stated the relevant facts giving rise to this appeal are that respondent No .3 Hassan Akhtar Siddiqui was employed as Public Relations Officer in Shahi Bottlers (Pvt.) Limited, Lahore and his services were terminated on 31st March 1988 for the reason that management had decided to abolish that post. He filed grievance petition under section 25-A of Industial Relations Ordinance, 1969 before the Labour Court on the grounds that he as workman as his duties were purely clerical and manual. Secondly, that he was reverted on 9-12-1987 as Public Relations Assistant and on his protest was shown absent from duty and not paid wages. Thirdly, he refused to sign blank papers and resultantly his services were terminated. In the written statement it was vehemently denied that respondent No,3 was workman or did manual or clerical work. Averred that he was not reverted but left factory on 10-1-1988 without permission and thereafter remained absent and was so intimated. Other allegations were also denied. In evidence before the Labour Court, respondent No,3 examined himself and on behalf of the management two witnesses were examined namely R.W.1 Amir Hameed Khan, Manager and R.W.2 BA. Shakeel, Accountant.
3. After evaluation of evidence produced by the parties, the Labour Court concluded that respondent No,3 before us was not able to prove that he was doing manual and clerical work which allegation was categorically denied by witnesses of the management. He was Public Relations Officer and had been assisting in litigation in the Courts. Management had separate steno and accour taut. For such reasons it was held that respondent No,3 was not a workman and petition was dismissed. However, this finding was reversed in appeal by Labour Appellate Tribunal on the grounds, firstly that respondent No,3 had summoned record which was not produced by the employer, hence oral evidence was sufficient to prove that he was workman. Secondly, he was covered by the definition of workman as given in section 2(xxviii) of Industrial Relations Ordinance, 1969, as it is not claimed by the employer that he was assigned supervisory duties. In the result order of termination was set aside by the Labour Appellate Tribunal and respondent No3 was ordered to be reinstated. Against that decision writ petition in the High Court by appellant/employer was dismissed on the ground that under section 25-A of I.R.O. Labour Court has full and complete power to enter into questions of facts and same powers can be exercised by Labour Appellate Tribunal as appeal is in continuation of original proceedings. Interference in writ petition was declined on the ground that on the fmding of fact, evidence was properly evaluated by Labour Appellate Tribunal and respondent No3 was rightly found to be workman.
4. Leave has been granted by this Court to examine the contention of appellant that finding of the Labour Appellate Tribunal that respondent No,3 was workman was not sustainable as his duties as Public Relations Officer did not primarily entail clerical and manual work. This question would take us to the pleadings and evidence produced by the parties before the Labour Court. There is no doubt about the fact that burden was upon respondent No,3 to prove that he was a workman and performed purely clerical and manual duties as was claimed by him. It was denied in the written statement that respondent No,3 was workman and performed duties of the nature alleged by him.
In his evidence respondent No,3 stated that his duties were purely clerical and manual. He operated photostat machine and also typed. He attended Court work as representative of the factory; He maintained accounts of petrol, bottles and motor transport. He also maintained accounts of subsidiaries of Shahi Bottlers. Managing Director called him and asked him to sign blank papers which he refused, hence he was shunted out from service. In cross-examination he stated that he was not incharge of tansport but that duty was being taken from him and he used to have vehicles repaired. He did not get any order in writing for doing such works. He served for 3 years and 2 months. There was no typing department in the factory and M.D. Did not have Private Secretary or Steno but he did not do that work. He was given scooter by the company to follow Court cases which was taken back from him.
5. On the other hand R.W.1 Amir Hameed Khan, Manager, deposed that respondent No,3 remained absent from 11-1-1988 to 25-1-1988 and then resumed duty. Exh.Pl was letter which was issued inadvertently and was recalled. Respondent No,3 was given scooter for Court work which was later taken back from him. This witness was cross-examined. Second witness examined was R.W.2 BA.
Shakeel, Accountant, who in his deposition made categorical assertion that respondent No,3 never performed duties in his account section and never maintained record for bottling and petrol. He never worked in the shipping section but was working as P.R.O. And was assisting him in the litigation work before the Courts. In the cross-examination only two questions were asked to which reply was given that this witness never worked under respondent No,3 nor did he know whether respondent No3 had ever charge-sheeted anyone. It may be mentioned that evidence of respondent No3 was recorded on 21-1-1987 and evidence of two witnesses of management was recorded on .7-6-1990. There is application on the record filed by respondent No3 on 25-6-1988 requesting for production of the following record :--
(1) Complete daily report of employees of Ellahi Farm, Badian Road (prepared by respondent No,3) for the year 1987.
(2) Attendance Register of employees of Ellahi Farm, Badian Road (prepared by espondent No3) for the year 1986.
(3) Salary sheets of emplyees of Ellahi Farm for the year 1986.
(4) Register of daily income and expenses of Ellahi Farm for the year 1986.
(5) Register for bank account of Ellahi Farm for the year 1986.
