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Writ Petition No.3330 of 1982, decided on 20th March, 1983.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art.199‑‑Consti tutional jurisdiction, exercise of‑‑Order of Labour Appellate Tribunal neither adverting to, referring, explaining or relying upon material on record nor meeting the reasoning advanced by Labour Court and yet differing with finding thereof, held, was not sustainable and was set aside by High Court in exercise of its constitutional jurisdiction‑ Remanding case to be disposed of in accordance with law the Tribunal was directed to dispose same of within specified time.

‑‑Ss.2(xxviii), 25‑A, & 38(3)‑‑Constitution of Pakistan (1973), Art. 199‑‑"Workman"‑‑Status of employee whether workman' or hit by exclusion clause, not determined by Labour Appellate Tribunal‑‑Effect‑ Determination of status of employee whether he was a 'workman' or hit by exclusion clause having not been determined on the basis of documents and material on record, case., held, would fall in the category, where the Tribunal had left the matter undecided and failed to take into consideration the matter and material which it was bound to consider‑‑By such omission on part of Labour Appellate Tribunal foundation was laid for the issuance of a writ of mandamus and appropriate direction of remand.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art.199‑‑Official accommodation‑‑Stay order for retention of‑‑Prayer of stay order was refused by High Court on ground that as the case was being sent back to Labour Appellate Tribunal, employee could seek such a relief from the Tribunal.

Muhammad Ismail Bhatti for Petitioners.

A.H. Najfi with Muhammad Zaman Qureshi for Respondents.

Date of hearing: 20th March, 1983.

This constitutional petition has been filed by the Railways to challenge the vires of the order of the Chairman, Labour Appellate Tribunal, whereby reversing the order of Punjab Labour Court No.2, Lahore the Labour Appellate Tribunal has held the respondents to be workmen and further that the abolition of their posts was not competently done.

2. The brief facts of the case are that the respondents were employed in the year 1955 in the Railways and later designated as A.C.C. Supervisors. At the time of their employment, they were put in a grade which is now equivalent to N.P.S. 11. Thereafter in the year 1980, an officer in the Railways purporting to act under the authority of the Member Mechanical Engineering/ Chairman Railway Board issued a letter abolishing the posts of the A.C.C. Supervisors. Consequently, the respondents have been discharged from service. However, some of them have been offered alternative appointments according to the impugned letter. Hence the litigation between the parties.

3. This writ petition has been argued before me on several dates. I have had the advantage of the assistance of the learned counsel from either side and I have gone through the impugned order as well as the documents placed on the record. Both the sides have referred to a large number of memoranda, circulars and the rules of the Railways in support of their respective contentions.

4. However, on a perusal of the order of the Punjab Labour Appellate Tribunal, I do not find reference to any material/ documents, rules or regulations which should have formed the basis for the decision. The learned counsel from either side were unable to point out a single reference to the mass of documents which have now been placed on the file of this Court.‑On my asking, both the set of counsels were one in saying that the material which has been placed on the High Court record has not been specifically adverted to by the Punjab Labour Appellate Tribunal.

5. After going through the order of the Punjab Labour Appellate Tribunal, I have been left with an irresistible impression that the learned Chairman for whom I have the utmost respect appears to have gone by his own rich technical knowledge and no evidence or the material which has been placed now on the High Court record on the plea that this constituted also the part of the record of the Labour Court has been adverted to, referred or explained or relied upon.

6. There is another defect which is noticeable and that is that while acting as appellate authority the Labour Tribunal has not met the reasoning advanced by the Labour Court and yet differing with the findings a contrary view has been taken and the application under section 25‑A of the Industrial Relations Ordinance allowed.

7. The Labour Appellate Tribunal was required to address itself to two fundamental questions on the basis of the definition of the 'workman' as given in the Industrial Relations Ordinance. The case of Mr. M. Ismail Bhatti for the Railways is that the respondents are covered by sub‑cause (b) of clause (xxviii) of section 2. The contention of Mr A.H.. Najfi for the respondents is that if at all the respondents are hit by the exclusion clause they would be covered by the same clause but according to him the respondents are neither employed in a supervisory capacity nor are drawing wages exceeding Rs.800. This being admittedly the relevant clause which will govern the case in hand, the Labour Appellate Tribunal was required to address itself to the facts of the present case in the light of the said law and then to record a determinative adjudication on the basis of documents and material on the record. This does not appear to have been done.

8. The case to my mind falls in the category where a Tribunal below had left matters undecided and failed to take into consideration the matters and material which it was bound to consider. The foundation is thus laid for issuance of a writ of mandamus and appropriate direction of remand. In view of the nature of the order that I propose to pass, I am not called upon to go into the disputed questions of fact or deal with the contentions being raised from either side because this will amount to contradiction in terms.

9. The writ petition is accordingly accepted, the impugned order of the learned Chairman, Punjab Labour Appellate Tribunal, is set aside and the case is sent back to him for disposal in accordance with law. Needless to emphasize that the matter involves a dispute involving employee and this has been going on for fairly long time. I would therefore direct that this matter will be disposed of by the learned Chairman, Punjab Labour Appellate Tribunal, within a period of one and a half months if possible. In the circumstances of the case there shall be no order as to costs.

10. There is a further prayer from the learned counsel for the respondents that they be granted stay in so far as the official accommodations are concerned. I am not persuaded to grant the prayer because it is open for the petitioners to seek such a relief now from the learned Chairman, Punjab Labour Appellate Tribunal who has become seized of the matter with the pronouncement of this judgment.

A. A./G‑15/Lb.

Petition accepted.

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