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Writ Petition No, 5529 of 1978, decided on 2nd April, 1979.

(a) West Pakistan Industrial and Commercial Employment (Stranding Orders) Ordinance (VI of 1968 )‑

‑‑ ‑ S. O. 12 and Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑‑Appeal before appellate Tribunal‑Appeal against order of Labour Court where original proceedings arose under Standing Orders Ordinance, held, would not lie before Appellate Tribunal

P. I. A. C. v. Chairman, Punjab Labour Appellate Tribunal P L D 1979 Lah. 415 fol.

-----S. 25‑A read with West Pakistan Industrial and Commercial Em ployment (Standing Orders) Ordinance (VI of 1968), S. O. 12 (3) Workman‑Status, determining of‑Employee having no supervisory powers and working under instructions of another‑A workman‑ . To determine his status, main duties and not incidental or minor functions, need consideration.

Dost Muhammad Khan Cotton Mills Ltd. P L D 1976 S C 358 ; Bashir A. Malik P L D 1973 Lah. 594 and P. I. A. C. v. Punjab Labour Appellate Tribunal P L D 1979 Lah. 415 rel.

General Managers Heavy Mcehanical Complex Taxila's case P I. D 1977 Lah. 998 ref.

Mian Saeed‑ur‑Rehman Farrukh for Petitioner,

Nemo for Respondent No. 1.

Mohammad Ahmad Bani for Respondent No. 2.

Date of hearing : 25th March, 1979..

The petitioner assails the order dated 4th June, 1978, passed by res pondent No. 1 for the reason that no appeal lay under Standing Order 12 of the West Pakistan Industrial arid Commercial Employment (Stand ing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance) read with section 25‑A of the Industrial Relations Ordinance, The facts leading to it are as under.

2. Respondent No. 2 was employed as a second officer in the petitioner bank when he was arrested on 1st November, 1975, in respect of a criminal allegation, that he defrauded the bank of a sum of Rs. 3,29,800. The Special Judge, Anti‑Corruption, allowed bail to the respon dent on 3rd January, 1976. It was, however, directed, on an apprehen sion of the petitioner, that respondent No. 2 shall not be permitted to handle cash or bank record.

3. The petitioner proceeded against respondent No. 2 administra tively as well. His services were terminated on 12th March, 1976. Respondent No. 2 is said to have sent a representation on 29th May, 1976. It was styled as an appeal. The petitioner rejected that on 10th, June, 1976. Respondent No. 2 then served a notice under section 25‑A of the I. R. O. on 16th June, 1976. This was also relied in the negative by the petitioner on 21st June, 1976.

4. Finding no relief at the hands of his employer, respondent No. 2 filed an application on 28th June, 1976, under section 25‑A of the I. R.O. before the Labour Court. He appeared as a witness there and produced some record. The petitioner denied the claim of respondent No. 2 and filed a Power of Attorney already executed in favour of respondent No. 2 to show that he was not a workman but an agent.

5. The Labour Court, after considering the case placed before it, repelled the objection of the petitioner that the limitation in filing the appeal should not be condoned. The Labour Court further came to the conclusion that respondent No. 2 was not a workman and dismissed the application vide order dated 16th August, 1977. Respondent No. 2 went up in appeal. It was accepted by respondent No. 1, vide order dated 4th June, 1978. The order of the Labour Court was set aside and respondent No. 1 was ordered to be re‑instated with back benefits. The petitioner now challenges the order of the Appellate Tribunal mainly on the ground that as no appeal lay against the order of the Labour Court, in view of my judgment in case of P. I. A., reported as P L D 1979 Lah. 415, the‑impugned order is without lawful authority and so of no legal effect.

6. The contention being raised is supported by the view taken in the above‑mentioned case wherein, it was held by me that no appeals lies before the appellate Tribunal in a case where the original proceedings arose under the Standing Orders Ordinance, 1968. The impugned order of the Tribunal is, therefore, likely to be set aside on that ground. However, the net result of such an order would be that the order of the Labour Court shall stand restored.

7. One of the questions raised before the Labour Court was that respondent No. 2 was not a workman and, therefore, he could not invoke the jurisdiction of that Court under section 25‑A of the I. R. O. read with Standing Order 12 (3). The parties led evidence on the issue as well. I, however, find that the inference of law drawn by the Labour Court from the facts on record is not correct. It is clear from the statement of the respondent that he was doing clerical work. The petitioner relied on a Power of Attorney to show that he was not a workman as defined under the Standing Orders Ordinance.

8. The law laid down by the Supreme Court in the case of Dost Muhammad Khan Cotton Mills Ltd. (P L D 1976 S C 358), that if an employee had no super visory power and was working under the instructions of another, he was a workman. Again performance of some supervisory power would no 3 take a workman out of the definition of a workman as held in the case of Bashir A. Malik (P L D 1973 Lah. 594). It was held in P.I. A. C. v. Punjab Labour Appeal late Tribunal (P L D 1979 Lah. 415) that in order to determine the status of an employee, his main duties and not the incidental or minor functions, should be considered.

9. The Labour Court has not considered the case from the above angle. It has not been shown that the respondent did no other work than what is given in the Power of Attorney. Further, if not, what was his main duty Was the clerical work incidental or the duty under the II Power of Attorney So to restore the order of the Labour Court would amount to restoring another unlawful order.

10. A similar situation came up before this Court in the case of General Manger, Heavy Mechanical Complex Taxila (P L D 1977 Lah. 998) wherein this Court refused to grant any relief to the petitioner as the order of the lower authority was substantially correct. This is the first alternative. The other is that both the orders, which are not valid, be declared to be without lawful authority and the matter be referred back to the Labour Court to consider and decide the same afresh in accordance with law. A look at the two alternatives, would show that the second one is in the interest of justice. It will' get the controversy settled oil merits than throwing out any of the parties on a technical ground.

11. In view of the above discussion, both the orders are declared to have been passed without lawful authority. They are, therefore, of no legal effect. The result is that the petition filed by respondent No. 2 under section 25‑A of the I. R. O. before the. Labour Court shall be deemed to be awaiting a. fresh decision in accordance with law. There will be no order as to costs.

Order accordingly.

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