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Constitutional Petition No. 768 of 1981, decided on 29th January, 1986.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(1)‑‑Termination of service‑‑Labour Appellate Tribunal on appeal against order of Labour Court re‑instating petitioners, remanding case back to Court for deciding certain issues but ultimately going beyond scope of issues framed by it and deciding matter on a point not urged even by employer‑‑Employee (petitioner) was not provided with sufficient opportunity and was, therefore, prejudiced in his cause‑‑Order of Labour Appellate Tribunal set aside and case remanded to Labour Court for decision afresh.

1978 P L C 194 and 1980 P L C 1012 ref.

M.L. Shahani for Petitioner.

Muhammad Sharif for Respondent.

Date of hearing: 29th January, 1986.

‑This petition is directed against the order passed by Sind Labour Appellate Tribunal on 12‑8‑1981 in Appeal No. KAR‑287 of 1981. The relevant facts are that the petitioner was employed by respondent No.l, Port Muhammad Bin Qasim Authority, as a motor driver since 1975. His services were terminated on or about 4‑8‑1979. He filed a grievance petition before IVth Sind Labour Court, for re‑instatement. His application was allowed on 31‑3‑1980 on the findings that the petitioner was a workman within the meanings of section 2(1) of Standing Orders Ordinance, 1968, and the respondent No.l being an industry was covered by the provision of Standing Order Ordinance, 1968, and in consequence of the above finding he was ordered to be re‑instated in service with back benefits within a period of 15 days. The respondent No.l preferred an appeal before respondent No.2, and the matter was remanded back to the IVth Sind Labour Court to give fresh findings after recording evidence on the following two issues: ‑

(i) whether there are docks, jetties, piers and wharves in existence in the area of Port Qasim Authority;

(ii) whether there are docks, jetties, piers and wharves under construction in the said area and if so at what stage of construction they are

The Labour Court took into consideration various factors and came to the conclusion that the petitioner was employed as motor driver on a motor car which was used by the Senior Executive of the respondent No.2 and since these officers were engaged in connection with and incidental to the developments to the part which included dock, jetties and wharfs, and, therefore, he could not be said to be employed in connection with any other unit. It was further held by the Labour Court that respondent No. 2, miserably failed to lead any evidence on this aspect of the case and they were estopped from raising this vital point at this stage. It was also noted by the Labour Court that on Site inspection he had found that out of two berths and two sheds for exporting goods and storing them one berth had been completed while the rest were under construction with respondent No.l.

The respondent No.l filed an appeal before the Sind Labour Appellate Tribunal which after taking into consideration the provisions of Port Qasim Act, 1973, came to the conclusion that respondent No.l is required to perform multifarious functions and, therefore, its units or departments cannot be considered as a single establishment for the purposes of the Standing Orders. It was observed by the Tribunal that docks, wharves, jetties and other establishments of respondent No.l, which may fall within the definition of industrial establishment, must be viewed separately from other establishments of the authority for the purposes of Standing Orders. It was held that an employee working in connection with industrial establishment would be deemed to be a workman, if employed mainly to do manual or clerical work. But the employees in other establishment who do not come within the definition of an industrial and commercial establishment' would not be deemed to be a workman.

The Tribunal noted some judgments on the points that an organisation may consist of different establishments some of which could be of industrial and commercial nature and others do not of such nature and, therefore, every establishment has to be treated separately. Reference was made to 1978 P L C 194 and 1980 P L C 1012 and a case of Mst. Nawab Bibi decided on 25‑11‑1980 by the Tribunal.

Finally in para. 8, the Tribunal held as under:‑

The respondent workman, admittedly, was employed as a Driver. There is no evidence to show that he was employed in connection with docks, jetties or wharves. Thus, in my opinion, the respondent cannot be considered to be a workman for the purposes of the Standing Orders and would not be entitled to file or maintain a grievance petition under clause (3) of the Standing Order 12 read with section 25‑A, I.R.O.

After hearing Mr. M.L. Shahani, Advocate for the petitioner and Mr. Muhammad Sharif, on behalf of counsel of respondent No. 1, we had allowed this petition on 27‑1‑1986 by a short order and remanded the case back to IVth Sind Labour Court to record fresh evidence on the point; whether the petitioner was employed in respect of any establishment of industrial nature and to give fresh decision after notice to both the parties.

We are of the view, that when the case was remanded by the Sind Labour Appellate Tribunal to the Labour Court the same was done to determine the issues whether there are docks, jetties, piers and wharves in existence in the area of respondent No. 1 and whether the same were under constructions and in what stage of construction. The remand order, therefore, assumed that if the wharves jetties and piers etc. were under construction then the whole of the organisation of respondent No. 1 was to be treated as industrial establishment and otherwise not. There was no direction to determine the question that there were different establishments with respondent No. 1, some of which were of industrial nature and the others of some other nature. And further there was no direction to determine the question as to whether the petitioner was actually working in or in respect of a department or establishment of respondent No. 1 which was of industrial and commercial nature. This being the position the petitioner must have been under impression that he was only to prove that the respondent No. 1 was constructing wharf and jetties and no other proof was required from him.

The Labour Court had given a finding that petitioner was working with an executive of respondent No. 1 and that respondent No. 1 was constructing wharves and jetties and, therefore, the petitioner was treated as a workman.

However, the appellate Tribunal in its final order took entirely different decision and came to the conclusion that the work and duties assigned to respondent No. 1 by the Port Qasim Authority Act were of maltifarious nature and it should be having different establishments, some of which were of industrial nature and some of which were of another nature. On that basis it sought evidence from the petitioner that he was working in an establishment of an industrial nature, and finding that there was no such evidence, it allowed the appeal of respondent No. 1.

We are clearly of the view that the ultimate decision of the

Tribunal, respondent No. 1, was not in consonance with it's remand A order where it had framed two additional issues mentioned above.

The appellant Tribunal went beyond the scope of the issues framed by it and, therefore, the petitioner was not provided with sufficient opportunity to show that he was actually working in respect of an establishment which was of industrial or commercial nature in the organisation of respondent No. 1. The petitioner was, therefore, prejudiced in his cause as he could have presumed that he was merely required to show that wharves and jetties were under construction g with respondent No. 1 and nothing else was to be done by him in order to connect his services in respect of establishment of industrial/ commercial nature. Consequently, we were of the view that the order of respondent No. 2 dated 12‑8‑1981 was without lawful authority to the extent that it had failed to decide the matter on the basis of issues framed by itself and it had proceeded to decide the matter on a point which had not been urged even by the respondent No. 1, upto remand stage.

We have, therefore, set aside the order of respondent No. 1 dated 12‑3‑1981 and remanded the case for fresh decision to the Labour Court No. IV to record fresh evidence after notice to the parties on the point whether the petitioner was employed in respect of any establishment of industrial nature with respondent No. 1. Parties were directed to appear before the Labour Court on 15‑2‑1986. The Labour Court was directed to decide the case within four months of first hearing before it.

M. Y. H./5021/Lb Case remanded.

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