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Writ Petitions Nos.3647 to 3650 of 1987, decided on 22nd September, 1987.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art.199‑ Dismissal‑‑Grievance petition against such dismissal rejected by Labour Court‑‑Case remanded by Labour Appellate Tribunal‑‑Finding of Labour Appellate Tribunal challenged in constitutional jurisdiction‑ Competency‑‑Labour Appellate Tribunal, in exercise of appellate jurisdiction, held, was competent to remand case in the interest of justice‑‑There being no jurisdictional defect, in the remand order of Labour Appellate Tribunal and such order having been in accord with law and evidence on record, same could not be set aside in constitutional jurisdiction of High Court.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal etc. P L D 1987 S C 447; M.A. Khokhar v. Sh. Manzoor Ahmad and another N L R 1984 Civil 253; Hira Lai v. Ratan Lai A I R (31) 1944 All. 293; Muhammad Husain Munir v. Sikandar P L D 1974 S C 139; Sub. Muhammad Asghar v. Mst. Safia Begum and another P L D 1976 S C 435; Sadiq Husain Qureshi v . Federation of Pakistan etc. P L D 1979 Lah.l; Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. and another P L D 1979 Lah. 603; Javed lqbal and another v. District Judge Jhang etc. P L D 1987 Lah. 9; Abdul Kareem v. Zaram Hussain 1986 C L C 1942; Manzoor Ahmad v. Burmah Eastern Ltd. etc. PLD 1969 Dacca 94; The Chief Settlement Commissioner, Lahore v. Raja

Muhammad Fazil Khan etc. P L D 1975 S C 331; Hams Ali v. Custodian of Evacuee Property, Sind etc. 1975 S C M R 39; The Presiding Officer v. Sadruddin Ansari etc. P L D 1967 S C 569 and Dr. Kamal Husain etc. v. Muhammad Sirajul Islam etc. P L D 1969 S C 42 ref.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal etc. P L D 1987 S C 447 distinguished.

‑‑‑Ss.2(xxviii) & 25‑A‑‑"Workman"‑‑Nature of duties‑‑Employee, whether a workman or not‑‑Forum competent to determine status of employee‑‑Employee working with his own hands would prima facie be "workman"‑‑Fact whether an employee was a 'workman' or not, held, had to be determined by Labour Court or Labour Appellate Tribunal‑ Where forum below had failed to determine on basis of evidence, whether employee was workman or not, case had to be re‑opened for such determination by Labour Court.

Hira Lai v. Ratan Lai A I R (31) 1944 All. 293 and M.A. Khokhar v. Sh. Manzoor Ahmad and another N L ft 1984 Civil 253 ref.

Muhammad Zaman Qureshi and Mian Muhammad Saleem for Petitioner.

S.M. Zubair, Addl. A.‑G. Punjab for Respondent No.l. M.A. Hameed Awan for Respondent No.2.

Date of hearing: 9^thSeptember, 1987.

The petitioners M/s Sufi Soap and Chemical Industries Limited, Sheikhupura Road, Lahore, have moved W.P.No.3647 of 1977, W.P.No.3648 of 1987, W.P.No.3649 of 1987 and W.P.No.3650 of 1987, praying therein that the impugned order dated 8‑7‑1987 passed by the Punjab Labour Appellate Tribunal, Lahore, respondent No.1, in each case, may be declared without lawful authority and of no legal consequence. Since the common question of law and facts is involved in all these petitions, I propose to dispose of the same by a single judgment.

