DOST MUHAMMAD COTTON MILLS LTD. Versus MOHAMMAD ABDUL GHANI

The petitioner Dost Muhammad Cotton Mills Ltd.; seeks to impugn an order of the Chairman, First Sind Labour Court, Karachi dated 20‑7‑1972, whereby. the order of termination of service passed by the petitioner against respondent Muhammad Abdul Ghani was held to be invalid in law. By the said order,. the Chairman of the Labour Court directed the petitioner to re‑instate res pondent Muhammad Abdul Ghani in service and to pay him wages up to the month of August 1970. While the petitioner was represented before me by Mr. Mansoor Ahmed Khan, respondent Muhammad Abdul Ghani was re presented before me by Mr. Naimuddin. Respondent, the Chairman of the First Sind Labour Court has not contested the petition.

2. Briefly stated the facts of the case are that the petitioner runs a textile mill at Karachi in which mill workmen are employed. On 13‑3‑1969, res pondent applied for the post of Chief Accountant and was appointed as Chief Accountant on a salary of Rs. 1,050 per month. It seems that on, 8‑1‑1970, the petitioner issued an office order to the respondent informing him that the respondent should take instructions from one Farid Khan, who had been given full charge of the Accounts Section. On 28‑2‑1970, the petitioner terminated the services of the respondent by the following letter

"Although we gave you a reasonable time to work as Incharge of the Account Section, but unfortunately we could not get the satisfactory results.

Under the circumstances we have to inform you that we shall not require your services with effect from end of February, 1 970. Please hand over charge to our nominee and collect your legal dues from the office."

Such letter was construed by the respondent to be an order of dismissal within the meaning of section 15 of the West Pakistan (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance. The respondent thereafter made an application under section 18 of the Ordinance before the Labour Court which has resulted in the passing of the impugned order.

3. The Labour Court cast the following two points for determination

"(a) Whether the applicant was a workman in terms of the definition, given in the Standing Orders Ordinance, 1968 ?

(b) Whether this was a case of termination simpliciter or dismissal in the garb of termination ?"

The respondent had examined himself before the Labour Court and had produced a statement of routine work done by him showing that his work was of a clerical nature and not of supervisory or managerial character. The petitioners did not examine any witness before the Labour Court. The learn ed Chairman of the Labour Court came to the conclusion that the respondent was to perform clerical labour and was for such reason a workman. Addi tionally it was held by the Chairman that the order was in effect an order of dismissal and not an order of termination. On such determination of the two points, the case was decided in favour of the respondent.

4. Mr. Mansoor Ahmed Khan the learned Advocate for the petitioner has assailed the order of the Labour Court on the basis of the contentions that the respondent having been appointed as the Chief Accountant was in fact enjoying supervisory office and could not be considered to be a workman. Additionally it has been contended before me that the order of termination was innocuous and for such reason the termination was specific, as distinguish . ed‑from dismissal.

On the other hand Mr. Naimuddin had raised the preliminary objection by stating that the determination of two issues was a finding of fact given by a Tribunal of limited jurisdiction and was not amenable to correction by this Court in exercise of powers under Article 201 of the Interim Constitution of Pakistan. Additionally, Mr. Naimuddin has supported the order of the .learned Labour Court.

5. I will first deal with the preliminary point canvassed before me by Mr. Naimuddin. The learned Advocate has urged that the Labour Court had recorded findings of fact to the effect that the respondent was a workman and had been illegally dismissed. He further contends that to such extent the finding of fact was not liable to displacement by this Court while exercising constitutional jurisdiction in accordance with Article 201 of the Interim ‑Constitution of Pakistan. The relevant passages in the order of the' Labour Court run as follows :

"The applicant at the time of arguments produced the original of the letter already filed in the Court stating that the applicant was to take all the instructions from Mr. Fareed Khan who had been given full charge of the accounts section. In these circumstances it has to be held that the applicant was required to perform clerical labour and he has to be deemed to be a workman." . ‑

From the matter on record it cannot be said that it is a case of termina tion simpliciter because the employer had no reason for terminating the employment of the applicant except that they found his work to be unsatisfactory."

