' MAMOON KAZI, J.---This appeal by leave of this Court, arises out of the judgment of the Peshawar High Court dated 5-8-1996 in Writ Petition No. 84 of 1992.
2. Brief facts of the case are that respondent No. 1, Abdul Rashid, was employed by Mustehkum Cement Limited, the petitioner, as Assistant Officer Accounts. In 1988 his explanation was called for on account of certain irregularities found in the accounts for which he was charge-sheeted and subsequently his services were terminated on 20-9-1988.
3. The respondent filed his grievance petition before the Labour Court at Haripur under section 25-A of the Industrial Relations Ordinance 1969 (hereinafter referred to as "the Ordinance"). His petition was, however, dismissed by the Labour Court, vide order dated 27-6-1991, as it was held that the respondent was not a "workman". The appeal filed by him before the Labour Appellate Tribunal was also dismissed for the same reason and consequently, the respondent filed a constitutional petition before the Peshawar High Court. The petition was accepted as the learned Judges of the High Court, in view of the nature of duties performed by the respondent, found that he was a "workman". They also found that the respondent had not been fairly dealt with as the General Manager of the petitioner, Wazir Ali, had acted as a prosecutor, as a witness and as an "executor".
They also found the charge-sheet to be time-barred as the same had been served upon the respondent beyond the period of limitation as provided in Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the "Standing Orders Ordinance"). Consequently, the respondent was ordered to be reinstated in service with effect from the date of his dismissal with back benefits.
4. Leave was granted to consider whether the said respondent was a A workman or he was performing functions in supervisory or managerial capacity.
5. Raja M. Akram, learned counsel for the appellant, has argued while relying upon the definition of "workman" contained in section 2(xxviii) of the Ordinance that the said respondent was performing functions of supervisory and managerial nature, and therefore, he was excluded from the purview of the said definition of ' workman' and hence he could not seek redress of his grievance before the Labour Court under section 25-A of the Ordinance.
6. Section 25-A of the Ordinance provides that a "workman" may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award settlement to the notice of his employer in writing either himself or through his shop steward or collective bargaining agent, within the time as provided in the said section. In case the grievance is not redressed by the employer and the matter is taken by the workman to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it, as if such matter were an industrial dispute. "Workman" has been defined in section 2(xxviii) of the Ordinance as under:-- "Worker" and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person:--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per D or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
6-A. The definition of "workman" shows that the terms "workman" and "employer" are inter-related.
"Employer" has been defined by section 2(viii) of the Ordinance as under:--- "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes:--
(a) an heir, successor or assign as the case may be, of such person or body as aforesaid;
(b) any person responsible for the management, supervision and control of the establishment;
(c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) in relation to an establishment run by or on behalf of a local authority, the office appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority; Special Provision.---For the purpose of distinction from the category of "worker or workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who, belong to the superior, managerial, secretarial directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers.
(e) In relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof."
7. It may be pointed out that at the time of his removal from service, the respondent was designated as Assistant Officer Accounts and, according to the evidence respectively led by the parties before the Labour Court, the respondent was a Manager of a fair price-shop owned by the petitioner and there were five other employees working with him in the said shop. The respondent used to maintain accounts and he had also been entrusted with distribution of different kinds of edibles to the workers from the counter. There were two senior clerks, a helper and a weigh-man also working with him. He used to sell articles at the counter and maintain record thereof. The respondent did not possess any power of hire and fire. Even leave applications received by him from other workers used to be forwarded by him to the Labour Officer.
8. It was on the basis of this evidence that, the learned Judges of the High Court concluded that the respondent was a 'workman'.
9. The definition of the terms "worker" or "workman", as contained in the Ordinance, indicates that persons falling within the definition of "employer", persons mainly employed in managerial or administrative capacity or persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensem or persons performing functions mainly of managerial nature have been excluded from the said definition. It is also pertinent to note that persons who have been dismissed, discharge, retrenched, laid-off or otherwise removed from employment have been included in the said definition, but only in case such dismissal, discharge, removal etc. In connection with or in a consequence of an industrial dispute. However, persons who have been dismissed, discharged or removed from service otherwise than in connection with or in consequence of an industrial dispute are not included in the said definition. Therefore, although a person, who has been dismissed, discharge, etc. In connection with or in consequence of an industrial dispute can seek redress of his individual grievance in respect of a right guaranteed to him, as provided in section 25-A of the Ordinance, but such right would not be available to a person who has been dismissed, discharged, or removed from service otherwise than in connection with or as a consequence of an industrial dispute. Reference in this regard may, however, be made to Standing Order 12(3) in the Standing Orders Ordinance, which provides as under:-- "12(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 of 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."
