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Petitioner: MAHMOOD HUSSAIN LARIK and others VS Respondent: MUSLIM COMMERCIAL BANK LIMITED
Court Name: Supreme Court of Pakistan Judge(s): Sarmad Jalal Osmany, Zia Pervez, Sabihuddin Ahmed Title: MAHMOOD HUSSAIN LARIK and others vs MUSLIM COMMERCIAL BANK LIMITED Case No.: Civil Appeals Nos.697, 698 and 699 of 2005 Date of Judgment:2009-03-31 Reported As: 2009 SCMR 857 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' SARMAD JALAL OSMANY, J.--- As common questions of law and fact are in issue in all the aforementioned appeals, hence they are being disposed of through this judgment. 2. Although the parties have a long histories of litigation inter se, however, the facts relevant for the decision of Civil Appeal No,697 of 2005 re: Mahmood Hussain Larik and Civil Appeal No,698 of 2005 re: Muhammad Khan Abro .Are that the appellants were serving as Officers Grade-III with the respondent-Bank. During the course of their service they were proceeded against on the ground of misconduct etc., whereafter an inquiry was constituted in the matter and both were dismissed from service. Against such dismissal order the appellants filed departmental appeals and upon rejection thereof they approached the learned Labour Court through grievance applications. After conducting a detailed inquiry, said Court found that the appellants' dismissal from service was not proper and hence they were reinstated with back-benefits. The learned Labour Court also found that the appellants were workmen and hence they had the right to file grievance applications under section 25-A of the Industrial Relations Ordinance. The respondent-Bank approached the learned High Court which vide impugned judgment reversed the findings of the learned Labour Court on the short ground that they were not workmen and hence not entitled to invoke the learned Labour Court. 3. The facts in Civil Appeal No,699 of 2005, re: Ahmed Ali are slightly different inasmuch as therein the appellant after having been promoted as a Grade-III Officer was proceeded against departmentally whereupon an inquiry was conducted into the matter and he was dismissed from service. The appellant filed a departmental appeal and ultimately approached the learned Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, which vide order, dated 23-6-
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2001 overruled the objection of the respondent-Bank regarding the maintainability of the grievance application as it found that the appellant was a workman, however, the matter was not decided on merits. The respondent-Bank even on such limited findings approached the learned Sindh High Court in Revision Application No,1 of 2003 which was allowed. 4. Mr. M.M. Aqil Awan, learned senior Advocate Supreme Court, appearing for the appellants has firstly addressed the issue of limitation as such objection had been taken by Mr. Mehmood Abdul Ghani, learned senior Advocate Supreme Court, appearing for the respondent-Bank and which has been recorded in the order passed by this Court on 21-12-2006 and 23-10-2008. According to Mr. M.M. Aqil Awan, in labour and service cases the subject-matter of the dispute between the parties can never be quantified in terms of Article 185(2)(d) and (e) of the Constitution. Hence only a leave to appeal is competent in terms of Article 185(3). Secondly, learned senior Advocate Supreme Court submitted that the main .Prayer of the appellants before the learned Labour Court was reinstatement which can never be the subject-matter of the dispute or a claim in property as envisaged by Article 185(2)(d) and (e) of the Constitution calculable in terms of monetary value in the sum of Rs,50,000. For this proposition he has cited State of Bihar v. D.M. Ganguli AIR 1958 Patna 26 and S.M. Rukmani Bai v. Joshi Ram AIR 1950 Allahabad, 242. Alternatively he has submitted that the subject-matter of the dispute means the market value of the property at the time of filing the claim before the relevant Court which admittedly was much less than Rs,50,000 even if the back- benefit of the appellants were taken into account. In this regard he has relied upon Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875. 5. Learned senior Advocate Supreme Court's next contention is that the decision of this Court in Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, is per incuriam since therein the issue whether the subject-matter should be over Rs,50,000 was never considered and conclusion was reached that where the High Court reverses the finding of the Labour Court, then in terms of Article 185 (2)(d) an appeal is only competent. Finally he has argued that even if this Court comes to the conclusion that the aforementioned Article would apply and a direct appeal is competent then filing of a Leave to Appeal Petition can be condoned as a genuine mistake and hence the issue of limitation decided in favour of the appellant. For this proposition he has relied upon Sardar Abdul Rauf Khan v. Land Acquisition Collector 1992 SCMR 1181, Haji Muhammad Saleem v. Khuda Bux PLD 2003 SC 315, Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84; Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371., Mst. Shahnaz Akhtar v. Zarina Chughtai 2004 SCMR 729; Messrs MacDonald Layton Construction Ltd. v. Punjab Employees Social Security Institution PLD 1991 SC 1055 and Sardar Abdul Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164. 