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Constitutional Petition No. D‑54 of 1983, decided on
(a)
‑‑ S. 2 (i)‑"Workman"‑Whether or not an employee a work man‑Determining factor‑‑Nature of duties‑Supervisor claiming to be a workman‑No indication or proof that nature of duties such as to support claim‑‑Findings of Labour Appellate Tribunal that such employee was not a workman challenged before High Court in constitutional petition‑Findings of Appellate Tribunal, in circum stances, endorsed by High Court‑Constitution jurisdiction‑Provi sional Constitution Order (1 of 1981), Art. 9.
Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and and another P L D 1975 Kar. 342 rel.
(b)
‑‑ S. O. 13 ‑ Retrenchment due to re‑organization ‑ Right of employer‑Termination of service on account of retrenchment due to re‑organization‑Challenged on ground of mala fide‑Labour Court accepting plea and awarding re‑instatement with back benefits‑Appellate Tribunal setting aside decision of Labour Court taking view that impugned termination order was not mala fide and that re‑organization was not as a cloak or device to hit some of the employees‑Order of Labour Appellate Tribunal challenged before High Court in constitutional petition‑Order of Labour Court, in circumstances, upheld by High Court and constitutional petition dismissed‑Held : (1) Petitioner had failed to prove that termina tion of his services was in any way mala fide, and (2) employer was free to make re‑organization as was necessary and in consequence thereof retrench as many members of establishment as found redundant ‑ Constitution jurisdiction ‑ Provisional Constitution Order (.1 of 1981), Art. 9.
Akhlaq Ahmed Siddiqui with Mrs. 6. C. Pinto for Petitioners.
.‑The facts giving rise to this Constitutional Petition are that the services of the petitioner, who was employed as Supervisor in the institution of the respondent No. 2, were dispensed with in the wake of re‑organization in the said institution. Being dissatisfied with the order of termination. of his services the petitioner instituted a grievance petition in the
2. The learned counsel for the petitioner who was heard in support of the petition attacked the impugned decision on the ground that the learned Tribunal did not give due consideration to legal and factual aspects of the case but chose to base its decision merely on the petitioner's failure to prove himself as workman and determine his relationship with the respondent No. 2. We regret we are not impressed by this argument. In fact the point whether the petitioner is workman or not within the mean ing of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the said Ordinance) is so material that the assumption of the jurisdiction by the Labour Court depends on determination of the same. If the
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 the power existed. Applying the test to the present case it has to be seen in all depth if the respondent is a work man because if the same was not so found
3. It would be noticed that the learned Tribunal has discussed the petitioner's case thoroughly from all angles. It is incorrect to say that the learned Tribunal confined itself only to limited point of whether the petitioner was a workman or not and disposed the appeal on that ground alone.
4. The contention that prominently figured in the arguments of the petitioner's counsel was that even though petitioner's designation was Supervisor his actual duty was manual and clerical and as such he was workman within the meaning of the said Ordinance, Undoubt edly he is supported by the authority referred to above ‑wherein it was observed:‑
"In my view neither the designation nor the salary is the factor of determination of the status of the employee. The only criterion is the work that an employee has to do and the answerability for the performance."
This point has however been ably disposed of by the learned Tribunal as per para. 3 of its judgment which may be useful to be reproduced as under :‑
"3. The designation of a post, however, is unimportant for deter mining whether an employee is a workman for the purpose of the Standing Orders. What is to be seen is the nature of his duties. In his grievance notice, the respondent merely claimed that he was a permanent workman without indicating the exact nature of his duties. In his grievance petition he has stated that he was perform ing manual work but again has given no indication of nature of his duties. In his evidence before the learned Labour Court the respon dent improved upon his claim made in his grievance petition and stated that he was required to do manual and clerical work, though no mention of clerical work was made in the grievance petition. When he was asked in cross‑examination to indicate the exact nature of his duties, all that he stated was that his duties were mainly of mechanical type. From this answer it is difficult to visualize what exactly the witness meant except perhaps that his duties were of routine character or alternatively that he had something to do with the handling and maintenance of machinery. The respondent, how ever, stated in his cross‑examination that he also used to maintain the production register."
5. We go alongwith the thinking of the Tribunal as has been expressed above and are of the view that the nature of the petitioner's duty did not place him in the category of the workman.
6. Apart from above we endorce the reasoning of the learned Tri bunal that the petitioner has failed to prove that the action of termination) of his services was in any way mala fide. On one hand, as has correct been pointed out by the learned Tribunal, he was not office‑bearer of the Trade Union and on the other hand it was not his function to agitate for payment of overtime so that his employers namely, the respondent No. 2 turned hostile to him. Consequently the question of the termination of his services having emanated from the mala fide act of the respondent No. does not arise.
7. On the question of re‑organization undertaken in the institution of the respondent No. 2, the learned Tribunal has rightly relied on the evidence of the respondent and has come to the correct conclusion that since it has not been established that the re‑organization was mala fide or it was carried out as a cloak or device to hit some employee or employees, the' respondent No. 2 was free to make the re‑organization as was necessary and in consequence thereof retrench as many members of establishment as were found by them to be redundant subsequent to completion of the/ process of the re‑organization.
8. For above reasons we see no merit in the petition which was, therefore, dismissed in limine by short order, dated
A. E. Petition dismissed.
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