' MUMTAZ ALI MIRZA, J.---The facts giving rise to the instant Constitutional petition are that respondent No, 3 i,e, Muhammad Ilyas S/o Nazar Hussain was employed as a workman in the petitioner-company. During the course of his service with the petitioner-company, he was charge- sheeted for misconduct as cartridges worth thousands, which were in his custody, were found short. Consequent thereupon an inquiry was conducted in which the said respondent admitted his guilt. He was as a result of the said charge having, thus, been proved against him dismissed from petitioner's service.
2. Feeling, thus, aggrieved of his dismissal in the manner aforementioned, respondent No, 3, served a grievance notice on the petitioner-company .And, thereafter, pursuant thereto instituted a petition under section 25-A of the I.R.O. In the Punjab Labour Court No, 6, Rawalpindi, respondent No, 2, in the instant petition. The said Labor Court on the basis of evidence held the petitioner as being connected with P.O.F. (Pakistan Ordnance Factories) and Armed Forces of Pakistan and found that the Industrial Relations Ordinance, 1969, where under the grievance petition had been moved before it, was not applicable to the service of the petitioner-company by virtue of the provisions of section 1(3)(a) of the said Ordinance. Finding, thus, the service of the petitioner-company as being out of the purview of the Industrial Relations Ordinance, 1969, on the basis of the provisions contained in section 1(3)(a) aforementioned, the said respondent No, 2 dismissed the petition of respondent No, 3 under section 25-A of the I.R.O.
3. Being, thus, dissatisfied with the said decision of the Punjab Labor Court No, 6, i,e, respondent No, 2, herein, respondent No, 3 preferred an appeal there against before the Punjab Labor Appellate Tribunal, Lahore, respondent No,
1. The said Labor Appellate Tribunal accepting the said appeal of respondent No, 3, set aside the order of the Punjab Labor Court No, 6 and remanded the case to respondent No, 2, herein, for a decision thereof afresh holding that the Industrial Relations Ordinance, 1969 was applicable to the petitioner-company's service and that the Punjab Labor Court No, 6 had the jurisdiction to examine and adjudicate upon the grievance of respondent No, 3 under section 25-A of the I.R.O. The instant Constitutional petition is accordingly directed against the said order of remand passed by the Punjab Labor Appellate Tribunal, Lahore, respondent No, 1, herein, and the main plea raised in support thereof is as to the absence of jurisdiction of the Tribunal under the Industrial Relations Ordinance, 1969 to entertain the grievance petition of respondent No, 3 thereunder. It may be appropriate to remark here at this juncture that the instant writ petition was admitted to regular hearing only to consider this very question of jurisdiction.
4. Main Tariq Mahmood, learned Deputy Attorney-General for Pakistan appearing for and on behalf of the petitioner-company placed reliance on the following in support of his plea that the decision recorded by the Punjab Labor Court No, 6 i,e, respondent No, 2 was correct and that of the Punjab Labor Appellate Tribunal/respondent No, 1 was wrong:--
(1) Section 1(3)(a) of the I.R.O. 1969;
(2) 1993 SCMR page 1837
(3) 1983 SCMR page 1101;
(4) 1994 SCMR page 2213 (2) 1984 PLC page 1645.
5. In order to lay the foundation for the inapplicability of the Industrial Relations Ordinance, 1969 to the service of the petitioner-company, the learned Deputy Attorney-General for Pakistan relied upon the following statement made by respondent No, 3 before the Punjab Labour Court No, 6 in support of his grievance petition under section 25-A of the I.R.O. 1969:-- "I know what is P.O.F. And I only know some of the items manufactured therein, these are Arms and ammunitions. Wah Industries sells the ammunitions. The present Managing Director of the respondent-company was previously the Chief Superintendent of P.O.F. Wah. I rlo not know who are Directors of the respondent. I have served for 9-1/2 years with the respondent. There is one Mr. F.A.
Sahib (Financial Adviser). He is Financial Adviser of P.O.F. General Talat Masood, who is Chairman of P.O.F. Is also the Chairman of the respondent-company. I cannot deny the suggestion that all the Directors of the respondent Board are employees P.O.F. The previous Managing Director of the respondent was Mr. C.M. Sharif, who was transferred from the post of Managing Director, Wah Industry to P.O.F. As Chief Superintendent."
6. On the basis of the statement, thus, made by respondent No, 3 before the Punjab Labour Court No, 6 which has been reproduced herein-above the learned Deputy Attorney-General for Pakistan submitted that the Pakistan Ordnance Factory and the petitioner-company were inter-connected and inter-dependent. Functionaries/officials of the one were transferred to the other and what was manufactured by the Pakistan Ordnance Factories was sold by the petitioner-company as its Sales Department. This close connection between the petitioner-company and the Pakistan Ordnance Factories, Wah clearly established that the service of the petitioner-company was connected with and incidental to the Armed Forces of Pakistan for whom the said Ordnance Factories were manufacturing arms and ammunitions.