6. It is mentioned in this application that these documents were prepared by respondent No,3 himself. Reply is filed by the management to the effect that no record as mentioned at S.Nos.1 to 5 was maintained at the land owned by Mr. Inam Ellahi, his wife and son and only one Munshi was working at the Farm who brought monthly accounts for checking and after checking the record was not maintained as permanent record. It was further stated that alleged record had no relevancy with the case as respondent No,3 had not stated in his grievance notice or petition that he had been working at the Ellahi Farm. No further action was taken on this application and it is not mentioned in the judgment of the Labour Court probably for the reason that it was not pressed.
Had it been pressed respondent No,3 would have put questions on the subject of Ellahi Farm to R.Ws. 1 and 2, who were examined on 7-6-1990 much after the date of reply which was 15-12-1988.
7. It appears that Labour Appellate Tribunal was in error in considering that documents summoned by respondent No,3 pertain to the record of Shahi Bottlers and were relevant for adjudication upon the issue whether respondent No,3 was workman or not and whether he performed duties of clerical or manual nature. Had these documents been relevant, respondent No,3 'would not have cross-examined R.W.1 and R.W.2 in the absence of these documents and would have insisted for their production before examination of these witnesses. It is clear that after the reply respondent.
No,3 was satisfied that documents sought by him to be produced were not relevant to issues of this case, hence he abandoned his request and did not press it further. Coming back to the burden of proof, it was incumbent upon respondent No,3 to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. Evidence produced before the Labour Court was insufficient and unsatisfactory and on the basis of which finding given by Labour Court is proper and sustainable under the law.
8. Mr. Naeem Bokhari, learned ASC for the appellant has submitted that judgment in the case of Crescent Jute Products Ltd v. Muhammad Yaqoob and others (PLD 1978 SC 207), relied upon by the High Court in support of the finding That Labour Appellate Tribunal was competent to pass any order which Labour Court could have passed, is distinguishable and is not attracted to the facts of this case for the reason that in the reported case employer did not lead any evidence to justify dismisssa l and officers were not produced whose orders were disobeyed by the employee who was dismissed. In such circumstances it was held that appellate tribunal was justified in accepting appeal of employee by holding that his dismissal was unwarranted on factual plane. As against that in the instant case employer had produced evidence and examined two witnesses who gave evidence relevant for controversial issues in the case. Contention is tenable and we are of the view that the reported case is not attracted to the facts of this case.
9. Next contention raised on behalf of the appellant is that as contemplated under section 25-A(5) of I.R.O Labour Court can go into all facts of the case and pass such orders as may be just and per in the circumstances of the case. Labour Appellate Tribunal can exercise the same powers and High Court in Constitutional jurisdiction cannot decline to interfere on the ground that finding of fact by the Trinunal cannot be disturbed even if it is wrong in law. Words "just and proper" as used in sectibn 25-A(5) of I.R.O came up for examination in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447). It was held that word "just" means "according to law and word "proper" means "accurate". "Just and proper" conveys eminent sense of being in accordance with law and to be proper. In the case of Rana Mukhtar Ahmad v.
Punjab Labour Appellate Tribunal and others (PLD 1992 Supreme Court 118) appellant was working as Senior Foreman in the factory and was drawing wages amounting to Rs,1,833 per month. His services were terminated on the ground that they were no longer required. He took up plea in the grievance petition that he was workman and it was so held by Labour Court and Labour Appellate Tribunal. Writ petition filed was allowed on the ground that appellant was not workman and two judgments in his favour were set aside. It was held that essential work that appellant was doing was to supervise the work of contractor and see that he was carrying out the work in accordance with the drawings etc. Given to him but the work performed by him did not involve any skill nor did he do any work of a clerical or manual nature. Close scrutiny of appellant's duties revealed that his work did not involve work of routine or manual nature but required application of mind and supervision of work done by others. Finding of the High Court to that effect was affirmed and appeal was dismissed.
10. The question whether duties of respondent No,3 were in nature supervisory or not was not issue before Labour Court and was not part of pleadings. He did not make such assertion in the grievance petition. In the written statement stand was taken that respondent No,3 was not workman as he was drawing more than Rs,1,500 salary per month and was not paid any bonus according to law. In the Labour Court respondent No,3 did not ask for record relating to his duties, whether they were supervisory or not. On the contrary he asked for record which was not relevant and did not exist. On this point he did not put question to the witnesses of management. R.W.2 Shakeel accountant stated that respondent No,3 was P.R.O. And assisted him in the litigation before Courts and he was not cross-examined on that assertion. Only two questions were put to this witness in cross-examination and to one he replied that respondent No,3 did not charge-sheet anybody. This reply is to be seen in the light of admission of respondent No,3 that his total service was about 3 years and duties, as claimed by the management, were to attend to litigation work in the Courts and for that purpose he was given scooter. In any case on this point no evidence was prodcued because such plea was not taken before the Labour Court and leave was granted on this point.
11. For facts and reasons stated above, we are of the view that respondent No,3 in this case was not a workman as it appears from the evidence produced by the parties. High Court could have interfered in writ jurisdiction as order passed by Labour Appellate Tribunal was not just and proper and consistent with evidence on the record. We, therefore, set aside order of the High Court and Labour Appellate Tribunal and restore order passed by the Labour Court. In the result appeal is allowed and there will be no order as to costs.