6. On the other hand Mr. Mansoor Ahmed Khan the learned Advocate ‑for the petitioner has urged before me that it is not every finding of fact which obtains immunity from review by the High Court and in several existing .conditions such findings are reviewable. In that context the learned Advocate has stated that the fact of the respondent being a workman was a fact germane to assumption of jurisdiction to deal with a case and was for such reason subject to judicial review.

6‑A. The process of dividing findings of fact as from exposition and . application of law has indeed been very puzzling, though interesting. Conflict ing opinions in regard to such division have been expressed from time to time and in various judicial systems:

7. Sir Carleton Kemp Allen in his learned treatise "Law and Orders" (1965 Edition) opens the chapter on "Law and Fact" with the following state ment . "in most appeals the general rule is that the superior Court is concerned only with questions of law and jurisdiction and will not interfere with the findings of fact, if there is any reasonable basis for them, of the lower Court or tribunal. To reopen all disputed issues of fact might lead to endless litigation, perhaps with no very satisfactory conclusion in the end, for it is not to be taken for granted that an appellate tribu nal is a better judge of facts than a lower one, any more than a judge is necessarily a more accurate scrutineer of facts than a jury."

In the same chapter the learned author has while concluding the discourse Oummarised the case in the following words :

"There are other cases in which the discretion of the Court is astute to overcome nice distinctions between collateral and inherent facts. Even when it seems clear, or at least is plausibly arguable, that a certain state of facts is primarily for the adjudication of the inferior tribunal it is often possible for the High Court to say, in its discretion, that there was no evidence on which the finding could be based. The true rule, it has been stated, is that the Court will interfere only when there is no evidence, not when there is merely insufficient evidence ; but in its prerogative jurisdiction the Queen's Bench is not disposed to be rigid about this rule and is not slow, when justice seems to demand it, to constitute itself what I have ventured to call a `super‑jury':

The learned author while coining to the conclusion had reviewed almost the entire case‑law as existed in England at that time. One fact is indeed clear that the once rigid dichotomy of law and fact, making it perilous for a superior Court of general jurisdiction to embark the realm of fact has loosen ed so that it can no more be considered to be a domain of refrain. Time honoured decisions that have loosened the bonds go down the line from the case of Rex v. Commissioner for Special Purposes of the Income‑tax ((1888) 21 Q B D 313), Lord Esher, the Master of Rolls stated the case of interference on facts in the following words :

"When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have aced without jurisdiction." .

8. The next decision in which the position was stated with more clarity is the case of Rex v. Lincoln Shire Justices. Brett, Ex parte ((1926) 2 K B D 192). In this case the main contention was that evidence required corroboration but rule was sought on the ground that corroboration was lacking. Atkin, L. J. repro duced the following passage from Halsbury's Laws of England :

"Under various statutes certain notices are requisite before the commence ment of proceedings ; and the omission to serve such. notices deprives the inferior Court of jurisdiction and affords ground for certiorari. The case is more difficult where the jurisdiction of the Court below depends, not upon some preliminary proceedings, but upon the existence of some particular fact. If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot, by a wrong decision with regard to it, give itself jurisdiction which it would not otherwise pos sess. The lower Court must, indeed, decide as to the collateral fact, in the first instance ; but the superior Court may upon certiorari inquire into the correctness of the decision, and may quash the proceed ings in the lower Court if such decision is erroneous, or at any rate if there is no evidence to support it. On the other hand, if the fact in question be not collateral, but a part of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an erroneous conclusion with regard to it."

In the concluding part of the judgment of Atkin L. J. it was stated that since the Justices bad found that there was other evidence sufficiently corro borating the testimony requiring corroboration and despite the Noble Lord observing, "and I think it was, a wrong conclusion, but it was a conclusion on very matters which is entrusted to their (Justices) decision". In such circum stances the rule was discharged and the decision of the Justices was maintained. It would thus. appear that in the case while observing that collateral 'matters were subject to judicial scrutiny, such matters as were within the powers of the inferior Tribunal to decide on basis of evidence were considered to be immune from scrutiny although the conclusions recorded were wrong.

