MUHAMMAD ARIF J. - Attending facts and circumstances of the case as also the question of law which needs consideration stand succinctly detailed in the leave grant order which reads thus:- "Petitioner Yusuf Ali Shah has sought leave to appeal against dismissal of his Constitution Petition No. 194 of 1996 by a learned Division Bench of the High Court of Balochistan on 3.9.1996.
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 PIA 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.
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.
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.
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.
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 IRO. 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.
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 IRO and his grievance application was not maintainable: The petitioner challenged dismissal of his .Grievance application before the Labour Appellate Tribunal, Balochistan under an appeal, which was dismissed on 20.5.1996. Thereafter, the petitioner invoked jurisdiction of High Court of Balochistan 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 Balochistan dismissed petitioner's Constitution Petition No. 195/96 in limine. Hence, this petition.
Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner argued that although the petitioner was posted as Assistant Manager at the time 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 doing 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 IRO by virtue of clause (3) of Standing Order 12 of the Ordinance, 1968.
The impugned judgment shows that in the Labour Court both the parties opted to argue the matter without leading evidence. This observation was rebutted anti controverted by the learned counsel for the petitioner who stated that no such statement was made and that1 there was nothing of that sort in the proceedings before the Labour Court.
There is no gainsaying of the fact that definition of "worker" and "workman" given in IRO is materially different from the same given in Ordinance, 1968. In the Industrial Relations Ordinance (IRO) the definition of "worker" and "workman" is given in clause (xxviii) of Section 2.
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 IRO. Said section entitled a "worker", as defined in the IRO, to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award of settlement, for the time 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 time, but is not satisfied with the same. The Ordinance IX of 1972, while adding Section 25-A in the IRO, 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 XII 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 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."
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 difference between the definition of "worker" and "workman" given under clause (xxviii) below Section 2 of IRO 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 FRO became applicable for the purposes of moving a grievance application, but such definition excluded person whose services have been terminated or who 'had been removed, retrenched, discharged or dismissed otherwise than in connection with an industrial dispute or as a consequence of an industrial dispute as defined in the IRO. In view of the amendment in Standing Order XII (3) of the Ordinance, 1968, the provisions contained in Section 25-A of IRO have become .Virtually a part of the Ordinance, 1968. The amendment brought about in Standing Order XII (3) of the Ordinance, 1968 has expanded the scope of Section 25-A of IRO because in view of the enabling provisions contained in clause (3) of Standing Order XII of the Ordinance, 1968, even the workers not covered by clause (xxviii) of Section 2 of IRO can seek redress of their grievance-under Section 25-A of IRO 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 IRO, as if they had been aggrieved "workman" under the IRO. It . Is clear that workman covered by clause (3) of Standing Order XII 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 IRO. However, it is to be considered if the petitioner is covered by the definition of "worker" and "workman" as given in the Ordinance, 1968.
Leave to appeal is therefore, granted to consider said point, as well as the other points contended by the learned counsel for the petitioner."
2. Respondents-Quetta Sarena Hotel and others have been proceeded against ex -parte.
3. Mr. Muhammad Riaz Ahmad, learned AOR was critical of the impugned judgment of the High Court dated 3.9.1996 holding that (1) the competent fora i.e. Presiding Officer of the Labour Court and Labour Appellate Tribunal have concurrently ruled that petitioner-Yusuf Ali Shah is not a 'workman', (2) there is no jurisdictional error in these orders and (3) these orders have not been passed without lawful authority. His argument was that as the matter in relation to the determination of the question whether the appellant fell within the definition of the term 'worker/workman' was not resolved by the Labour Court and the Appellate Tribunal in accordance with law, the learned Members of the Division Bench of the High Court were in error in upholding the judgments of the Presiding Officer of the Labour Court dated 14.9.1995 and the Labour Appellate Tribunal, Balochistan, Quetta dated 20.5.1996. The Labour Court, the Labour Appellate Tribunal and the High Court did not bring to bear the provisions of (i) IRO, 1969, (ii) Ordinance IX of 1972 (a) adding Section 25-A in IRO, 1969 (b) amending Standing Order XII of Ordinance of 1968 and Act XXIII of 1973 amending clause (3) of the Standing. Order XII of the Ordinance, 1968 by providing: "(31 The services of a workman shall not be terminated, nor shall a workman he 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 19691 and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." On the case of his client that he is not covered by the definition of 'workman' as given in 1969 Ordinance but by definition of 'worker' and 'workman' in 1968 Ordinance. According to him, the case reported as Trustees of the Port of Karachi Vs. Muhammad Saleem (1994 SCM R 2213) helps his client and the findings to the contrary by the Labour Court and the Appellate Tribunal should have been reversed by the High Court in the exercise of its jurisdiction under Article 199 of the Constitution.