2. The brief facts of the case are teat Muhammad Mustafa Chaudhry, respondent No.2 in W.P.No.3647 of 1987 was employed by the petitioners as a Chemist in their concerned industry. However, the services of the said respondent were terminated by the petitioner vide the termination notice dated 17‑6‑1985 (Annexure 'A') on the ground of retrenchment and financial difficulties having taken place because of load‑shedding. Respondent No.2 challenged the aforesaid termination notice by filing a petition under section 25‑A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court No.3, Ferozewala, District Sheikhupura. Similarly, the other respondents in the three connected writ petitions also moved similar petitions before the same Punjab Labour Court No.3. The contention of the respondents in all these cases was that services have been terminated on account of their Union activities and as such their termination from service was based on mala fides. The learned Presiding Officer, Punjab Labour Court No.3, vide his order date the 9th of May, 1987, dismissed all the petitions. It was held by the, learned Labour Court that the posts of the respondents have been abolished because of financial losses occurring to the petitioner on account of load‑shedding of electricity and gas. All the respondents in the above referred connected writ petitions, namely, Muhammad Mustafa Chaudhry, Muhammad Akbar Khan, Siddiq Ahmad Usmani and Muhammad Akbar, filed regular appeals under section 37 of the Industrial Relations Ordinance, 1969, before the Punjab Labour Appellate Tribunal, Lahore, challenging the orders dated 9‑5‑1987 passed by the Punjab Labour Court No.3. The learned Punjab Labour Appellate Tribunal vide his consolidated order dated 8‑7‑1987, proceeded to accept all the appeals and to remand the same to the learned trial Court for fresh decision, without touching the merits of the case mainly on the ground that the respondents‑appellants had moved applications in their respective cases on 12‑11‑1985 for the production of certain documents which have been detailed in the miscellaneous applications. The learned trial Court vide its order dated 5‑12‑1985 allowed the balance sheets only mentioned in paragraph 14 of the said petitions for their production, whereas without giving any cogent reasons disallowed the remaining important documents to be produced which are mentioned in paragraphs 1 to 13. The learned Punjab Labour Appellate Tribunal came to the conclusion that the learned trial Court had failed to give any reasons thereof and as such, the order in question was arbitrary. It was further observed by the learned Labour Appellate Tribunal that the' learned trial Court has failed to hold that the remaining documents were not relevant to the case. The learned Labour Appellate Tribunal proceeded further to observe that the documents mentioned in paragraphs No. l to 9 were prima facie relevant to the case, and were available. In the result, the learned Labour Appellate Tribunal came to the conclusion that the learned trial Court should reconsider the miscellaneous applications dated 12‑11‑1985 to allow the production of documents which are proved to be relevant in the case. This judgment of the learned Punjab Labour Appellate Tribunal, as mentioned earlier, has been assailed by the petitioners in all the above referred writ petitions.

3. Learned counsel for the petitioners has forcefully submitted that there was a clear finding given by the Punjab Labour Court No.3 that the respondents were not workmen and as such, the grievance petitions were rightly dismissed. Therefore, the learned Punjab Labour Appellate Tribunal has no jurisdiction whatsoever to entertain the appeals and to pass the impugned order. Learned counsel argued that by declaring the order of the learned Labour Appellate Tribunal without lawful authority, it may be set aside and the orders passed by the learned Labour Court No.3 may be restored. The learned counsel has placed heavy reliance on a recent decision given by the Honourable Supreme Court cf Pakistan in the case of Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal etc. (P L D 1987 S C 447). The learned counsel argued that there was absolutely no necessity to allow an opportunity to the respondents to fill in the lacuna left in the case by remanding the case. In that behalf, reliance has been placed on M.A. Khokhar v. Sh. Manzoor Ahmad and another (N L R 1984 Civil 253) and Hira Lal v. Ratan Lal (A I R (31) 1944 All. 293). The learned Additional Advocate‑General, Punjab, has submitted that the learned Labour Appellate Tribunal has heard the appeals filed by the respondents in these cases and as such, he was competent to remand the cases for fresh decision on merits to the learned trial Court. He has maintained that the right of appeal is the continuation of suit and other proceedings. This being so, there is no jurisdictional defect having been pointed out by the petitioner in the impugned order of the Tribunal. Reliance thereof has been placed on Muhammad Husain Munir v. Sikandar (P L D 1974 S C 139), Sub. Muhammad Asghar v. Mst. Safia Begum and another (P L D 1976 S C 435); Sadiq Husain Qureshi v. Federation of Pakistan etc. (P L D 1979 Lah. 1) and Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. and another (P L D 1979 Lah. 603). It is next vigorously argued that the impugned order passed by the learned Labour Appellate Tribunal is on the face of it in the nature of an interim order. This being so, this order could not be challenged in the exercise of writ jurisdiction in the High Court. Reliance thereof in placed on Javed Iqbal and another v. District Judge Jhang etc. (P L D 1987 Lah.9); Abdul Kareem v. Zaram Hussain (1986 C L C 1942), Javed Iqbal and another v. District Judge Jhang etc. (P L D 1987 Lah.9) and Manzoor Ahmad v. Burmah Eastern Ltd. etc. (P L D 1969 Dacca 94). Lastly, the earned Law officer as urged that the writ jurisdiction being a discretionary in nature, cannot be exercised in the aid of a litigant who has failed to demonstrate any gross injustice being done to him. In this behalf the learned Law Officer has placed reliance on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan etc. (P L D 1975 S C 331), Hams Ali v. Custodian of Evacuee Property, Sind etc. (1975 S C M, R 39), The Presiding Officer v. Sadruddin Ansari etc. (P L D 1967 S C 569) and Dr.Kamal Husain etc. v. Muhammad Sirajul Islam etc. (P L D 1969 S C 42). Learned counsel for respondent No.2 has mainly adopted the arguments advanced by the learned Additional Advocate‑General, Punjab.

