The appeal is directed against the decision dated 4-10-1995, rendered by the learned Labour Court at Multan, accepting an application submitted by the United Bank Limited, under Order VII, Rule 11, C.P.C. And dismissing Mr. Mubarik Ali Mehboobi's grievance petition, filed under section 25-A of Industrial Relations Ordinance, 1969, for want of jurisdiction.
2. Mr. Mehboobi had challenged the order of his dismissal from service, by approaching the Labour Court at Multan, on 5-1-1994. Earlier, he had approached the National Industrial Relations Commission. Single Member of the Commission, camping at Lahore, on 6-2-1993, asked an order in his favour, observing that his suspension could not extend beyond a period of 28 days. The suspension order dated 20-5-1992 was, as such, suspended with effect from 16-6-1992. The Bank was directed to pay full wages and allowances to the employee, with effect from 16-6-1992, and sent to the Commission under sealed cover the final report of inquiry, on completion of inquiry, by 30-4-1993. The bank management preferred an appeal before the Full Bench of the Commission at Islamabad. The aforesaid order dated 6-2-1993 was set aside by the Full Bench, presided over by Mr. Justice (Retd.) Atta Ullah Sajjad, Chairman of the Commission, by a decision announced on 2- 9-1993.
3. It was pronounced that the learned Member had assumed jurisdiction, in disregard of the facts of the case and the law applicable, and in making an order that the inquiry report be submitted to him, the learned Member had also travelled beyond the prayer made by the petitioner in the case, and, of his own accord, had assumed jurisdiction, which, in the circumstances of the case, he did not have. It was also observed that no reference to the law, under which period of suspension was to be restricted to 28 days, had been made by the learned Member, who should also have issued a short notice to the management of the Bank, so that full facts could be placed before him, and the management could be saved from an adverse ex parte order. In the opinion of the Full Bench, a petition under clause (g) of subsection (8) of section 22-A of the Ordinance, could be competent only if the aggrieved person could establish that he was a worker and further that he had reasonable grounds to entertain an apprehension of his victimisation through an unfair labour practice on the part of the employer.
4. The Honourable Commission had held Mr. Mehboobi to be an officer and not to be a workman, keeping in view the nature of his duties, as also quantum of his salary. At the same the, it was also observed that it was for the petitioner to show that despite being an officer, he would fall within the definition of 'worker', as contained in the Industrial Relations Ordinance, 1969 and other Labour Laws.
5. In this behalf the contention raised by the learned counsel for the appellant before this Tribunal does not appear to be devoid of force. He maintains that the Commission might have mainly been influenced by failure on the part of the aggrieved person in establishing that he had been made a victim of an unfair labour practice, by reason of his trade union activity. At the end of para. No. 7 of the judgment, it has been observed, "There is no mention at all of any trade union of workers of even of any sort of liaison of the petitioner with any trade union of workers". To hold that a person is a worker, or not, falls within the exclusive domain of the Labour Court and this Tribunal, and a finding recorded in that regard by the N.I.R.C. Would not be binding on either the Labour Court or upon this Tribunal. If a Labour Court proceeds to reject a grievance petition, under Order VII, Rule 11, C.P.C. Without recording evidence, such an order would not be sustainable in law. Provisions of C.P.C. Can be invoked by a Labour Court only for the purposes mentioned in section 36 of the Ordinance. It was so pronounced in 1996 PLC 341 (Sind Labour Appellate Tribunal) and 1990 PLC 441 (Sind Labour Appellate Tribunal). In 1993 PLC 595 (Supreme Court of Pakistan), it has been laid down that even if it is found that provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)Ordinance, 1968 are not available to an employee of National Bank of Pakistan, it would not necessarily lead to the conclusion that he is not entitled to invoke the provisions of section 25-A of Industrial Relations Ordinance, 1969. For coming to a Labour Court, he will, of course, have to demonstrate that he is a workman, as defined in section 2(xxviii) of the Ordinance, and further that a right guaranteed or secured by or under any law, award or settlement has been infringed.
6. If the appellant is not able to establish the aforementioned incidence as a fact, he will be out of Court; but in all fairness he should be afforded an opportunity to prove, as he claims, that he is a workman, entitled to invoke the jurisdiction of the Labour Court for redress of his grievance.
7. Learned counsel for the respondents, relying on 1996 CLC 245 (Karachi High Court), has endeavoured to show that the appellant having approached the Labour Court with unclean hands by reason of having suppressed or concealed the fact of his earlier having approached the N.I.R.C in the matter, and thus being guilty of an iniquitous conduct, was not entitled to any relief. In this behalf, it is submitted by the appellant that he had knocked at the doors of the N.I.R.C. Against his unjustified suspension, extending over an indefinite period, whereas he has now come to the Labour Court, assailing the validity and operativeness of the order of his removal from service. It is to be noted that the Honourable Karachi High Court had made the observation, while disposing of a writ petition, and it is so well-known that under Article 199 of -the Constitution of Pakistan, the High Court exercises its extraordinary discretionary jurisdiction, and it is up to the High Court to deny or to afford a relief of equitable nature to the petitioner before it, depending always on judicious exercise of discretion aimed at securing advancement of justice and preventing perpetuation of injustice. The appellant says, he had not indulged in any misstatement or concealment of fact in a deliberate, calculated or motivated manner; he just omitted to state in the grievance petition, filed before the Labour Court, that prior to that he had recourse to the N.I.R.C.
Also. Even if there was any omission or lapse on his part, as alluded to or alleged by the other side, its impact was not fatal and it was not even of very grave character. It has also to be borne in mind that substantial justice should not be denied to an aggrieved person by giving undue weight to technicalities. I do not think that there was any intentional omission or suppression on the part of the appellant in regard to material facts or the history of litigation, so as to preclude him from coming to the competent Court. It has also been said that Labour Court should not have refused to afford an opportunity to the appellant to bring home his assertion of being a workman, entitled to invoke the provisions of section 25-A, as grievance-petitioner in that forum. In 1990 PLC 441 (Sind Labour Appellate Tribunal) it has been observed that provisions of Order VII, Rule 11, C.P.C. Would not enable a Labour Court to cut short the procedure and decide mixed question of fact and law without providing opportunity of producing evidence to the parties.
8. The learned Labour Court appears to have been 'overwhelmed' by the observations made and 'subdued' by the finding recorded by the N.I.R.C., although indirectly. I would allow the appeal and set aside the Labour Court's order dated 4-10-1995 and will leave the parties to bear their own costs. The case is remanded to the Labour Court at Multan for its decision on merits, in accordance with law. The parties shall appear in the said Court for further proceedings on 30-9-1996. As, however, the appellant appears to have suffered tremendously, owing to his remaining out of service, over a long the, it is desired that the grievance petition shall be disposed of finally before December winter spell.