9. Later the scope of scrutiny appears to have been widened and in order to understand the situation it would be benefit to refer to a comparatively recent case of Rex v. London etc., Rent Tribunal ((1951) 1 K B 641). The Rent Tribunal was invested with powers for fixation of rent. Jurisdiction was challenged on the ground, that at the time of reference for fixation, tenancy did not exist and such fact was decided by the Tribunal in favour of the landlord by recording the finding that tenancy existed and rent was fixed. The decision of the Rent Tribunal was impugned. Lord Goddard, C. J. referred to the earlier judgment of Atkin L. J. in the earlier case of Rex v. Lincoln Shire Justices (referred to above) and after quoting a passage from the said judgment expressed his views in regard to scrutiny of finding of fact in the following words :

"That is what we have to do. I am of opinion that the tribunal. in the present case had power to inquire into the collateral fact, namely, whether there was a contract, because it was only if there was a con tract that they could exercise the jurisdiction which the Act of Parlia ment has given them. When they have decided that, it is open to the person who complains of that decision to ask this Court to inquire into it by means of certiorari. In many cases‑at any rate in some cases this Court has been able to inquire into the matter by means of docu ments and other information put before it and has come to the conclusion in some cases that the tribunal decided erroneously, and in others that it acted rightly "

The decision was given on consideration of facts and Parker, J. who agreed with Lord Goddard, C. J. went on to state that onus of showing that the decision of the Tribunal was erroneous, was on the applicant, which he had failed to discharge and for reason certiorari was refused. It would appear that the existence of contract which was condition precedent for exercise of jurisdiction by the Tribunal and the question of existence whereof was basically a question of fact and the same had been decided by the Tribu nal of limited jurisdiction on basis of evidence, was scrutinised, in order to examine the case of exercise of power by the Tribunal.

It would on such state of law seem that it is not every finding of fact that acquires immunity from scrutiny. but such facts as lay the foundation for exercise of powers by a Tribunal are not so immune from scrutiny. Whether the findings on fact, the decision whereof lies within the domain of the Tribu nal, are completely immune will be considered by me later.

10. In Pakistan, the power to issue writs stricto sensu does not exist after ‑1958, and such writs have been replaced by well‑defined jurisdiction to declare an order to have been made without lawful authority and as being of no legal effect. Still, the principles governing issue of writs are in substantial pattern adhered to. The doctrine of audi alteram partem though not finding a place in Article 201 of the 1972 Constitution or corresponding documents is time‑honoured in Pakistan. Similarly, the doctrine of examination of jurisdic tional facts or collateral facts which provides power to a Tribunal of limited jurisdiction, is besides being capable of being read in constitutional provisions, even otherwise jealously guarded. The words "without lawful authority" clearly postulate an enquiry into the question of assumption of jurisdiction and exercise of powers. It would otherwise be impossible for a Court to determine the jurisdictional and collateral facts unless the facts are examined, at least broadly and determination of such facts is a necessary exercise for coming to the conclusion whether an act has been done with or without law ful authority. Such examination has as of necessity to be on the basis of existence of requisite powers before the same are exercised. The Courts have to guard against the usurpation of jurisdiction and such functions are incap able of fulfilment except upon the assumption that powers of judicial' scrutiny, even of disputed facts in so far as the same relate to assumption of jurisdiction and exercise of power, inhere. The latest pronouncement in such, regard is in the judgment of my Lord the Chief Justice Hamoodur Rahman in the case of Raunaq Ali and others v. Officer on Special Duty (P L D 1973 S C 236) in which judgment the point is stated as follows :

"It is now well‑established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action 'beyond the sphere allotted to the tribunal by law and, therefore, outside the area without which the law recognises a privilege to err', then such action amounts to a 'usurpation of poorer unwarranted by law' and such an act is nullity; that is to say, `the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, some thing which would be patently unjust or unlawful."

