' SAIYED SAEED ASHHAD, J.---This Constitutional petition has been filed against the decision of the Sindh Labour Appellate Tribunal at Karachi dated 22-8-1996, whereby the appeal filed by respondent No,2 was allowed and the grievance petition of the petitioner was dismissed.
2. The brief facts necessary for the disposal of this Constitutional petition are that the petitioner joined respondent No,2 as technical skilled worker and was subsequently promoted as Assistant Manager on a salary of Rs,12,000 per month. In 1988 one worker namely Shamim Ahmed was suffering from Lukeima of bonemarrow transfer operation and the petitioner, in his capacity as General Secretary of the C.B.A. Union, got sanctioned expenses for the treatment of said Shamim Ahmed abroad, who was subsequently sent to London and a draft of 1500 Ponds was sent to the High Commissioner for Pakistan in U.K. For expenses. The amount was found to be insufficient, on which petitioner Naeemul Haq got sanctioned a further amount to the tune of Rs,3,02,037 and respondent No,2 issued a cheque of this amount on Allied Bank. The amount of the aforesaid cheque was received by the petitioner from General Manager, Accounts Branch. However, the amount of this cheque was never received by the wife of said Shamim Ahmed, who had accompanied him to London, where he subsequently died. On her return to Pakistan, wife of said Shamim Ahmed informed respondent No,2 that neither she nor the Pakistan High Conmiission received the aforesaid amount, on which a preliminary enquiry was conducted which revealed that the entire amount was misappropriated, Petitioner Naeemul Haq when confronted with the 'aforesaid report, stated that the cheque was handed over to Shakeel Ahmed who was heading the Committee for making arrangement for the treatment of Shamim Ahmed in U.K., but eventually petitioner Naeemul Haq was charge-sheeted on 25-8-1992 and an enquiry was ordered to be held against him under Steel Mills Officers Rules. On an adverse verdict having been given in the enquiry against him, he was dismissed from service vide order dated 24-1-1997.
2. The petitioner filed a grievance petition in the Fourth Sindh Labour Court at Karachi, who ordered reinstatement of the petitioner merely on the ground that the charge-sheet was issued to the petitioner a long time after the allegation of misappropriation was made and not within 30 days as required under Standing Order 15(4) of the Standing Orders Ordinance. The Labour Court also rejected the plea of respondent No,2 that it had no jurisdiction to entertain the grievance petition of the petitioner as he was not a workman. Feeling aggrieved by the said order, respondent No,2 filed an appeal before the Sindh Labour Appellate Tribunal, who allowed the appeal of respondent No,2, set aside the order of the Fourth Sindh Labour Court and upheld the dismissal of the petitioner. The petitioner feeling aggrieved and dissatisfied with the aforesaid decision of the Sindh Labour Appellate Tribunal, preferred the above Constitutional petition for a declaration that the decision dated 22-8-1996 of the Sindh Labour Appellate Tribunal, is of no legal effect, the same be set aside and the order of the Fourth Sindh Labour Court be restored.
3. We have heard the arguments of Mr. Muhammad Tasneem, learned counsel for the petitioner and Mr. Zahid Hussain, learned counsel for respondent No,2 and have also perused the material on record as well as the relevant provisions of law.
4. Before us Mr. Muhammad. Tasneem on behalf of the petitioner re- iterated the objections raised by him with regard to the issuance of the charge-sheet long after the alleged misappropriation and submitted that the charge-sheet was illegal and of no legal consequence in view of Standing Order 15(4) of the Standing Orders Ordinance. He further submitted that on the basis of an illegal and void charge-sheet no proper and valid enquiry could be held and the alleged enquiry proceedings conducted against the petitioner were absolutely illegal and void ab initio. He further submitted that the dismissal of the petitioner on the basis of an illegal and void enquiry was in itself illegal, unlawful and of no legal consequence and the petitioner would be deemed to continue in service.
5. The arguments advanced by Mr. Muhammad Tasneem are devoid of force, in view of the arguments advanced by Mr. Zahid Hussain, learned counsel for respondent No,2 to the effect that the petitioner was not a workman but an officer in the establishment of respondent No,3 and the charge-sheet issued to him was not under Standing Orders Ordinance but under Pakistan Steel Mills Officers Rules. From this very action of respondent No,2 it is absolutely clear that the petitioner was not a workman but belonged to the supervisory category. It is also pertinent to state here that during the course of the enquiry proceedings he never objected to the issuance of the charge- sheet under Pakistan Steel Mills Officers Rules on the ground that he was a workman and he ought to have been charge-sheeted in accordance with the provisions of the Standing Orders Ordinance.
In the circumstances this contention of Mr. Muhammad Tasneem is not tenable and is discarded.
6. Mr. Muhammad Tasneem further submitted that even if it be admitted without conceding that the charge-sheet was proper and valid, the Enquiry Officer did not conduct the enquiry in a valid and legal manner and did not afford a proper opportunity to the petitioner to defend himself, he however, did not specify the illegalities committed and the improper conduct of the Enquiry Officer in conducting the enquiry against the petitioner. The allegations of enquiry not having been conducted in accordance with the provisions of law and no proper opportunity having been afforded to the petitioner, are general, vague and without any conviction. Even otherwise the petitioner not being a workman he could not agitate these grounds before the Labour Courts/Tribunal.
