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Constitutional Petition No. D‑819 of 1979, decided on 3rd February, 1983.

West Pakistan

----Ss. 1 (4) (a) & 2 (i) read with Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 37‑Grievance petition before Labour Court‑Resisted on grounds that number of workmen employed was less than 20‑Two Chowkidars if excluded as not being workmen total number of workmen would be reduced to less than 20‑Labour Court assuming jurisdiction without coming to conclusion that nature of duties of two Chowkidars would attract definition of "workman" in S. 2 (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Labour Appellate Tribunal also without examining such question upholding order of Labour Court accepting grievance petition‑High Court, in circumstances, exercis ing constitutional jurisdiction and remanding case to Labour Appellate Tribunal to decide appeal after affording opportunity of evidence to parties on question whether duties of two Chowkidars were such as would attract provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968‑Constitutional jurisdiction‑Constitution of Pakistan (1973), Art. 199.

Khalid Javed for Petitioner.

Shahanshah Hussain for Respondents.

Date of hearing : 3rd February, 1983.

AJMAJ. MIAN, J.‑The petition is directed against the order dated 21st January, 1977 and 19th February, 1979 passed by the learned IIIrd Sind Labour Court at Karachi and the learned Sind Appellate Tribunal Karachi, respectively, in applications Nos. 364, 365, 367, 368, 369, 370 of 1976 and Appeals Nos. 182 to 187 of 1978.

The relevant facts leading to the filing of the above petition are that the petitioner is a partnership concern according to the averments in the petition and has 14 powerlooms having less than 20 workers. 1t has been averred that the production of the petitioner's factory stopped on 1st April, 1976 and after that 12 workmen received their dues including ex gratia two months' salary and settled the matter. The electricity was also disconnected on 27th May, 1976 on account of non‑payment. It has been further averred that the respondents Nos. 1 to 5 and one another worker (who later on ‑ settled the matter with the petitioner) without serving any grievance notice filed grievance petition under section 25‑A of the I.R.O. 1969, on 7th September, 1976. It was alleged that in June, 1976, they were stopped from entering into gate of the factory and, therefore, they were aggrieved. In reply to the above petition, the present petitioner inter alia raised the plea that the West Pakistan Standing Orders Ordinance was not applicable to their factory as the workmen employed by them were less than 20. The case proceeded and the learned IVth Labour Court by order dated 21st Feb ruary, 1977 allowed the applications. The petitioner being aggrieved by the above order filed appeal, before the learned Sind Appellate Tribunal, which allowed the same on 20th July, 1977 and remanded the case to Labour Court to decide the question of limitation as well as it was left out. After the remand the learned IIIrd Labour Court by its order dated 29th April, 1978 allowed the application of respondents Nos. 1 to 5 and on the basis of the following statement in the cross‑examination of witness Moosa son of Muhammad Saeed produced by present petition overruled the Petitioner's objection that they had employed less than 20 workmen:‑

There were two shifts in December, 1975. Seven weavers .used to work in one shift. There was one warper. There was one sarner in 1975. There were only two chowkidars in December, 1975. There was only one person working in the office. There. was only one oilman. One Jobber/weaving master worked in both the shifts. I cannot give the number of workmen employed in December, 1975.

The petitioner being aggrieved by the above order filed appeal before the learned Single Appellate Tribunal which by its order dated 19th February, 1979 dismissed the same. The petitioner being aggrieved by the above two orders has filed the present petition.

2. In support of the above petition several arguments were advanced but it our view the basic argument which requires consideration is, as to whether the petitioners were covered by the provisions of the Standing Orders Ordinance because of having 20 workmen. It may be observed that the petitioner in their evidence attempted to prove that they had less than 20 workmen and produced attendance register, exercise register, Labour Director's letter and also affidavit of Muhammad Moosa, whereas the respondents Nos. 1 to 5 in their affidavits of evidence did not aver that in .fact the petitioner's company had 20 or more workmen. It has been argued that unless the learned two Courts below could have come to the conclusion that the nature of duties of two chowkidars were such which would attract the definition of the term workman given in section 2 (1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, respondents Nos. 1 to 5's applications were not maintainable. If the above two chowkidars are to be excluded, in that event the strength of workmen even on the basis of the above admission would be less than 20. In our view it will be just and proper to remand the case to the learned Labour Appellate Tribunal only on the question, whether the duties of the ‑two chowkidars were such as would attract the provis;on3 of the West Pakistan Industrial and Commercial Employment (Standing‑ Orders) Ordinance, 1968. '1 "he parties shall be provided an opportunity to lead evidence and the appeal will be disposed of within a period of three months from the date of the receipt of this order. In the circumstances of the case there, will be no order as to costs.

3. The office is directed to return the record to the appellate Court within a week.

A E. Petition accepted.

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