ORDER
SHEET
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Date Order
with signature of Judge
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PRESENT: MR.
JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE MUHAMMAD
JUNAID GHAFFAR
DATE OF HEARING 18.11.2013
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Ms. Sarwar Jehan, Advocate for the Petitioner.
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Syed Hasan Azhar Rizvi J;
Being aggrieved and dissatisfied
with the judgment passed by the Sindh Labor Appellate Tribunal at Karachi in Appeal
No.KAR-1250/2010 (L.A. 227/2007) and order passed on Application No.20/2006
filed under section 46 of I.R.O. 2002 by the Labour Court # 1, Karachi, the
Petitioner filed present Petition.
On 01.06.2004 the petitioner
was employed with the Respondent No.1 as Manager Finance at the monthly salary
of Rs.30,000/-. Petitioner’s services were terminated
verbally on 01.12.2005. He sent grievance notice to the Respondent No.1 on
27.12.2005, which was not replied. Thereafter, petitioner filed grievance
application under section 46 of the IRO 2002 (repealed) before the Labour
Court. Respondent No.1 contested the case, filed written statement and evidence
of the parties were recorded before the Labour Court. Labour Court had given its
findings on the following issues:-
1. Whether the applicant is
a workman/worker for filing the present grievance application, if no, whether
the grievance application of the applicant is not maintainable in law and this
Court has no jurisdiction to decide the grievance application
?
2. Whether the termination
of the applicant from service is illegal, if so, whether he is entitled for
reinstatement in service with or without back benefits?
3. What should the order be?
By a very comprehensive order
Sindh Labour Court No.1, Karachi has held that the Petitioner had failed to
prove him a workman/worker for the purpose of the Standing Orders Ordinance
1968 or even IRO 2002 and dismissed the grievance application. Petitioner
challenged the order of the Labour Court before this Court vide
Labour Appeal No.227/2007. However, case then was transferred to Sindh Labor
Appellate Tribunal at Karachi and the Appeal was renumbered No.KAR-1250/2010.
By the impugned decision the learned Sindh Labor Appellate Tribunal
upheld/maintained the order passed by the Labour Court and dismissed the Appeal
filed by the Petitioner.
Ms. Sarwar Jahan learned
Counsel for the Petitioner contended that the learned Labour Court and Labour
Appellate Tribunal, both have failed to consider the
facts and evidence brought on record and have given their findings on surmises
and conjectures. She further argued that Respondent No.1 had failed to produce any
evidence in respect of hiring and firing power of the Petitioner, although the
Petitioner was designated as Manager Finance having no hiring and firing powers
and was working manually and as a workman, sometime alone and sometime with the
help of some assistant and even the Petitioner was not allowed to approve day
to day petty cash vouchers. She further argued that both the Courts below have
erred in holding that the Petitioner is not a workman and has come under the
ambit of section 46 of the IRO, 2002. Main contention raised by the learned
Counsel for the Petitioner was that the Petitioner was a workman/worker.
We have considered the
arguments advanced by the learned Counsel for the Petitioner and perused the
material available before us carefully.
The term “worker and
workman” has been defined in section 2(xxx) of the Industrial Relations
Ordinance, 2002 in the following words:-
“worker” and “workman” means any
and all persons not falling within the definition of employer who is employed
in an establishment or industry for remuneration or reward either directly or
through a contractor, whether the terms of employment be express or implied,
and for the purpose of any proceeding under this Ordinance in relation to an
industrial dispute includes a person who has been dismissed, discharged,
retrenched, laid-off or otherwise removed from employment in connection with or
as a consequence of that dispute or whose dismissal, discharge, retrenchment,
lay-off or removal has led to that dispute but does not include any person who
is employed mainly in a managerial or administrative capacity”.
Petitioner
during his cross examination before the Labour Court had deposed that :-
“It is correct that Ms. Hina and Mr. Kamran used to work under my
subordination. It is incorrect that I had removed the above said Kamran and Ms.
Hina from the employment. It is correct that they had leveled an allegation
against me by way of making a complaint to the higher authorities of respondent.”
Whereas
the witness of the Respondent No.1 Dr. Farhan Essa Abdullah in his
affidavit-in-evidence stated that :-
“That the applicant was appointed as Finance Manager by the respondent in
his Laboratory on a monthly salary of Rs.30,000.00. The
applicant was head of Finance Department and there were several employees working
from the respondent to hire and fire the workers as such the applicant was not
a workman and therefore, the application filed by the applicant is not
maintainable as this august Tribunal lacks jurisdiction to entertain the
application and is liable to be rejected.”
And witness of Respondent No.1
namely Arshad Hussain in his affidavit-in-evidence stated that:-
“Mr. Muhammad Ali Akhtar joined the respondent in June, 2004 and he
worked as Manager Finance. The applicant was fully authorized to hire and fire
worker on his choice. The respondent had given him full power and authority in
this connection as he was Finance Manager. The applicant had appointed one Sehar
Gul in Accounts Department. I used to work under the applicant in Accounts
Department and alongwith me Mr. Moiz, Mr. Qais and Shakeel Ahmed were appointed
by the applicant at the time and they also worked in the Accounts Department
under him.”
Learned
Counsel for the Petitioner cross examined the witness of Respondent No1 in
respect of the nature of duties and status of the Petitioner as head of the
Finance Department. Evidence adduced by the witnesses of Respondent No.1 before
the Labour Court had gone unchallenged and un-rebutted. It has been established
from the material available on record that the petitioner had
powers to hire and fire in the company
and to make administrative decisions.
In our view findings of facts
recorded by the Sindh Labour Court No.1 at Karachi is in accordance with the
evidence, which was upheld by the Sindh Labour Appellate Tribunal, Karachi. No
misreading or non-reading of any material evidence or any illegality has been
pointed out by the learned Counsel for the Petitioner in the impugned orders of
both the Courts below. Findings of facts recorded by the two forums below do
not call for any interference by this Court in exercise of the jurisdiction
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. We
are not persuaded to hold that the orders/decisions passed by the two forums
below are illegal or without lawful authority.
Above
are the reasons whereby the instant Petition was dismissed in limine by our
short order dated 18.11.2013.
J U
D G E
Karachi
Dated : _______________ J U D G E