7. Mr. Muhammad Tasneem next submitted that respondent No,2 did not adduce any evidence either before the Fourth Sindh Labour Court or in the Labour Appellate Tribunal, in support of its contention that the petitioner was not a workman and at the relevant time was working as an officer and was performing supervisory functions. He further submitted that the burden of proving that the petitioner was not a workman lays on respondent No,2 but it had failed to discharge the same as is evident from the findings of the Fourth Sindh Labour Court which held that respondent No,2 had failed to adduce evidence and to discharge its burden of proving that the petitioner was not a workman and could not take recourse to the Labour Court by means of a grievance petition under section 25-A of the Industrial Relations Ordinance. This contention of Mr. Muhammad Tasneem was vehemently attacked by Mr. Zahid Hussain, learned counsel for respondent No,2 who submitted that it was for the petitioner to establish that he was a worker/workman, as defined in I.R.O. And the Standing Orders Ordinance for the purpose of invoking jurisdiction of .The Labour Court in exercise of the powers given to the worker/workman by the aforesaid two Ordinances. He further submitted that in case the petitioner had, successfully established himself to be a worker/workman then the burden of disproving the factum of the petitioner being a worker/workman would have been cast on respondent No,2. He further submitted that in the first place the petitioner miserably failed to produce any evidence or material before the two Courts below in support of his claim of being a worker/workman and respondent No,2 was under no obligation to adduce any evidence in rebuttal of this fact as the same had never been established and the Fourth Sindh Labour Court had misconceived and faultered in treating the petitioner as a workman. In support of his above contention Mr. Zahid Hussain has relied on the cases; (i) Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others (1993 SCMR 511) and (ii)
National Bank of Pakistan v. Punjab Labour. Court No,5, Faisalabad and 2 others (1993 SCMR 672).
8. We have gone through the afore-cited cases wherein it has been declared that initially the burden of proving lies on the worker/workman to A prove that he is a worker/workman for invoking the jurisdiction of the Labour Court.
9. The next ground urged by Mr. Muhammad Tasneem is that admittedly the petitioner was employed as a skilled technical worker and was subsequently promoted as Assistant Manager on a salary of Rs,12,000 per month. He further submitted that the question whether a person is a worker/workman or an officer is not to be decided either by designation or name of the post or by the salary which he receives and the decisive factor for the above is the nature of the actual work and the duty performed by the person. In this connection, he further submitted that the respondent No,2 intentionally did not bring any evidence on record with regard to the nature of the work and the duty performed by the petitioner inasmuch as even after his promotion as an Assistant Manager, he continued to perform the work and duties which were manual and physical in nature and was not entrusted with any supervisory powers and functions. In support of his above contention he has placed reliance on the cases of (i) Abdul Razzaq v. M/s. Ihsan Sons Limited and 2 others, reported in 1992 SCMR 505; and (ii) Mst. Nasim Siddique v. D.E.O. And others (1992 PLC (C.S.)
1023).
10. The arguments advanced by Mr. Muhammad Tasneem are devoid of force. In the Fourth Sindh Labour Court he was cross-examined on the basis of his affidavit-in-evidence and it will be useful to reproduce a certain portion from his cross-examination, which goes to establish without any ambiguity and doubt as to the nature of the work and duties performed by the relevant portion of the cross-examination is as under:-- "It is correct that Supervisor, Foreman and clerks used to work under me. It is correct that my enquiry was conducted under Officers Rules of Pakistan Steel. I cannot say whether this Court has jurisdiction to entertain my case. I do not know whether the High Court of Sindh has decided that Assistant Manager, Deputy Manager and Foreman are governed by the Master and Servant Rules. It is incorrect to suggest that I was rightly dismissed from service according to the rules of Pakistan Steel and this Court has no jurisdiction."
11. From the aforesaid cross-examination there could hardly be any doubt with regard to the nature of work and the duties performed by the petitioner. In his capacity as Assistant Manager he was supervising the works of the Supervisor, Foreman and Clerks. He also admitted that the enquiry against him was conducted under the Pakistan Steel Mills Officers Rules. Thus, the contention, advanced on behalf of the petitioner that respondent No,3 has miserably failed to bring on record any evidence or material to establish that the petitioner was not a worker/workman and was an officer, performing supervisory functions, is completely devoid of force. There is ample evidence on record to support the claim of respondent No,2 that the petitioner was not a worker/workman so as to invoke the jurisdiction of the Labour Court for redress of the grievance of his dismissal from service by respondent No,2. The cases, reported in 1992 SCMR 505 and 1992 PLC 1023 respectively, are of no assistance to the petitioner, inasmuch as the petitioner had failed to bring on record any evidence or material to fulfil the requirements of the test laid down in the aforecited two authorities for treating him to be a workman/worker.
12. Upon the above discussion we are satisfied beyond any doubt that the petitioner was not a worker/workman at the time when the show-cause notice was issued to him and he was dismissed from service by respondent No,2 in consequence of domestic enquiry conducted against him. In the circumstance he was not entitled to invoke the, jurisdiction of the Labour Courts in exercise of the powers contained in the Standing Order Ordinance and the Industrial Relations Ordinance. The Sindh Labour Appellate Tribunal rightly concluded in holding the petitioner as an officer and allowing the appeal, thereby confirming the order of respondent No,2 of dismissal of the petitioner from his service.
13. By short order this petition was dismissed on 13-11-1997 for reasons to be recorded later. The above are the reasons for the said dismissal.