4. I have heard the learned counsel for the parties at considerable length and have perused the record very minutely. I am of the considered view that learned counsel for the petitioner has wholly filed to point out any jurisdictional defects whatsoever in the impugned order passed by the learned Punjab Labour Appellate Tribunal. It may be observed that the learned Tribunal has heard the appeals of the respondents‑appellants and as such, the whole case was open before him and, therefore, in the exercise of his appellate jurisdiction he was completely competent to remand the cases in the interest of justice. It was clearly held by him that the very important documents mentioned in the miscellaneous applications, which documents had a clear bearing for the just and proper decision of the case, were not p at all considered by the Punjab Labour Court No.3. This fact persuaded him to interfere in the matter and to remand the cases to the trial Court for considering these documents. The learned Labour Appellate Tribunal has also not only given an opportunity to the respondents- appellants to produce the relevant documents mentioned in the miscellaneous applications, but he had also given an opportunity to the writ petitioner to produce the evidence in rebuttal thereof. Thus, from the bare reading of the impugned order it appears that the remand order is just and proper and no injustice whatsoever has been done to the writ petitioner.

5. Learned counsel has submitted that there is a finding given by the learned Labour Court that the respondents‑appellants were not the workmen and as such, there was no jurisdiction vested in the learned Labour Court and the learned Labour Appellate Tribunal to decide the matter. I am afraid, there is nothing on the record to show that the respondents were not the workmen as warranted in law. It may be seen that in W.P.No.3647 of 1987 there is no clear cut finding having been given by the learned Punjab Labour Court No.3 that respondent No.2 was not a workman. The operative part of the judgment is in paragraph 5 which does not speak of the fact that the respondent was not a workman. In the end of paragraph 3, while discussing the evidence, the learned Labour Court said that the respondent was not a workman. In my view, this was not enough. Perhaps the learned Labour Court was making reference to the evidence in the case. Otherwise, his finding is given in paragraph 5 of the judgment. Even otherwise, there was no evidence whatsoever led by the petitioner to prove that the respondents are not workmen. In W.P.No.3647 of 1987, respondent No.2 was a chemist and he appeared as P.W.1 in the case. He stated that he used to take samples and used to analyse them. He further stated that he used to prepare reports after analysing the samples. Similarly in other connected W.P.No.3648 of 1987 respondent No.2 Muhammad Akbar Khan was working on the boiler and was drawing a salary of Rs.900/‑ per month. He used to run the boiler installed in the factory. In W.P.No.3649 of 1987, respondent No.2 Siddiq Ahmad Usmani, was working as a storekeeper. The work assigned to him was to keep the goods in the store and to take them out of the store. Similarly, in W.P. No.3650 of 1987, respondent No.2 Muhammad Akbar was a labourer employed in the boiler section of the factory. He used to look after the boiler. Prima facie it is clear from the nature of the duties being performed by all the respondents‑appellants that they were the workmen as all of them, as shown in the evidence, worked with their own hands. Be that as it may, I would not like to give any opinion whether the respondents were in fact the workmen or not because this function has to be performed by the learned Punjab Labour Court No.3 or for that matter by the learned Punjab Labour Appellate Tribunal, Lahore.