7. Having, thus, eluded briefly to the foundation laid by the learned Deputy Attorney-General for his version of the case, I shall now proceed to discuss briefly the provisions of law and the case-law relied upon by him.
8. As the main reliance of the learned Deputy Attorney-General was on section 1(3)(a) of the I.R.O., 1969, the same is reproduced hereunder for facility of reference :
(i) Section 1(3)(a).--- "It shall not apply to any person employed---in the Police or any of the Defense Service of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government." A perusal of the above provision of the Industrial Relations Ordinance, 1969 would show that in order to make a service connected with Defence Services of Pakistan or the Armed Services or an Ordnance Factory two expressions have been used in this section 1(3)(a) and these are, "connected with or incidental to".
It appears, therefore, not only appropriate rather imperative to discover for ourselves as to what do these two expressions stand for or in other words what is their import or connotation. Now, both these expressions have been defined in "Black's Law Dictionary Fifth Edition" to mean as under:-- "Connected".---Joined, united by junction by an intervening substance or medium, by dependence or relation, or by order in a series.
"Incidental".---Depending upon or appertaining to something else as primary, something necessary, appertaining to, or depending upon another which is termed the principal, something incidental to the main purpose."
(ii) 1993 SCMR page 1837 ' Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary and others ' In this judgment, provisions of section 1(3)(a) of the Industrial Relations Ordinance, 1969, were examined by the Humble Supreme Court of Pakistan with reference to the employees of the Cantonment Board and it was held that the Cantonment Board though not an "installation" but was concerned with services connected with defense. Management and administration of the Cantonment Board vested in the Cantonment Board and Cantonments themselves being the quarters of the Armed Forces, their management and upkeep was necessarily a service which was directly concerned with the armed Forces and only incidentally with civilian population residing in Cantonments. Employees of Cantonment, therefore, were held, to be excluded from the application of Industrial Relations Ordinance, 1969.
(iii) 1983 SCMR 1101 ' Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others With reference to the service of Canteen Stores Department, the Humble Supreme Court held in this judgment that the job of the said Department was not only to supply the entitled personnel with articles of standard quality of the daily use, but what was more important to form the basis of an efficient Canteen Organization in peace and war for troops located anywhere in the country and operational areas during the war. This aspect of the purpose of the C.S.D. Clearly made it out to be an Organization connected with Armed Forces and hence covered by exemption prescribed in subsection (3) of section 1 of the Industrial Relations Ordinance, 1969.
(iv) 1994 SCMR 2213 ' Trustees of the Port of Karachi v. Muhammad Saleem This judgment was pressed into service to support the contention raised by the learned Deputy Attorney-General in ground (E) of the writ petition to the effect that respondent No, 3 who made the grievance petition before the Punjab Labour Court under section 25-A of the I.R.O. 1969, was not a workman within the contemplation of section 2 (xxviii). For, in order to maintain a petition under section 25-A of the I.R.O. Where under respondent No, 3 made his petition as aforesaid, he had to be a workman within the meaning of the foretasted provisions of the said Ordinance. It was held in the judgment referred to herein by the learned Deputy Attorney-General i,e, "1994 SCMR 2213" that a person who had been dismissed, discharged, retrenched, laid off or otherwise removed from employment was not a "worker" unless his dismissal, discharge etc. Had connection with or was in consequence of an industrial dispute or whose dismissal, discharge etc. Had led to such a dispute. On the basis of this judgment, the learned Deputy Attorney-General maintained that the individual dispute of a workman which was unrelated to an industrial dispute and who was not in service could not be taken cognizance of by the Labor Court. The dismissal of respondent No, 3 was not relatable to an industrial dispute. He was a dismissed workman and as such he could not maintain his petition under section 25-A of the I.R.O. In terms of this judgment.
(v) 1984 PLC page 1645 ' Muhammad Ali and others v. Sindh Labor Court No, 1, Karachi and others ' Under head note B at page 1645 it was held in this judgment that the term "workman" appearing in section 7(1)(d) to be read in context or subject in which it appears viz. That "he should be a person actually engaged in establishment". Further held that if intention of Legislature had been to use term "workman" in section 7(1)(d) in same sense in which defined in section 2(xxviii) then words "actually engaged in establishment" appearing after word "workmen" in section 7(1)(d) would be redundant. Term "workman" defined in section 2(xxviii) to be read subject to rider in opening sentence in section 2 viz. "unless there is anything repugnant in the subject or context." Workman dismissed in consequence of an industrial dispute though deemed to be a "workman" under section 2(xxviii) but shall not be deemed to be a "workman" actually engaged in establishment.
