PERSONNEL MANAGER AND CHIEF CAMP COMMAN DANT Versus LABOUR APPELLATE TRIBUNAL, N.-W. F. P

ABDUL HAKEEM KHAN, J.---- Tarbela Joint Venture has moved this Consti tutional petition as they feel aggrieved by the dismissal of their appeal an default by the Labour Appellate Tribunal, respondent No. 1, on 14-10-1974 against the order dated 31-7-1974 of the Labour Court, respondent No. 2, whereby the petition of Dilawar Khan, respondent No. 3, under section 25-A of the Industrial Relations Ordinance (hereinafter to be called I. R. O.) was accepted and the order of the termination of the latter's services A as set aside explaining that the re-instatement was with full benefits and that in case he had taken up a new service and will not like to resume his old job, he will be entitled to receive .all his benefits falling due from the date of termination of his services till the date he joined his new service.

2. The three grounds on which the orders alluded to above are sought to die set aside as being unlawful, illegal and without jurisdiction are,---

(a) while the services of Dilawar Khan, respondent No. 3, were terminat ed on 16-8-1972 and he moved the petition under section 25-A of the I. R. O. on 29-9-1973, the Federal Government was pleased to declare on 30-1-1974 all classes of employment under the Tarbela Joint Venture and its sub-contractor to be employment to which Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the Act) would apply vide S. R. O. 132(1)/74 with the result that I. R. O. became inapplicable on account of the provisions made in sections 6 and 74 of the Act notwithstanding the fact that the application of Dilawar Khan was pending when the Notification under section 3 of the Act was made;

(b) the order of the Labour Appellate Tribunal whereby the appeal of the petitioner was dismissed in default was without authority, for the Labour Officer of the petitioner was present-in any case the appeal should have been disposed of on merits; and

(c) neither the Labour Court nor the Labour Appellate Tribunal has determined the crucial question viz. respondent No. 3 was workman as defined in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance) and as such entitled to protection afforded to a workman by the Standing Order No. 12(3) of the First Schedule. Section 25-A of the I. R. O. could only be attracted if Dilawar Khan had some right under the aforesaid Ordinance.

3. Before we take up the three points urged on behalf of the petitioner, we should like to place on record that Dilawar Khan, respondent No. 3, alone contests the application.

4. The S. R. O. whereby all classes of employment under the petitioner and its sub-contractors were declared to be essential services by the Central Government, as it appears in Annexure `E' reads:

S. R. O. 132(1)/74.-In exercise of the powers conferred by section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952), the Federal Government is pleased to declare all classes of employment under the Tarbela Joint Venture and its Sub-Contractors to be employ ment to which the said Act shall apply.

M. Zia Hussain,

Deputy Secretary.

When it was pointed out to the learned counsel for the petitioner that this Notification is inchoate inasmuch ac it omits to record the opinion of the Federal Government that all classes of employment under the petitioner were essential for any of the purposes enumerated under the two clauses to subsec tion (2) of section 3 of the Act, precisely speaking that the maintenance of the supplies/services related to the classes with respect to which Parliament had powers to make laws and were essential to the life of the community, the learned counsel stated at the bar that be will not press this point, adding that he was not prepared to meet it, rather Stanley Young, etc. v. D. C., Karachi etc. (P L J 1974 Kar. 428) would support the objection raised by the Court.

5. The second point should also not detain us for long, for, a reference to the order of respondent No. 1 dated 14-10-1974 as in Annexure 'A' will show that neither S. Naeem Bukhari, nor Mr. M. Tomei, Agent, Tarbela Dam were present on the date fixed for the disposal of the appeal. It is true that Mr. Muhammad Zaman was present but the impugned order will show that he was an employee of Tarbela Joint Venture. When the learned counsel for the petitioner was asked to show if Mr. Muhammad Zaman was an authorised agent he was not in a position to commit himself. In the circumstances, we do not see much substance in the contention urged that respondent No. 1 should have disposed of the appeal on merits.

6. The all important matter on which the fate of this petition depends is this, as to whether the Labour Courts including the Labour Appellate Tribunal, were right in placing reliance on the definition of the workman as it appears in section 2 (xxviii) of the 1. R. O. for the disposal of the petition under section 25-A ibid. However, before that we proceed to give our finding on this point, we should like to meet the objection of the learned counsel for the respondent, that Mr. Allah Bakhsh Khan, who presided over the Labour Court, Peshawar which disposed of the petition under section 25-A of the I. R. O. initially on 20-6-1973, had given a decision with reference to the definition of the expression workman as it occurs in section 2(i) of the Ordinance. A copy of the judgment of the Labour Court was produced before us by the petitioner and the same in Exh. H. C.

1. We have carefully gone through that order and it appears to us that it is wrong to suggest that Mr. Allah Bakhsh Khan disposed of the petition with reference to the defini tion of workman in the Ordinance. In this context we should like to add that neither the order of the successor of Mr. Allah Bakhsh Khan, as in Annexure B, nor the order of the Labour Appellate Tribunal, as in Annexure D, would show that they disposed of the matter with reference to the definition in the Ordinance. A perusal of their orders would rather show that the Court and the Tribunal both were under the impression that for the definition 'worker' they had to rely on the I. R. O. and disposed of the matter accordingly. It comes to this that there is no decision on the record to show that respondent No. 3 was a workman as defined in the Ordinance and as such to his case Standing Order No. 12(3) was attracted.

7. That it was necessary for respondent No. 3 to prove that he was workman or worker as defined in the Ordinance before that he could move for the redress of his grievances under section 25-A of the I. R. O., will be clear from the plain text of subsection (1) of that section which reads:-

"A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop steward or trade union, within three months of the day on which cause of such grievance arises."

Before that respondent No. 3 could succeed, he had to prove that the right was guaranteed or secured to him by or under any law. This right was secured to respondent No 3 by Standing Order 12(3) and only when he was proved to be a worker under the Ordinance. In this view we are supported by two authorities from Karachi reported in Mohammad Aqil v. Sind Labour Appellate Tribunal and others (P L J 1974 Kar. 252) and I. E. Saleh v. International National Laboratories Ltd. etc. (P L D 1975 Kar. 59).

8. The contention of the learned counsel for the respondent that the impugned order of the Labour Court had become final because the appeal before the Labour Appellate Tribunal had been dismissed in default and since no infirmity was found in the latter's order, the writ may not be issued, has not impressed us. It is true that the order of the Labour Appellate Tribunal has become final in that hierarchy but it cannot be said that the order of the Labour Appellate Tribunal even if it had been on merits and had upheld the order of the Labour Court could have met the challenge as in the present petition, viz. that the order was without jurisdiction and of no legal effect. The order of the Labour Courts in this case, it will be seen, proceeds on the wrong assumption that it had jurisdiction in the case, for, respondent No. 3 would be a worker as that expression occurs in 1. R. O. though the law would only give jurisdiction to that Court in the present petition if respondent No 3 was to establish that he was a workman within the contemplation of the Ordinance.

9. On the view of the matter that we take, we accept this petition and setting aside the orders of the respondents 1 and 2 direct that respondent No 2 should in the first instance determine at, to whether respondent No. 3 was a workman as defined in section 2(t) of e Ordinance and then proceed to decide the matter in accordance with law. We make no orders as to costs.

K.B.A Petition accepted. Case remanded: