1. MUKHTAR AHMAD JUNEJO, J.---Petitioner Yusuf Ali Shah has sought leave to appeal against dismissal of his Constitutional Petition No. 194 of 1996 by a learned Division Bench of the High Court of Baluchistan on 3-9-1996.
2. Admittedly petitioner Yusuf Ali Shah was appointed by Quetta Serena Hotel as F&B Cashier with effect from 18-1-1989. Later on he was made Assistant Manager. On 29-1-1995 the petitioner was placed under suspension for a period of three days, in consequence of a complaint filed against him by Mst. Shazia Manzoor of P.I.A. Female crew, who had stayed in said hotel on the night of 25-11- 1994. In her complaint she alleged that on the said night she was in her room in said hotel, when at 3-00 a.m. The petitioner came to her, made inquiry about a person who left her room half an hour earlier and put searching questions to her in a very rude and threatening .Manner. That the petitioner shifted her to another room for getting her room searched by the Security Guard. Mst.
3. Shazia Manzoor in her complaint further alleged that the petitioner black--mailed her and questioned her, as to, what he would get from her if he did not report the matter to her Captain. The petitioner was alleged to have done all this at back of the Hotel Receptionist and without reducing the same in writing in the logbook.
4. On 30-1-1995 the petitioner was issued show-cause notice, calling upon him to explain in writing his response to the allegations, by 3-2-1995. Subsequently under an order dated 12-2-1995 the petitioner was dismissed from service, after holding of an inquiry by Afzaal Aslam Mirza.
5. On 15-3-1995 the petitioner sent a grievance notice to the management of said hotel claiming restoration of service with all benefits. Subsequently on 4-4-1995 the petitioner filed grievance application under section 25-A of I.R.O. In a Labour Court at Quetta, challenging the order dated 30-1-1995 about show--cause notice and the letter of dismissal dated 12-2-1995.
6. The grievance application was contested by respondent No. 1 hotel, which in his written statement took pleas that the petitioner had no guaranteed or secured right for being enforced under section 25-A of I.R.O., that no valid grievance notice was given, that the order of dismissal was after due inquiry and not open to interference and lastly, that the petitioner was not a 'worker" or "workman" and he had no right to move the Labour Court under section 25-A of I.R.O. On merits it was averred that the terms and conditions of service, between the petitioner and the respondent No. 1, were regulated by law of master and servant and that the allegations against the petitioner were duly proved.
7. After settlement of issues and recording of evidence, learned Labour Court under an order dated 14-9-1995, dismissed the grievance application after taking view that the petitioner was not a "workman" under the I.R.O. And his grievance application was not maintainable.
8. The petitioner challenged dismissal of his grievance application before the Labour Appellate Tribunal, Baluchistan under an appeal, which was dismissed on 20-5-1996. Thereafter, the petitioner invoked jurisdiction of High Court of Baluchistan under Article 199 of the Constitution of Pakistan, against the orders of the Labour Court as well as of the Labour Appellate Tribunal. Under the impugned judgment dated 3-9-1996, a learned Division Bench of the High Court of Baluchistan dismissed petitioner's Constitution Petition No. 195 of 1996 in limine. Hence this petition.
9. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner argued that although the petitioner was posted as Assistant Manager at the the of his being proceeded against by the respondent No. 1, he was doing the clerical and manual work and was thus a "workman" as defined in clause (i) of section 2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter mentioned as the Ordinance, 1968). Learned counsel further argued that no opportunity was provided to the petitioner by the trial Court, to lead evidence to show that he (petitioner) was going manual and clerical work although he was posted as Assistant Manager. It was also argued that the petitioner, although covered by the definition of workman given in Ordinance, 1968 was entitled to move his grievance application under section 25-A of I.R.O. By virtue of clause (3) of Standing Order 12 of the Ordinance, 1968.
10. The impugned judgment shows that in the Labour Court both the parties opted to argue the matter without leading evidence. This observation was rebutted and controverted by the learned counsel for the petitioner who stated that no such statement was made and that there was nothing of that sort in the proceedings before the Labour Court.