11. It would thus seem that in order to attract the jurisdiction of the tribunal of limited jurisdiction it has to be shown that all the requisites for exercise of power existed. Applying the test to the present case it has to be seen in all depth if the respondent is a workman because if the same was no so found Labour Court stood denuded of the power of disposal of the case and in case it was found, it would be of far‑reaching consequence in the present state of facts. It would seem that the fact of the respondent being a workman is the basic fact in the case which will defeat the rights of one or the other party or either confer or oust the jurisdiction of the Labour Court.

12. Even if the question of respondent being a workman is not conceded to be a question determining jurisdiction, still this Court has the power to appraise facts, though to a limited extent in order to examine the findings of fact irk relation to which the Tribunal of limited jurisdiction may be considered to have exclusive power to decide. To such extent the law is well settled that error of law apparent on the face of the record will attract the jurisdiction of/ superior Courts. The other class of cases are those when relevant circumstances are not taken into consideration or a circumstance in fact irrele vant has affected the decision. Refer Province of East Pakistan v. Abdus Subhan Sowdagar (PLD 1964SC 1). In the case of the Province of East Pakistan v. Amir Hussain a Government servant was acquitted of a (PLD1963 S C 185) criminal charge but the Screening Committee came to the conclusion of his guilt on the basis that his prosecu tion had been sanctioned. The Supreme Court held that the finding of guilt was not justified. It appears to be consistent law in Pakistan that if evidence on both sides is fully read and appreciated before reaching conclusions, the same would be immune from attack (P L D 1953 S C 704) and conversely it would be assailable in constitutional jurisdiction if the evidence o n both sides is not fully read and appreciated and I would go to the extent of stating that if a decision on facts is arrived at on basis of irrelevant facts or in disregard of statutory presumptions or if not based on the evidence o record, the same would be assailable.

It is therefore too late in the day to assume that every finding of fact recorded by a Tribunal of limited jurisdiction is immune from judicial scrutiny. The preliminary objection is without substance and is rejected.

13. On the first point Mr. Mansoor Ahmed Khan the learned Advocate for the petitioner has heavily relied on the fact that the respondent had been appointed as a Chief Accountant and such position was supervisory or mana gerial. On the other hand, the letter dated 8‑1‑1970 asking the respondent to take instructions from Fareed Khan who had been given full charge of Accounts Section is indeed very significant. This letter clearly shows that at least on 8‑1‑1970, the respondent had ceased to enjoy an office of supervision or management. The respondent has alongwith the counter‑affidavit filed a statement showing the routine work done by him and such statement shows that he had to prepare journal vouchers, write the journal books and even attend to the Incharge of Accounts Section. This document has not been challenged by the petitioner and the same shows that tine respondent was not the head of the Accounts Branch. In fact in the affidavit‑in‑rejoinder filed by the petitioner it has been stated as follows :

"Without prejudice it is submitted that the work shown on Chart 'A' could and is the work of the Chief Accountant but the said chart is not comprehensive in any case and cannot be taken to mean that these were the only duties the respondent was carrying out."

In regard to the respondent's answerability to Fareed Khan it has been stated by the petitioner in the petition itself that Mr. Fareed Khan was. representative of a firm of a Chartered Accountant who had been given the consultancy commission in order to evolve proper system and methods for the management and accounts of the mill. It is further admitted that the superior staff was given directions to receive instructions from Mr. Fareed Khan so as to avoid any error or difficulty in accounting. These admissions will clearly show that at least after 8‑1‑1970, the petitioner had to play a second fiddle to Fareed Khan in Accounts Branch and he could for such reason not be considered to be employed in supervisory or managerial capacity.

14. The term "workman" is defined in section 2 (f) of the Ordinance and ‑the said provision reads as follows : "'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."

In distinction it would be of benefit to consider the above provision alongwith the definition of "employer" in the Ordinance because in any industrial establishment every person is almost either an "employer" or a "workman "Employer" has been defined in section 2(c) of the Ordinance ac follows :

"Employer' means the owner of an industrial or commercial establish ment to which this Ordinance for the time being applies and includes‑‑.