4. Before attending to the composite prayer made by the learned ' counsel as reflected in the immediately preceding paragraph, it will be in the fitness of things to refer to the observations of the High Court in the impugned judgment. It was observed that the Labour Appellate Tribunal and dismissed appellant-Yusuf Ali Shah's Labour Appeal No. 136 of 1995 on'20.5.1996 exclusively on the ground that he being an Assistant Manager in the Hotel Management at the relevant time, did not qualify for being a 'workman' under Section 3 (xxviii) of 1969 Ordinance and that Dost Muhammad Cotton Mills Ltd. Vs. Muhammad Abdul Ghani and another (1979 SCM R 304) was not applicable in that the Labour Court had found the employee involved in that case to be a 'workman' and that while deciding issue No. 3 the Labour Court ruled that appellant-Yusuf Ali Shah is not a 'worker/workman'. It was further observed that assignment and job description of the appellant according to his post, was part and parcel of the Management. The learned Members of the- Division Bench further observed: "Mr. Muhammad Riaz Ahmed, learned counsel for petitioner was called upon to satisfy: whether salary of petitioner exceeds rupees eight hundred per mensum and he was performing duty in a supervisory capacity? Learned counsel conceded on basis of last pay roll prepared by the Management that petitioner was drawing Rs. 4,300/- including all allowances, per month. But his contention, was that petitioner was not performing his duty in a supervisory or managerial capacity. Therefore, in view of the judgments reported in 1993 SCMR 673 (National Bank of Pakistan V7. Punjab Labour Court No. 5, Faisalabad and 2 others) and 1994 PLC 610 (Lever Brothers Pakistan Limited, Karachi Kv. Mrs. Kishwar Sultana Khan), his case is covered under the definition of 'worker/workman', as per the nature of his job. However, learned counsel could not point out any material/evidence to substantiate his plea. Contrary to it, he argued that opportunity of leading evidence was not afforded to petitioner by Trial Court and such assertion was specifically made before the Labour Appellate Tribunal, by incorporating a ground in the (memo.) of appeal............................. The High Court also noted that: "We have examined this aspect of the case carefully. It is to he noted that perusal of order passed hv Labour Court reveals that after framing points for determination, both the parties opted to argue the matter without leading evidence.
Similarly, when the appeal was being heard during arguments: no such contention was raised at all and perhaps due to such reason the learned Appellate Tribunal had not attended to this aspect.
As for as incorporating a ground of non-providing opportunity of leading evidence in name of appeal is concerned that would not be sufficient to entertain his-argument, unless it is not shown from impugned order that during arguments, such plea was specifically raised and it has not been considered. Thus, the point which had not been agitated before the Forum (seized of) the matter in the hierarchy of Industrial Relations Ordinance. 1969. Cannot be allowed to be argued for the first time during Constitutional proceedings. As such, for this reason, with most respect the judgment of Hon'ble Supreme Court, is not helpful to petitioner for advancing his case."
5. At this stage we may refer to the following observations by this Court in Syed Matloob Hassan Vs. Brooke Bond Pakistan Limited, Lahore (1992 SCM R 227):- "10. Having dilated upon the relevant provisions of the Ordinance and the I.R.O., we may revert to the above question invoked in the present case, in the instant case, as the appellant complained of the violation of Standing Orders 12 and 15, it was incumbent upon him to have shown that he falls within. The ambit of the definition of "workman" given in clause (i) of Section 2 of the Ordinance. The Labour Court, after referring the duties of the appellant, concluded that he was not covered- by the above definition. The Labour Appellate Tribunal concurred with the above finding. The appellant in his cross-examination made the following damaging admission:-- "It is correct that every salesman has a vanman. Vanman cleans the depot premises, arranges the stock in the depot. The vanman takes the tea packets and delivers to the customers. The working hours of the salesman are the same as are of the local market. It is my main duty to meet the customers and promote the sales of the products of the company. Every salesman can appoint a temporary vanman."
11. On the basis of the above admission and keeping in view the duties of the appellant, the Labour Court and the Labour Appellate Tribunal could have recorded as a finding of fact that the appellant's duties do not predominantly involve manual or clerical work as has been held by this Court in the case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees'
Union, Dacca and others {supra), wherein Cornelius, C.J. Made the following weighty observation in relation to a salesman with reference to the definition of the "workman" given in clause (s) of Section 2 of the Industrial Disputes Act, 1947 (XIV of 1947), which is pari materia with the definition given in above clause (i) of Section 2 of the Ordinance in material respects:- "I consider that it admits of no doubts, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company, are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesman is in a wholly different category from manual work of clerical work, and 1 feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesman do ' not fall within the definition of "workmen"."
The other learned Judges, who recorded their separate opinions in the above-cited case, did not differ with the above proposition of law."
6. A careful perusal of the material on the record does bring it to the fore that it is not the case of the appellant that at any point of time in the past, the management of the. Respondent-Hotel Sarena either treated him as a 'workman/worker1 or that such treatment was meted out to any other employee similarly placed as him. The twin-plea that neither any statement was made by the appellant before the Labour Court that he will not lead any evidence on any one of the issues framed by it nor that the ground taken in the memo, of appeal before the Labour Appellate Tribunal in that regard was argued out at the hearing of his appeal before the Labour Appellate Tribunal. The learned Members of the Division Bench of the High Court were quit right in observing that the point which had not been raised before the Forum seized of the tis in the hierarchy of Industrial Relations Ordinance, 1969, cannot be allowed to be argued for the first time during Constitutional proceedings.
7. Looked at in the above perspective, we are of the considered' view that there was nothing amiss in the judgments rendered by the Labour Court and the Labour Appellate Tribunal on 14.9.1995 and 20.5.1996 respectively to justify the High Court to interfere with the same in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The failure on the part of the appellant to cross the major hurdle in his way before the Labour Court concerned was to obvious to be ignored by the Labour Appellate Tribunal and the same in the position with regard to his failure to even so much as utter a word before it to argue the alleged ground/contents of the memo, of appeal to the effect that he was not afforded any opportunity to produce evidence in support of those issues burden of proof whereof was on him.
8. Looked at from whatever angle, no ground for interfering in the impugned judgment dated 3.9.1996 passed by the High Court in its jurisdiction under Article 199 of the Constitution has been made out.
9. Resultantly, the appeal is dismissed and, none having appeared on behalf of the respondents, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.