11. There is no gainsaying of the fact that definition of worker and workman given in I.R.O. Is materially different from the same given in Ordinance, 1968. In the Industrial Relations Ordinance (I.R.O.) the definition of worker and workman is given in clause (xxviii) of section 2.
12. It may be mentioned here that originally the grievance procedure was provided in Standing Order 18 of the Ordinance, 1968 and a right was given to a "workman" as defined in said Ordinance, 1968 who was aggrieved by the termination of his services, or dismissal or discharge, to first bring his grievance to the notice of the employer and on failure to obtain redress, to make a complaint to the Labour Court. The Labour Laws (Amendment) Ordinance IX of 1972, which came in force on 13- 4-1972 omitted Standing Order 18 and provided grievance procedure in the newly added section 25-A of I.R.O. Said section entitled a "worker", as defined in the I.R.O., to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any aware or settlement, for the the being in force, to the notice of his employer in writing either by himself or through his Shop Steward or Trade Union, within three months of its arising. On receiving such grievance notice, the employer had to communicate his decision in writing to the worker, within the period mentioned in clauses (2) and (3) of section 25-A of I.R.O. In case of failure, the worker may take the matter to the Labour Court directly or through his Trade Union, for giving the award. Such right can be exercised by the worker, also in case he gets the decision within statutory the but is not satisfied with the same. The Ordinance IX of 11972, while adding section 25-A in the I.R.O., amended Standing Order 12 of the Ordinance, 1968 creating hurdles in the way of termination of employment of a worker or workman: Thereafter, in 1973 Act (XXIII of 1973) came in force and it amended clause (3)' of the Standing Order XII of the Ordinance, 1968. The amended clause (3) of Standing Order 12 reads as below "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions or section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. "
13. The difficulty arose about looking for the definition of "workman", who under the Ordinance IX of 1972 was made entitled to move grievance application under section 25-A of I.R.O. There is a fundamental differ6nce between the definition of "worker" and "workman" given under clause (xxviii) below section 2 of I.R.O. And given in clause (i) below section 2 of the Ordinance, 1968. For invoking the provisions contained in section 25-A of I.R.O., the definition of "workman" in the I.R.O.
14. Became applicable for the purposes of grievance application, but such definition excludes persons whose services have been terminated or who had been removed, retrenced, discharged or dismissed otherwise than in connection with an industrial dispute or as a consequence of an industrial dispute as defined in the I.R.O. In view of the amendment in Standing Order 12 (3) of the Ordinance, 1968, the provisions contained in section 25-A of I.R.O. Have become virtually a part of the Ordinance, 1968. The amendment brought about in Standing Order 12 (3) of the Ordinance, 1968 has expanded the scope of section 25-A of I.R.O. Because in view of the enabling provisions contained in clause (3) of Standing Order 12 of the Ordinance, 1968, even the workers not covered by clause (xxviii) of section 2 of I.R.O. Can seek redress of their grievance under section 25-A of I.
15. R.O. If. They, are covered by clause (i) of section 2 of the Ordinance, 1968. By the amendment brought about by Act XXIII of 1973, the Legislature was manifesting its intention to confer on persons, who are aggrieved by the termination of their employment, discharge, dismissal etc. From service, the same right to file a grievance application under section 25 of LR.O., as if they had been aggrieved "workman" under the I.R.O.. It is clear that workman covered by clause (3) of Standing Order 12 are not required to be "workmen" or "workers" under the I.R.O. In the instant case the dismissal of the petitioner from service was not in connection with an industrial dispute or as a consequence of such dispute and his dismissal did not lead to an "industrial dispute". In the circumstances, the petitioner does not appear to be covered by definition of "worker" or "workman" as given in the I.R.O. However, it is to be considered if the petitioner is covered by the definition of "worker" and "workman" as given in the Ordinance, 1968.
16. Leave to appeal is, therefore, granted to consider said point, as well as the other points contended by the learned counsel for the petitioner.