(i) in a factory, any person named under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the, factory ;

(ii) in any industrial establishment under the control of any department of the Central or any Provincial Government, the authority appointed. by such Government in this behalf, or where no such authority is so appointed, the head of the department ;

(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment." "While clauses (i) and (ii) of section 2 (c) of the Ordinance are not relevant to the case in hand, the only clause falling for consideration in the instant case is clause (M). For attracting this clause it is necessary to show that a paid servant in order to fall within the category of "employer" should be respon sible only to the owner and should supervise and control the entire establish ~: went. If any of the two qualifications are found wanting such person will not fall within the category of "employer" but will have to be considered as a "workman". ,

Additionally, Mr. Mansoor Ahmed Khan has urged that the respondent was a Chief Accountant and was getting a salary of Rs. 1,100 per month: On the other hand the case of the respondent is that in spite of his being styled as a Chief Accountant, his duties were clerical and skilled in their: nature. The further contention is that he had to seek instructions from Mr: Fareed Khan and not from the owner.

In my view, neither the designation nor the salary is a factor for determination of the status of the "employee". The only criterion is the work that employee has to do and the answerability for the performance. These contentions of Mr. Mansoor Ahmed Khan are misconceived.

I must also record a further contention of Mr. Naimuddin to the effect that the respondent, if he was to be held to occupy a position of supervision or control, could not be termed to be supervising or controlling the entire establishment but only a branch or department of this establishment and for such reason could not be said to be covered by the definition of "employer" as stated in section 2 (c) (w) of the Ordinance. I am inclined to agree with such contention but it is not necessary to pursue the point any further.

For all the above reasons. I am of the view that the respondent was a workman within the meaning of the Ordinance.

15. The next point in the case is whether the order of termination of services of the respondent is in fact and effect an order of dismissal Any "employer" can terminate the services of an employee without showing any fault but for dismissing the employee an enquiry has to be held in accordance K," with the provisions of section 15 (4) of the Ordinance.

The order of termination clearly states that the work of the respondent was unsatisfactory. It is also stated that a long time had been given to the respondent to achieve and show good results but the respon dent had failed. If the work of the respondent was unsatisfactory, the same ‑could reasonably fall for punishment under section 15 (1) (ii) (d) for which a workman could be reprimanded or fined. This clause contemplates inefficiency, dilatoriness, carelessness or wasteful working. Under section 15 (3) (j)' frequent repetition of any actor omission referred to in clause (1) of section 15, is treated as "misconduct". The alleged unsatisfactory work of the respondent, if the same was continuous, would attract section 15 (3) (J). The respondent is stated to be continuously showing unsatisfactory work and such continuity constitutes misconduct within the meaning of clause (j) of sec tion 15 (3) of the Ordinance.

What is more that the so‑called letter of termination contains a stigma ‑and the respondent has set up a case that he was unable to get a job in spite of efforts although he was fairly experienced. Normally, an order of termination carries no stigma but generally when a stigma attaches to an order of termina tion of services, the same obtains all the characteristics of dismissal. If an order is in fact and effect an order of dismissal, merely terming the same as an order of termination will not change the character of the order.

The respondent has further urged that he had become unpalatable to the petitioner on account of some dispute the petitioner had with his labourers. It would thus seem that the so‑called order of termination is only a guise and cloak to avoid the legal formalities of an enquiry under section 15 (4) of the Ordinance and to say the least it was a colourful exercise of power to get rid of an undesirable employee.

16. Mr. Mansoor Ahmed Khan has further pointed out that in the application made by the respondent before the Labour Court he had him self described the action of the petitioner as one of termination of his services. This argument is fallacious for two reasons‑firstly, that the respondent had described such termination illegal and secondly the very fact of making the application indicates the grievance because if it was a case of termination, no remedy was available in the Labour Court. In any case the respondent in his affidavit of evidence before the Labour Court had stated that the so‑called order of termination was in fact an order of dismissal. What is more that the petitioner did not lead evidence before the Labour Court in justification of the allegations and having failed to do so, he must suffer the consequences.

17. I am of the view that the decision of the Chairman of the Labour Court on both the issues is reasonable and well founded. In the result I see no merit in this petition which is dismissed with costs.

S. A. H. Petition dismissed.