9-A, The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of section 25-A of the Ordinance. The words "and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redressed of such grievance the procedural provisions of section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3). However, the Legislature has provided for a different definition of the term "workman" in clause (i) of section 2 of the Standing Orders Ordinance, which provides as under:-- "(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
10. It is pertinent to notice that the two definitions of "workman", one provided in the Ordinance and the other provided in the Standing Orders Ordinance are completely different. The question which, therefore, arises is, which of the two definitions would be applicable in case, redress is sought by an aggrieved workman under Standing Orders 12(3). Since in the present case admittedly, the respondent's services were not terminated in connection with or in consequence of an industrial dispute, right to him to seek redress of his grievance was available only under Standing Order 12(3).
When redress was sought by the respondent under Standing Orders Ordinance, it is the definition of the term "workman" as provided in the Standing Orders Ordinance, which was to be considered by the Labour Court for entertaining his grievance petition and not the definition of the said term as contained in the Ordinance. We are fully fortified in our view by an earlier judgment of this Court in Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore (1992 SCM R 227). In this case, Ajmal Mian, J. (as he then was) had observed: "For example, if a workman seeks the enforcement of the rights guaranteed under the various provisions of the Standing Orders Ordinance, he should also fall within the definition of the 'workman' given in clause (i) of section 2 of the Ordinance. However, in case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned falls within the definition of the ' workman' given in clause (i) of section 2 of the Ordinance and he need not be covered by the definition of the 'workman' and ' worker' given in clause (xxviii) of section 2 of the Industrial Relations Ordinance."
11. Reference may also be made in this regard to a decision given by the Sindh Labour Appellate Tribunal in the case of Johnson & Johnson (Pvt.) Ltd. (1980 PLC 622) wherein similar view has been expressed by Mr. Justice (Retd.) Z.A. Channa, Chairman of the Tribunal. However, we have also come across another judgment of this Court in the case of Shahzar Khan v. Sindh Labour Court (1977 SCM R 103) wherein, in more or less a similar situation, it was held that the definition of ' workman' as contained in section 2(xxviii) of the Ordinance would be applicable. But, as can be clearly spelt out from the said judgment, the provisions of Standing Order 12(3) were not brought to the notice of the Court. However, there appears to be no room for doubt, that, the case of the respondent in the present case is purely governed by the provisions of Standing Order 12(3) and, therefore, the definition of ' workman' given in the Standing Orders Ordinance and not that in section 2(xxviii) would apply.
12. The definition of "workman" contained in the Standing Orders Ordinance is a simple definition indicating two categories of persons who may be employed in an industrial or commercial establishment to do either manual or clerical work. The words "skilled" or "unskilled" appearing in the said definition further indicate that a person may either be employed to do skilled or unskilled manual work or skilled or unskilled clerical work, as the case may be.
13. As to the question whether a person is or is not a workman, it is now well-established that the same would depend not upon his designation but on the nature of duties mainly performed by him. The nature of duties mainly performed by the respondent, reference to which was earlier made in this judgment, indicates that, he had been assigned the work of maintaining accounts and distribution of different kinds of edibles to the other workers while sitting at a counter. The respondent also used to sell articles and maintain a record thereof. Although, other persons were also working under him, but admittedly, he did not exercise any power of hire or fire over them. He could not even recommend grant of leave to them. Such duties, therefore, clearly fell within the ambit of ' manual' or ' clerical' work. No doubt, the respondent was designated as Manager, nevertheless the nature of his duties indicate that he belonged to the category of workers defined as ' workman' in clause (i) of section 2 of the Standing Orders Ordinance.
14. Consequently, the learned Judges of the High Court appear to be right in holding that the respondent was a "workman". However, we have noticed that, the learned Judges after coming to the said conclusion, have even touched upon the merits of the case. While holding that the action taken by the petitioner against the respondent was not warranted by law, they have ordered his reinstatement in service. It may be pointed out that the learned Judges were exercising jurisdiction vesting in them under Article 199 of the Constitution, but they have assumed jurisdiction which was vested in the Labour Court under section 25-A of the Ordinance as they have decided the case on merits. Such a power could not be exercised by the learned Judges of the High Court while hearing a Constitutional petition under Article 199 of the Constitution. After the learned Judges had come to a conclusion that the respondent was a ' workman' the case should have been remanded to the Labour Court below for giving a decision on merits. The learned Judges of the High Court, therefore, have clearly over-stepped the jurisdiction vesting in them under Article 199 of the Constitution.
15. In the result, the appeal is allowed and the judgment of the High Court is set aside. The case is remanded to the Labour Court concerned, for disposal on merits. As the High Court has already expressed itself on merits of the case, it may be observed that, such observations of the High Court may not be taken into consideration by the Labour Court, and it may give its independent opinion in this regard. There will be no order as to costs in view of the questions raised in this petition.