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Civil Petition No. 995 of

1976, decided on 20th February, 1979.

(On appeal from the judgment and order, dated 30‑9‑1976 of the Lahore High Court at Lahore in W.P. No. 1426 of 1976).

‑‑‑Ss.2(xxviii) & 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)‑ Constitution of Pakistan (1973), Art. 185(3)‑‑Petition for leave to appeal‑‑Contentions (i) whether petitioner was a 'workman' and his application against his removal from service without any show‑cause notice and necessary enquiry was competent before Junior Labour Court; (ii) whether expression skilled or unskilled qualify words 'manual or clerical' and whether these two expressions used in S.2(i) of Ordinance VI of 1968 could be read in conjunction with each other; (iii) whether in construing definition of term 'workman' for that purpose, basic nature and true character of work entrusted to employee has to be looked at without being unduly influenced by sundry and purely incidental duties performed by him; and (iv) whether in circumstances of case Judge in chambers justified in sitting in appeal over concurrent finding of fact recorded by two labour Courts on evidence before them and inferences drawn by them in that connection‑‑Leave to appeal granted to consider contentions.

Muller & Phips Pakistan Ltd., Karachi v. District Magistrate, Karachi and 4 others P L D 1974 Kar. 261 and Chairman, Brooke Bond (Pak.) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pak.) Ltd., Rawalpindi P L D 1969 Lah. 717 ref.

Muhammad Zaman Qureshi, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondent No.1

Wasim Sajjad, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 20th February‑, 1979.

‑This is a petition for special leave from the judgment, dated 10th of September, 1975, passed by a learned Judge of the Lahore High Court at Lahore whereby he accepted a petition filed by respondent No.2, General Manager, Hotel Inter‑Continental, Lahore, under Article 199 of the Constitution of Pakistan, 1973, in reversal of the two concurrent orders passed by the Labour Courts reinstating the petitioner by setting aside the order for his removal from service with back benefits.

The petitioner was appointed as a Confectionary Cook with respondent No.2 in the year 1971. He was later promoted as a Pastry Chief Incharge of four workers of the rank of Confectionary Cook, working under him. At the relevant time he was drawing a consolidated salary of Rs.860 per mensem.

It is alleged that on the 19th of July, 1974 he attacked the Chief Accountant of the Hotel by throwing at his face a heavy flower vase inflicting injuries on the head. A complaint to this effect was made against him and a case was registerd with the police under section 307, P.P.C. He was, therefore, suspended and dismissed from service on the 22nd of July, 1974. The petitioner then filed an application under section 25‑A of the Industrial Relations Ordinance, 1969 in the Junior Labour Court challenging the validity of the order on the ground that it was passed contrary to the mandatory provisions of the Standing Order 15(4) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 without any show‑cause notice and enquiry and in contravention of the principles of natural justice. Respondent No.2 in reply to the application raised the preliminary objections to the effect that the petitioner was performing the managerial and administrative functions as a member of the management of the Hotel Inter‑Continental at Lahore and was not a workman within the definition of the term in the Industrial Relations Ordinance, 1969 and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and therefore, his petition under section 25‑A of the Industrial Relations Ordinance, 1969 was not competent.

On the 19th November, 1975, the Junior Labour Court No.2, Lahore accepted the application of the petitioner herein and ordered his re‑instatement in service with full back benefits. This order was upheld on appeal of respondent No.2 which was rejected by the Punjab Labour Court No.1, Lahore. But its stated above, both these orders were set aside by a learned Judge of the Lahore High Court at Lahore in writ jurisdiction under Article 199 of the Constitution of Pakistan 1963, on the 20th of June, 1976. Hence this petition for special leave before us against the judgment.

We have heard the learned counsel for the two contesting parties appearing before us. The Junior Labour No.2, Lahore after having recorded the evidence adduced before it by the parties was of the opinion that the petitioner was a workman under the respondent who acted illegally in terminating his service without a proper enquiry held against him. In coming to this conclusion he relied on the evidence of Mr. Akhtar Ali (P.W.4), the Executive Chief who admitted in his cross -examination that he was incharge of the kitchen and that the petitioner was one of his subordinates. In the course of the enquiry before him no documentary evidence was produced by the management about duties of the petitioner as a Pastry Chief. In appeal on a further appraisal of the evidence the Punjab Labour Court No.l, Lahore observed that:‑

"It transpires from the parties evidence that although the respondent (petitioner herein) used to take meals in officer's mess and used to mark his attendance in officer's Register but he worked with his own hands for preparation of confectionary items. He had no power to hire and fire. His pay admittedly was Rs. 860 but this included basic pay as well as allowance. Moreover, he was not employed in supervisory capacity and, therefore, the quantum of wage drawn by him has hardly any relevancy. In view of the above it is concluded that the respondent (petitioner herein) is a workman under the Industrial Relations Ordinance, 1969."

In the proceedings under Article 199 of the Constitution the learned Judge in Chambers appears to have made his own assessment of the evidence and recorded his own findings in reversal of the concurrent orders made by the two Labour Courts. In this connection in conclusion he observed as under:‑

"In the present case there is the evidence of the respondent (petitioner herein) himself showing his own promotion from the job of a worker to that of a supervisor. His own evidence showing that he was supervising the work of four person, making reports against them, complaining about their conduct and recommending disciplinary action. His own evidence shows that he was mainly to supervise the work and to assist in manual work only in exceptional situations when there was rush of work or it was not possible for the four employees to deal with the situation single‑handed or even collectively."

In section 2 (xxviii) of the Industrial Relations Ordinance, 1969 the term "workman" is defined to mean any person not falling within the definition of employer who is employed including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward but does not include any person who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because the nature of duties attached to the office or by reason of the powers vested in him, functions mainly or managerial nature. In this connection section 25‑A of the Ordinance further provides for the redress of individual grievance by a workman in respect of any right guaranteed or secured to him by or under any law by an application in that behalf to the Labour Court. According to the learned counsel the application of the petitioner before the Junior Labour Court was fully competent inasmuch as he had a vested right guaranteed to him under the (Standing Orders) Ordinance, 1968 against his removal from service without any show‑cause notice and the necessary enquiry. In this connection the learned counsel further relied on the definition of the term "workman" in section 2(i) of this Ordinance, for its purpose. It lays down that "workman" means any person employed in any industrial or commercial establishment to do "skilled or unskilled, manual or clerical work for hire or reward".

In the opinion of the learned Judge in Chambers the expression skilled or unskilled qualify the words manual or clerical and had read these two expressions used in section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in conjunction with each other. But in this behalf the learned counsel for the petitioner before us has relied on the observations in Muller & Phips Pakistan Ltd., Karachi v. District Magistrate, Karachi and 4 others P L D 1974 Kar. 261, in which a similar expression in M.L. Order LXII of 1972 was construed disjunctively. This authority evidently supports his contention. The learned counsel has further relied on the pronouncement in Chairman, Brooke Bond (Pakistan) Ltd. Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd. Rawalpindi P L D 1969 Lah. 717 to contend that in construing the definition of the term "workman" for the purpose the basic nature and the true character of the work entrusted to the employee had to be looked at without being unduly influenced by the sundry and purely incidental duties performed by him. Last but not the least the learned counsel has vehemently contended before us that in the circumstances of this case the learned Judge in Chambers was not justified in sitting in appeal over the concurrent finding of fact recorded by the two Labour Courts on the evidence before them and the inferences drawn by them in this connection.

All these contentions raised before us require further consideration. We therefore, grant leave to appeal to the petitioner.

M.Y.H Leave granted.

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