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Industrial Relations Ordinance (XXIII of 1969) ---

‑‑ Ss. 25‑A, 36 & 37 read with Civil Procedure Code (V of 1908), O. XLI, r. 27‑Adjudication of grievance petition‑Additional evidence at appellate stage‑General principles of Civil Procedure Code, 1908 though applicable to. Labour Appellate Tribunal but it has more discretion and wider power to allow additional evidence at appellate stage‑Grievance petition resisted on grounds that petitioner before Labour Court was not a workman as defined in S. 2 (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Appointment order containing description of duties though could be produced by petitioner not produced before Labour Court‑Witness of employer (respondent before Labour Court) wanting to produce certain documents to show duties assigned to employee (petitioner before Labour Court) but request not allowed by Labour Court on technical grounds that such documents were not produced within time‑Attempt to pro duce such documents before Labour Appellate Tribunal proving abortive on plea that O. XLI, r. 17 of Civil Procedure Code, 1908 was applicable hence additional evidence could not be produced at appellate stage‑Labour Appellate Tribunal on basis of oral statement of employee deciding that he was a workman‑ Decision,, Order of Labour Appellate Tribunal challenged in constitution petition before Labour Court‑High Court, in circumstances accepting petition and taking view that it would be just and proper to remand case to Labour Appellate Tribunal with direction to allow opportunity to both parties to produce evidence /documents on question of duties performed by employee and thereafter to decide whether Le fell within definition of workman under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Constitutional petition‑Provisional Constitution Order (I of 1981), Art. 9.

Messrs Merck Sharp & Dohme of Pakistan Ltd. v. Sind Labour Appellate Tribunal and 2 others 1981 P L C 148 rel. Khalid M. Ishaque for Petitioner. Mirza Muhammad Kazim for. Respondents. Date of hearing : 20th October, 1983.

AJMAL MIAN, J.‑

This petition is directed against the order, dated 10th February, 1982 passed by respondent No. 1 setting aside the order passed by the Labour Court, dated 26th November, 1980 and remanding the case to the Labour Court with the direction to proceed on merits.

The brief facts leading to the filing of the above petition are that respondent No. 3 filed an application under section 25‑A of the I.R.O. for certain reliefs. The petitioner had averred that he was not a work man. The learned Labour Court held that respondent No. 3 was trot a workman and, therefore, the application was not competent. Respon dent No. 3 being aggrieved by the above order filed appeal No. KAR‑976/ 1980, which was decided by the aforesaid impugned order, dated 10th February, 1982 is the above terms. The petitioner being aggrieved by the above order has filed the present petition.

2. (a) In support of the above petition it has been urged by Mr. Khalid M. Ishaq, learned counsel for the petitioner that the question, whether res pondent No. 3 was a workman or not could not have been determined on the basis of the oral statement of respondent No. 3 but she could produce the letter of appointment and other documents, whereby duties were assigned to her. It has been further urged that her counsel had made incorrect statement of legal position before respondent No. 1 by stating that Order XLI, rule 27, C.P.C. is applicable strictly to the pro ceedings before the respondent No. 1.

(b) On the other hand Mirza Muhammad Kazim, learned counsel for respondent No. 3 has urged as follows

(i) That the above petition is not maintainable as it has been signed by the Manager of Skyrooms Ltd. which is owned by the P.I.A. as per averment in the petition.

(ii) That the petitioner had ample opportunity to produce the docu ments before the Labour Court which they had failed to produce at the appropriate stage and, therefore, the Labour Court as well as appellate Court were justified in declining to entertain the re quest for production of the documents at late stage.

3. It may be pertinent to take up the above legal objection raised by Mr. Kazim in respect of the maintainability of the above petition In our view, the fact that Skyrooms Ltd. is still a corporate body has not been denied nor it has been averred in the petition that this company stands dissolved after P.I.A. had acquired majority shares or the total shares in the above company. In this view of the matter, the petition is competent not only for the above reason but also for the reason that admittedly respondent No. 3 bad filed her application under section 25‑A against Skyrooms Ltd, and not against any other company.

4. As regards the merits of the above case, it is true that petitioner bad not produced documents at the proper stage before the Labour Court but at tire same time it cannot be denied that when petitioner's witness was examined. he wanted to produce certain documents to show the duties assigned to respondent No. 3 but the above request was declined by the Labour Court on technical ground that the documents were not produced within time. The attempt made before the Appellate Labour Court proved to be abortive for the reason that the learned counsel appearing for the petitioner had made incorrect statement of law by A saying that Order XLI, rule 27, C.P.C. was strictly applicable to appeal before the Labour Appellate Tribunal. In our view, initial burden was ‑on respondent No. 3 to show that the duties assigned to her were such which fall within the four corners of the duties specified in section 2 (i) of the West Pakistan Standing Orders Ordinance, and the best evidence on the above point could have been the documents whereby the duties were assigned. The above documents could have been produced by respon dent No. 3 herself which also included letter of appointment, which was not done by her. It may be pertinent to refer to the case of Messrs Merck Sharp & Dohme of Pakistan Ltd. v. Sind Labour Appellate Tribunal and 2 others (1982 P L C 148), in which a Division Bench of this Court has held that though general principles of C.R.C. are applicable to a Labour Appellate Tribunal but it has more discretion and wider power to allow the additional evidence at the appellate stage. In our view, it will be just and proper to remand the case to the Appellate Tribunal with the direction to allow an opportunity to both the parties to produce docu ments on the question of duties which were performed by respondent No. 3 and after taking such evidence to decide the matter afresh on the question whether respondent No. 3 falls within the definition of a work man given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. In the circumstances of the case there will be no order as to costs. The learned Labour Appellate Tribunal shall decide the above appeal within three months from the date of receipt of copy of this order.

A. E. Petition accepted. Case remanded.

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