' MIAN MUHAMMAD AJMAL, J.---M/s. Sartaj Flour Mills (Pvt.) Ltd. Through its Manager petitioner herein, in this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has sought declaration that the judgment/decrees dated 27-2-1994 and 6-7-1995 passed by the learned Presiding Officer, Labour Court, Haripur and the Chairman, Labour Appellate Tribunal, N.-W.F.P., Peshawar to be illegal, without lawful authority and of no legal effect and as such petition of respondent No,1 filed under section 25-A of Industrial Relations Ordinance, 1969 be dismissed.
2. As per assertions of the writ petition Ahmed Din respondent No, 1 was employed in the petitioner mill as fitter on 2-5-1983. He went on leave on 30-8-1992 for 4 days and thereafter did not return to perform his duties. He was repeatedly reminded to resume his duties but he abstained, therefore he was dismissed by the petitioner on 5-12-1992. The respondent No, 1 thereafter submitted his resignation on 28-12-1992 which was not accepted. The respondent No, I served the petitioner mill with a grievance notice under section 25-A of the I.R.O., 1969 and after failing to get any response to the said notice filed a grievance petition under section 25-A of the I.R.O., 1969 before the Labour Court, Haripur, respondent No,
2. The parties adduced their evidence, on the assessment whereof the Labour Court accepted the grievance petition, set aside the dismissal order and accepted the resignation with effect from 30-8-1992 and also held respondent No, 1 entitled to the payment of gratuity for the period from 20-5-1983 to 30-8-1992 after detecting the pay of notice period of one month. The petitioner feeling aggrieved of the said order filed an appeal before the Labour Appellate Tribunal, N.-W.F.P., Peshawar which was dismissed by the learned Chairman, Labour Appellate Tribunal vide his order dated 6-7-1995 which are impugned herein.
3. Learned counsel for the petitioner contended that both the Courts below have not properly appreciated the evidence on the record and the law applicable to the facts of the case. He submitted that the respondent No, 1 was not a workman within the meaning of section 2(xxviii) of the I.R.O. Hence he could not invoke the jurisdiction of the Labour Court. He argued that for the recovery of gratuity a separate forum has been provided under the Payment of Wags Act, 1936, and its section 22 excluded the jurisdiction of other Courts to entertain such claims. He contended that the number of workers employed in the Mill was less than 50 therefore, in view of second proviso of section 1(4) of the Ordinance No, VI of 1968, clauses (6) of Standing Orders 12 and 15 shall not apply to it. Hence the orders passed by respondents Nos. 2 and 3 are illegal and without lawful authority.
4. We have given due consideration to the submissions of the learned counsel and have perused the available record. The points agitated before us are almost the same which were raised before respondents 2 and 3, which have appropriately been dealt with and repelled by them. According to the definition of worker and workman as given in clause (xxviii) of section 2 of the I.R.O., any person employed in an establishment or industry for hire or reward either directly or through a contractor with express or-implied terms, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute including a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a sequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute.
Admittedly respondent No, 1 was employed as fitter in the. Petitioner mills who was dismissed vide letter dated 5-12-1992, which was impugned in petition under section 25-A of the I.R.O., 1969 before the Labour Court. Since he qualified the conditions of a workman as envisaged in the aforesaid definition, therefore he could competently invoke the jurisdiction of Labour Court. Relationship of employer and employee being a question of fact has been properly determined by the Labour Court and cannot be allowed to be reopened in writ jurisdiction.
5. The Authority' appointed under subsection (1) of section 15 of the Payment of Wages Act, 1936 can adjudicate claims arising out of deductions from the wages or non-payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages but it has no jurisdiction to determine the question of dismissal from service, for which jurisdiction of the Labour Court had to be invoked under section 25-A of the I.R.O., 1969. Under section 17 of the Payment of Wages Act, appeal lies before the Labour Court constituted under the I.R.O. Against the order of the Authority, therefore the bar as embodied in section 22 of the Act would not be applicable to Labour Court but to Civil Court to entertain any suit for the recovery of wages or any deductions from the wages. Respondents Nos.2 and 3 after following the proper procedure and hearing both the parties have competently exercised their jurisdiction as conferred by the I.R.O. And no illegality or jurisdictional infirmity could be pointed out, hence jurisdiction under Article 199 of the Constitution of Pakistan cannot be allowed to be used as right of second appeal when no such right is permissible under the law.
6. The learned Labour Court regarding the number of workman and applicability of section 1(4) of Ordinance No, VI of 1968 observed as under:-- "It is provided that an establishment employing less than fifty workmen is exempt from the provisions of Standing Order 12(6) and (8) pertaining to the payment of gratuity but yet there is no reliable evidence on record to hold that the respondent Sartaj Flour Mills, did not employ fifty or more workers on any day during the preceding twelve months. Moreso, this plea is also not taken in the written statement by the respondent establishment. The only evidence on the point is the solitary statement of Ghulam Safdar (R.W. 1) who produced self-prepared attendance register for the year 1992 and stated that there were employed not more than twenty-seven workers. This statement of the Manager of the respondent establishment was not sufficient to establish that there had not been employed fifty or more workmen on any day during the preceding twelve months. The respondent was required to give details of the workmen, working on the plant and to have produced some independent evidence in support of its plea. Petitioner in the cross- examination had however, stated that about fifty persons were employed in the Flour Mills. In the stated circumstances, the contention of the learned counsel cannot prevail and I hold that the respondent establishment is not exempt from provisions of Standing Order 12(6) and (8)."
' While the learned Chairman, Labour Appellate Tribunal dealt with this point in the following terms:- - "The lack of Labour Court jurisdiction in the matter was also agitated as, according to the learned counsel, the number of employees in the mill was less than 50 and, therefore, under the second proviso to section 1(4) of the S.0.0., the Labour Court was not competent to entertain a claim of gratuity against such a Mill. This objection relates to a question of fact and should have been raised in the written statement so that the petitioner had its knowledge and had an opportunity to adduce evidence on this point. But the written statement reveals that such an objection has not been taken therein, therefore on this count alone the plea of the appellant's Advocate is not acceptable. Moreover, the appellant has also not brought reliable documentary evidence on record to prove this fact as excepting bare statement there is no other creditworthy document from the Mill record in support of this objection. The learned Labour Court did take note of the objection and has correctly discarded it."
' The actual number of persons employed in the Mills was to be given by the petitioners which they failed to bring on record through any documentary evidence, hence no exception to the aforementioned findings can be taken.
' In view of the above, this writ petition being devoid of any merits is dismissed in limine.