UNITED BANK LTD. Versus MUHAMMAD ALI
This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby, United Bank Ltd., the petitioner wants this Court to declare the orders dated 24th January, 1978 and 4th November, 1981 passed by Punjab Labour Court No. 9, Multan, respondent No. 2 and Punjab Labour Appellate Tribunal, Lahore, respondent No. 3, to be without lawful authority and of no legal effect.
2. The facts leading up to this petition in brief, are that Muhammad Ali respondent was originally employed as a clerk in 1964. In the year 1973, he was promoted as Officer. On 30th September, 1976 when he was posted as Officer Grade III in Pakpattan Branch, United Bank Ltd., his services were terminated on the ground of lack of confidence in him. Feeling aggrieved, he filed petition under section 25‑A of Industrial Relations Ordinance, 1969 before Punjab Labour Court No. 9, Multan. This petition was accepted by respondent No. 2 on 24th January, 1978 and the petitioner was re‑instated with back benefits. Feeling aggrieved by this decision, United Bank Ltd.. filed appeal before Punjab Labour Appellate Tribunal, Lahore, which was dismissed on 4th November, 1981. Hence this petition.
3. The learned counsel for the petitioner has submitted that since Muhammad Ali respondent No. 1 was not a workman under the law, there fore, Punjab Labour Court, respondent No. 2 had no jurisdiction to entertain the petition under section 25‑A of I. R. O, 1969 and to re‑instate the petitioner.
As against this, the learned counsel for respondent No. 1 has supported the impugned orders of respondents‑ Nos. 2 and 3. He made the following submissions :‑
(1) That since the definition of, "workman" has undergone material changes, therefore, Muhammad Ali respondent No: 1 was a "work man" within the meanings of section 2(28) of I.R.O., 1969 in its latest amended form through Ordinance XXIX of 1973, and as such. the respondents Nos. 2 and 3 were quite competent to entertain and adjudicate ,upon his petition under section 25‑A of 1.R.0. and appeal there from. The learned counsel explained the amendments in the definition of "workman" referred to by him and the defini tion of "employer" as given in section 2(8) of .1. R. O. He sub mitted that these definitions read together, would show that an employee who has no power to hire and reward, even he may be acting as a supervisor and drawing pay more than Rs. 800 per month, would be a "workman". Reliance has been placed on P L D 1977 S C 237, 1979 P L C 355, 1976 S C M R 448 and 1977 S C M R 103. .
(2) That the question whether the employee is a "workman" or not is a question of fact which stands concluded by the concurrent findings of the two tribunals and as such writ would not be a proper remedy to quash the impugned orders, and that in labour cases, writ is not competent. He relied on 1976 P L C 901 and P L D 1976 Lah‑ 1169.
(3) That the right to petitioner to seek redress is not governed by I.R.O. It is, on the other hand. governed by West Pakistan In dustrial and Commercial Employment (Standing Orders) Ordinance, 1968.
4. The crucial point which requires determination in this petition, is whether respondent No. 1 is a "workman" for the purpose of grievance petition under section 25‑A of I.R.O. before Punjab Labour Court No. 9 against his termination from service. Having considered this legal aspect of the case in the light of the record and the arguments advanced by the learned counsel for the parties, I find that despite amendments through different Ordinances and Act XXIX if 1973, an Officer Grade III remains to be "employer" and not "workman". The relevant provisions may be reproduced with advantage : ‑
Sec. 2(xxviii).‑"Worker" and "workman" mean any person not fall ing within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings 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 con nection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dis pute".
Sec. 2(vftl). ‑"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)... ... ... ... ... ...
(b)... ... ... ... ... ...
(c)... ... ... ... ... ...
(d)
(e) .in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof ;"
After having examined the definitions of "employer" and "workman" in its 'latest amended form through Ordinance XXIX of 1973, 1 am of the opinion that as long as the language "other officer or person concerned with the management of the affairs thereof", section 2(vi) exist even the com bined effect of the amendments in the definition of the `workman" introduc ed through Ordinances and Act XXIX of 1973, would not bring an officer o a person concerned with the "management of affairs thereof" within the category of "workman" for the simple reason that no corresponding amend ment has been made in the definition of "employer" under section 2(8xe) so far. The case law cited by the learned counsel for the respondent in this regard being distinguishable is not applicable to the facts and circumstances of this case.
5. As far the factual aspect of the matter, I feel persuaded to agree with the learned counsel for the petitioner that Muhammad Ali, respondent No. 1, an Officer Grade III in United Bank Ltd., was not a "workman" under the law and despite amendments referred to by the learned counsel, he remains to be an "employer" within the meanings of section 2(8) of I.R.O., 1969. Consequently, he was not entitled to move grievance petition under section 25‑A against termination of his service. I am fully conscious that the designation is not the only test for determination whether a employee is a "workman" or not and the real test lies in the duties actually performed by him. It is now well settled that the burden lies on the petitioner to prove that he was a "workman": Admittedly, the respondent was an Officer Grade III at the time of termination of the service. The plain reading of the statements of P. W. 1 Muhammad Ali, respondent No. 1 and of R. W. I Muhammad Akram, Group Incharge, Zonal Office, Sahiwal, documents Exh. P.R., the power‑of‑attorney issued in favour of Muhammad Ali respondent, Exh. P. 2 list of his, duties and the functions which he actually performed as Officer Grade III, leave no room for doubt that the main job of the petitioner was to act on behalf of management and perform functions as were necessary for effective and efficient management thereof. To my mind, he, therefore, was not a "workman" and belonged to superior category distinct from persons...‑skilled, unskilled manual or doing clerical job". He was, therefore, an Officer or person concerned with the management of the affairs thereof. Furthermore, there is no documenter evidence to the effect that after promotion, he was to perform duties quit substantially of clerical nature or duties of a "workman" envisaged by the definition of a "workman" in its latest amended form. For all these reasons, I am of the view that since the jurisdiction of the respondent determine upon the fact whether respondent No. 1 was a "workman" or not and in the case in hand I have come to a definite conclusion that Muhammad Ali respondent No. I was not a "workman", therefore, Respondent No. had no jurisdiction to entertain and adjudicate upon the grievance petition under section 25‑A moved by respondent No. 1 against termination of his service.
6. Adverting to the submissions made by the learned counsel for respondent No. 1, I find that these are without substance inasmuch as, the Respondents having no jurisdiction to entertain the petition could not give findings/concurrent findings on question of fact. Since the concurrent findings have been given by the Tribunals of incompetent jurisdiction, the same are nullity in the eye of law. Needless to say. if a person is not a_ "workman" for the purpose of I.R.O., 1969, he would also not fall within the definition of "workman" for the purpose of "standing orders" inasmuch as the definition of "workman" given in "standing orders" is narrower than the definition given in I.R.O., 1969. Since I have come to the conclusion that Respondents Nos. 2 and 3 had no jurisdiction in the matter it would, therefore, be the duty of this Court to interfere and strike down illegal and unwarranted decisions.
7. The upshot of the discussion is that the petition is accepted: They impugned orders are declared to have been passed without lawful authority and of no legal effect. The parties are, however, left to bear their own costs.
M. Y. H. Petition accepted.