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Writ Petition No. 1168 of 1979, decided on 19th January, 1985.

-- Art. 199-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)-Writ jurisdic tion-Findings of fact-"Workman"-Question whether or not a person is workman-Depending upon nature of duties-Mistri--- Despite specific objection against his claim of being a workman not leading any evidence regarding nature of duties to prove that performance of any manual work was predominant feature of his responsibilities-Evidence on behalf of employer indicating that main duty was to supervise work of workers placed under him and some times as sundry duty used to do work with own hand when a worker was unable to do that work-Labour Appellate Tribunal recording finding of fact unequivocally reflecting that petitioner supervised work of workmen working under him and handled manual work incidentally and was thus not a workman-Order of Labour Appellate Tribunal challenged in writ petition before High Court-Petition, in circumstances rejected-Held: While exercising judicial review there is no reason to ignore findings of fact recorded by the Tribunal in respect of duties performed by petitioner.

Muhammad Anwar-ul-Haq v. Punjab Labour Court P L D 1977 Lah. 907 distinguished.

Ch. Anwar Ali for Petitioner.

Malik Bashir Ahmad for Respondent No. 1.

Date of hearing : 19th January, 1985.

-The petitioner was employed as a Mistri with Pakistan Engineering Company but the Management by its order dated 4th January, 1978 retired him from service w. e. f. 2nd February, 1978 on the plea that he attained age of superannuation. The petitioner challenged this order before the Punjab Labour Court No. 2, Lahore, by means of a grievance petition under section 25-A of the I. R. O. The respondent contested it and inter alia pleaded that the petitioner was not a workman as defined in the Standing Orders Ordinance ; had no right guaranteed to him under any law and the petition under section 25-A was thus not competent.

2. The Labour Court referred to the statement of Ghayyuj Sibtain (R. W. 1) and without any discussion of the nature of the duties performed by the petitioner, rejected the respondent's objections. It further accepted the petitioner's contention that he was born on 22nd January, 1922 and thus, could not be retired on 2nd February, 1978. Accordingly, the griev ance petition was allowed.

3. The respondent preferred an appeal and reiterated the objection that the petitioner was not a workman. The learned Labour Appellate Tribunal, on the question of petitioner's status, disagreed with the Labour Court and held that he was not a workman. Resultantly, the appeal succeeded and the grievance petition was dismissed. The reasons which weighed with the Tribunal, are, to be found in para. 6 of the order under challenge in this writ petition. It, so far as relevant for the purposes of this writ petition is reproduced below :-

"---------It is well-established that in order to determine whether a person is a workman or not, one has to look to the direct, immediate and substantial part of the work for which he is employed and not his sundry duties incidentally performed by him This is a question of fact, which has to be proved in each case. Thus, onus was on the respondent to prove that he was a workman. On going through his evidence on the record, I find that he did not mention anything about the duty performed by him. In other words, he failed to discharge the onus. On the other hand, the duties performed by the respondent were given in the statement made by (R. W. 1) Ghayyur Sibtain, Assistant Foreman. He stated that the respon dent was a Mistri in the Tubewell Shop, where 20 workers were working under him. The respondent used to supervise their work and also used to detail them on duty. He also used to re-commend their applications for leave and some times, when the Assistant Foreman was absent or on leave, the respondent used to sanction their leave. He further added that some times, the respondent used to do the work with his own hands, when a worker was unable to do that work. This last duty in my view was sundry duty and not the main duty, which was to supervise the work of the workers placed under him."

4. The sole question falling for consideration in this case is as to whether or not the petitioner is a "workman" as defined in clause (i) of section 2 of the West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance 1968. This clause runs as under :-

"Workman' means any person employed in any industrial or com mercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

In order to be covered by this definition, the petitioner must show that he has been doing skilled or unskilled manual work. The finding recorded by the learned Tribunal which is a finding of fact, however, unequivocally reflects that the petitioner primarily supervised the work of the workmen, working under him and handled manual work incidentally.

5. The learned counsel for the petitioner has relied on Muhammad Anwar-ul-Haq v. Punjab Labour Court (P L D 1977 Lah. 907) to contend that even a person performing supervisory duties can be classed as a workman. But this argument does not find any support from the precedent aforesaid. That was the case of a Foreman and as a matter of fact, it was found that) he prepared the cart with his own hands. So far as the instant case is concerned, it is to be 'noticed that despite a specific objection to the petitioner's claim of being a workman, be did not lead any evidence, regarding the nature of his duties, to prove that the performance of the manual work was, the predominant feature of his responsibilities. While exercising judicial review, there is no reason to ignore the finding of fact recorded by the Tribunal below, in respect of the duties performed by the petitioner. The Tribunal's findings amply demonstrate that the manual work handled by the petitioner is merely a contingent part of his duties. We, therefore, entirely agree with the learned Tribunal that the petitioner is not a workman. The impugned order does not suffer from any jurisdictional error. Consequently, this writ petition merits dismissal.

6. For the foregoing reasons we do not find any merit in this writ petition. It is, therefore, dismissed but with no order as to costs.

A. E.

Writ refused.

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