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Civil Petition for Special Leave to Appeal No. K‑120, decided on 17th September, 1975.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑--
---S. 2‑"Workman"‑Chief Accountant getting monthly salary of Rs. 1,050 acting under instructions of Incharge of Accounts Section of Company and having no supervisory functions to perform‑Held, a workman and termination of his services due to unsatisfactory work amounted to dismissal from service.
---Art. 185(3)‑Leave to Appeal to Supreme Court‑Point not argued in High Court‑Held, cannot be allowed to be raised for first time in Supreme Court.‑[Leave to appeal].
Malik & Haq and another v. Muhammad Shamsul Islam Chowdhury P L D 1961 S C 531 distinguished.
Mansoor Ahmad Khan, Advocate Supreme Court instructed by V. A. Kidwai, Advocate‑on‑Record for Petitioner.
Naimuddin, Advocate Supreme Court instructed by Ali Akbar, Advocate- on‑Record for Respondents.
‑This is a petition for special leave to appeal from an order of a learned Single Judge of the High Court of Sind & Baluchistan, Karachi, dismissing a writ petition filed for calling in question an order of the Chairman, First Sind Labour Court, Karachi, dated 20‑7‑1972, whereby the order of the petitioner, terminating the services of the respon dent had been held to be invalid.
The respondent, it appears, was appointed as Chief Accountant of the petitioner‑Company on a salary of Rs. 1,050 per month on the 13th March, 1969. But, on the 8th January, 1970, he was ordered to act under the instructions of Mr. Farid Khan, who had been given full charge of the Accounts Section. Therefore, his services were terminated on the 28th February, 1970 for the following reasons:‑
"Although we gave you a reasonable time to work as Incharge of the Account Section, but unfortunately, we could not get the satisfactory results."
The respondent, treating this as an order of dismissal, within the meaning of section 15 of the West Pakistan (Standing Orders) Ordinance, 1968, challenged its validity before the Labour Court, Sind, which came to the conclusion that the order was in effect an order of dismissal and not merely an order of termination.
Two points, it appears, were argued before the Labour Court: Firstly, it was contended that the respondent was not a workman within the definition given in the Standing Orders Ordinance, 1968 and, secondly, that this was a case of termination of service and not of dismissal.
As already stated, the Labour Court found against the petitioner on both these points. In the High Court, the same points were argued. The respondent also contended that since the Labour Court had decided as questions of fact, the two points mentioned above the High Court could not, in its writ jurisdiction, interfere with such findings of fact.
The High Court rejected the respondent's contention that all findings of fact by Tribunals of limited jurisdiction were sacrosanct. It held that it could examine the findings of such tribunals if the decision was arrived at on the basis of "irrelevant facts or was not based on the evidence on record".
The tribunal, in our view, rightly held that the respondent was a workman and that the impugned order was an order of dismissal.
The petitioner company now seeks special leave to appeal. We can find no reason to take any legitimate exception to the findings of the High Court on the first two points, viz. as to whether the respondent was a workman within the definition of the Standing Orders Ordinance and whether the order amounted to an order of dismissal. We have examined the chart of duties of the respondent. It is also clear from the statement in his affidavit that he had no supervisory functions at all after he was asked' to act on the instructions from Mr. Fareed Khan.
The order impugned before the trial Court speaks for itself. It seeks to put an end to the service because the respondent had been unable to give satisfactory results. The order, therefore, seeks to put an end to the service of the respondent, because, of the unsatisfactory nature of his work.
Learned counsel, appearing for the petitioner, lastly sought to contend that the order of the Labour Court to reinstate the respondent was not justified. Unfortunately, this point was not argued in the High Court.
So it cannot be allowed to be raised for the first time in this Court.
The reliance sought to be placed by the learned counsel appearing in support of the petitioner on the case of Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chowhury (P L D 196.1 S C 531) is not apt since that was a case under the Specific Relief Act and it was there held that specific performance cannot be ordered of a contract of services. The standing orders give the right to the Labour Court to order re‑instatement. Therefore, the contention that re‑instatement was not an order passed with jurisdiction is not tenable.
The case of Assam Oil Co. Ltd., New Delhi v. Its Workmen has also no application because it appears that a specific objection was taken in that case to the reinstatement on the ground of loss of confidence in the workman by the employer in a case where the workman was employed in a position of confidence. This is not the case here. This petition is, accord ingly dismissed.
Petition accordingly dismissed.
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