6. It is crystal clear that there is absolutely no finding having been given by the learned Labour Court No.3 on the question whether the respondents‑appellants were workmen or not. Similarly, it is also clear that the learned Labour Appellate Tribunal has also not given any finding thereof. The whole case had been reopened and had been sent to the learned trial Court for his decision on merits. It is for the trial Court to come to some conclusion on the basis of evidence whether the respondents were the workmen or not or whether there was ample justification on the basis of evidence and law for their removal from service on account of retrenchment occurring due to financial losses in the factory.

7. There is considerable force in the contention of the learned) Additional Advocate‑General that the writ petitioner has failed to, point out any jurisdictional defects in the impugned judgment of the, learned Punjab Labour Appellate Tribunal. In my view, the learned Labour Appellate Tribunal has decided the appeal in accordance with, law and evidence produced by the parties and, therefore, it cannot' be said that the impugned judgment is without lawful authority and of no legal effect. The learned counsel for the petitioner has placed reliance on Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal etc. (P L D 1987 S C 447) and has contended that the judgment of the Labour Appellate Tribunal is without jurisdiction on the ground that the respondents‑appellants are not the workmen. As observed earlier, there is no evidence produced by the writ petitioner to that effect showing that the respondents were not workmen. Therefore, the rule laid down by the Supreme Court of Pakistan is not applicable to the facts and circumstances of the instant cases. In the referred case, the facts were wholly different. In that case the employee was promoted from the post of salesman to the post of supervisor. The post of supervisor was abolished. The grievance petition of the employee in that case succeeded on the ground that being employee, he could ‑be reverted to his original post of salesman which post had not been abolished. This decision of the Labour Court was upheld by the Punjab Labour Appellate Tribunal as well as by the High Court. The view of the Honourable Supreme Court in the referred case was that nothing had been shown by the employee that some law was violated or that under some law he could be reverted to the post of salesman in case his present post of supervisor was abolished. The Honourable Judges of the Supreme Court also observed that the expression "just and proper" conveyed eminent sense of being in accordance with law and to be proper. It involved all processual and procedural application .of law and included adequate application of substantive provisions thereof. Commonly stated it all took in matters of legality, propriety and correctness of the order. Thus, it is clear that the rule laid down in the referred case has absolutely no application to the facts of the instant cases. Learned counsel has also relied upon Hira Lal v. Ratan Lal (A I R (31) 1944 All. 293) and M.A. Khokhar v. Sh. Manzoor Ahmad and another (N L R 1984 Civil 253). The principles laid down in these cases again have no application to the facts and circumstances of the instant cases. In the referred cases there was sufficient material on the basis of which the cases could be disposed of finally without remanding the same to the trial Court, but in the instant cases this was not possible for the simple reason that the learned trial Court did not decide the applications as warranted by law for the production of certain important documents.

8. The upshot of the above discussion is that the impugned judgments passed by the learned Punjab Labour Appellate Tribunal do not suffer from any jurisdictional defects or from any legal: infirmities. These orders have been passed in accordance with law and on the basis of the evidence produced by the parties. I do not find any legal justification to interfere in these cases. Resultantly these petitions fail and as such, are dismissed leaving the parties to L bear their own costs.

9. Any observation made in this judgment shall not prejudice the decision to be given by the learned trial Court. It shall be open for the learned trial Court to proceed in the case strictly in accordance with law and on the basis of the evidence produced by both the parties. The trial Court is further directed to dispose of the cases within one month positively.

A.A./S‑111/L

Petition dismissed

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