Workman dismissed from service like respondent No 3 for misconduct and that too not in connection with an industrial dispute, could not be deemed to be a "workman" within the meaning of section 2(xxviii). On the basis of the reasoning, thus, enunciated in this judgment, too, respondent No, 3 was neither a workman, having been dismissed, nor could he agitate against the dismissal, the same not being relatable to an industrial dispute.
9. Learned Deputy Attorney-General also argued although halfheartedly that there being no provision in the Industrial Relations, Ordinance, conferring power of remand on the Labor Appellate Tribunal, the order made by the Tribunal should be struck down for this additional reason as well.
With respect for the Deputy Attorney-General, I may point out that his this submission did not appear to make much impression. For, I am of the view that the power of remand was a natural incidence of the appellate power vesting in the Punjab Labor Appellate Tribunal and of necessity shall be deemed to be vested in it. No fault could, therefore, be found with the order of remand passed by the Labor Appellate Tribunal from this stand point. However, the order of remand as rightly argued by the learned Deputy Attorney-General did suffer from jurisdictional defect on the basis of the submissions made by him based on the provisions of section 1(3)(a) of the I.R.O., 1969.
10. Ch. Sadiq Muhammad Waracih, Advocate, appearing on behalf of respondent No, 3 placed reliance on the following judgments:--
(i) 1985 PLC 1053 ' Vice-President, National Bank of Pakistan, Gujranwala Zone and another v. Punjab Labour Appellate Tribunal and 7 others ' Now, apart from the fact that this D.B. Judgment of the Lahore High Court would not overrule the judgment of the Hon'ble Supreme Court of Pakistan referred to hereinabove (1994 SCMR page 2213), this judgment relied upon by the learned counsel for respondent No, 3 with reference to the provisions of section 2(xxviii) of the Industrial Relations Ordinance is distinguishable in that it held the dismissed workman as competent to maintain a petition under section 25-A of the I.R.O. Who had been dismissed/removed in consequence of an industrial dispute. Such is not the case of respondent No, 3, herein, and as such this judgment relied upon by the learned counsel for respondent No, 3 is of no avail to him.
(ii) 1987 PLC page 946 ' Messrs Sufi Soap and Chemical Industries Limited, Lahore v. Punjab labor Appellate Tribunal and another.
' This Single Bench judgment hy my Lord Raja Atresia Khan, J., as his Lordship then was, held the Constitutional petition brought to challenge the order of remand passed by the: Labor Appellate Tribunal as being incompetent on the ground that the labor Appellate Tribunal in exercise of the appellate jurisdiction was competent to remand the case in the interest of justice and that there being no jurisdictional defect in the order of remand of the Tribunal such order of remand was perfectly legal and could not be questioned. With respect, it may be pointed out that this judgment too is not of any avail to the case of Ch. Sadiq Muhammad Waraich, Advocate, in that there was no jurisdictional defect in the order passed by the Labor Appellate Tribunal in the reported case. In the case in hand and under examination it is the case of the petitioner that the Labor Appellate Tribunal had no jurisdiction in view of the provisions of section 1(3)(a) of the Industrial Relations Ordinance, 1969. The order recorded by the Labor Appellate Tribunal was Coram non juice and without jurisdiction.
11. In the light of the discussion hereinabove made, the provisions of law examined and the case- law surveyed, the position which emerges is that:--
(i) the respondent No, 3 being a dismissed employee could not fall within the definition of a workman as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969, to be competent to maintain a grievance petition under section 25-A of the I.R.O.;
(ii) assuming for the sake of argument that notwithstanding his dismissal be could still be considered as a workman as defined in section 2(xxviii), his dismissal from service not being relatable to an industrial dispute, he could not be treated as a workman and competent to maintain a petition under section 25-A of the I.R.O.;
(iii) that on the basis of material placed on the record and brought to the notice of this Court and the case-law referred to by the learned Deputy Attorney-General for Pakistan, it was established beyond doubt that the service of the petitioner-company which was functioning as a Sales Department of Wah Ordnance Factories for the sale of the Arms and ammunitions produced and manufactured by the latter was connected with and incidental to (to borrow the n expressions from section 1(3)(a) of the I.R.O.) the Armed Forces of L' Pakistan as also Pakistan Ordnance Factory which was maintained by the Federal Government was clearly out of the purview of the Industrial Relations Ordinance, 1969. The said Ordinance being, thus, inapplicable, the grievance petition instituted by respondent No, 3 before the Punjab Labor Court No, 6, respondent No, 2, herein, under section 25-A of the I.R.O. Was wholly incompetent and was rightly dismissed as such by the said labor Court. The order of remand passed by the Punjab Labour Appellate Tribunal setting aside the order of the Punjab labor Court No, 6 was wholly without jurisdiction and of no legal effect and the same is declared as such by accepting the instant Constitutional petition. In view of the intricate questions of law involved in the case the parties are left to bear their own costs.