6. On the merits of the case Mr. M.M. Aqil Awan, has submitted that the learned High Court in all three cases has erred in law by holding that the burden of proving that they are workmen lay upon the appellants. According to him, in fact it is upon the employer as Standing Order Ordinance, has been amended in 1997 to this effect. Secondly learned senior Advocate Supreme Court, had submitted that sufficient evidence has been placed on the record to establish that the appellants were workmen which was never countered in cross-examination by the respondent-Bank. In this regard he has referred to the case of Mahmood Hussain Larik (Civil Appeal No,697 of 2005) wherein, in his affidavitin-evidence before the learned Labour Court, he has described himself as an Accountant and the nature of his work to maintain ledgers, issuing cheques/pay orders etc., which was purely clerical in nature whereas this factual position has not been countered in his cross-examination. According to learned Advocate Supreme Court, the same is true in the case of other appellants viz. Muhammad Khan Abro and Ahmed Ali vis-a-vis the nature of their respective duties. In support of his submission, learned Advocate Supreme Court has relied upon Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani 1979 SCMR 304, Dost Muhammad Cotton Mills
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v. Muhammad Abdul Ghani PLD 1975 Kar. 342; Allied Bank of Pakistan v. Muhammad Humayun 1988 SCMR 1664; Yousuf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630, Allied Bank v. Abdul Karim 1993 PLC 412, National Bank v. Punjab Labour Court No,7 1992 SCMR 1891 and Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126. 7. Mr. Mehmood Abdul Ghani, learned Advocate Supreme Court, appearing for the respondent- Bank has submitted qua limitation that all the appellants have prayed before the learned Labour Court for reinstatement along with back-benefits. According to him at the time when the applications were filed before the learned Labour Court, the back-benefits of the appellants exceeded Rs,50,000 as all of them were drawing more than Rs,15,000 per month, hence the present cases are covered under Article 185(2)(d) as a learned High Court has set aside the order of the Labour Court. Consequently an appeal as of right was maintainable whereas the appellants filed Leave to Appeal Petitions and hence time-barred. Further learned senior Advocate Supreme Court has asserted that to date no application for condonation of delay has been filed by the appellants and hence the same could not be done on mere oral submission. In support he has relied upon Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875, Messrs Qureshi Salt and Spices Industries, Khushab and others v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353, Mullah Ahmed v. Assistant Commissioner, Sibi and 7 others 1986 SCMR 1624, Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371. Miss Rahat Afroze v. State Life Insurance Corporation and others 2007 PLC (C.S.) 207, (i) Water and Power Development Authority through its Chief Engineer v. Saadullah Khan and others (ii)Water and Power Development Authority through its Director Headquarters v. Syed Zahid Hussain Shah and others 1999 SCMR 319. 8. As to Mr. M.M. Aqil Awan's submission that this Court could convert a petition for Leave to Appeal into an Appeal, Mr. Mehmood Abdul Ghani, has stated that this could not be done while exercising suo motu powers vis-a-vis condonation of delay. For this proposition he has cited Mullah Ahmed v. Assistant Commissioner, Sibi and 7 others 1986 SCMR 1624, Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, Miss Rahat Afroze v. State Life Insurance Corporation and others 2007 PLC (C.S.) 207 and Messrs Qureshi Salt and Spices Industries, Khushab and others v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353. 9. On the merits of the case learned senior Advocate Supreme Court has submitted that the burden of proving the status of a workman is on the person who asserts the same. In the present case, apart from a mere blanket assertion that they were workmen the appellants had not adduced any evidence to support the same. Learned senior Advocate Supreme Court has further submitted that an Officer Grade-III working with the respondent-Bank is not a workman as per the service rules. In support of his submissions he has relied upon Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511, Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488, Ganga R. Madhani v. Standards Bank Ltd. And others 1985 SCMR 1511, Rana Mukhtar Ahmed v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118, Sabir Mehmud Bhatti v. General Manager, Pearl Continental Hotel and another 2001 PLC 689, Akhtar Hussain v. Chairman, Punjab Labour Appellate Tribunal and 3 others 1996 PLC 714, Zubair Ahmed v. Sindh Labour Appellate Tribunal, Karachi and another PLD 1985 Kar. 760, Maqbool Hussain Qureshi v. The Federal Government of Pakistan PLD 1986 FSC 1, Malik Ehtesham-ul-Hassan v. The President, Muslim Commercial Bank Limited (Civil Appeal No,1710 of 2005), National Bank of Pakistan v. Punjab Labour Court No,5, Faisalabad (Civil Appeal No,206 of 1988). 10. In order to appreciate the contentions of both the learned Advocate Supreme Court vis-a-vis limitation, it would be beneficial to reproduce Article 185 of the Constitution, which reads as follows:---
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"185 Appellate jurisdiction of Supreme Court.--- (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court--- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of High Court; or (d) if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of (Majlis-e-Shoora (Parliament)) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court leave to appeal." 11. A bare reading of the aforementioned provisions of the Constitution relevant to the facts of the case at hand would indicate that an appeal would lie to this Court as of right if they are covered under Article 185(2) (d) and (e) for which the limitation is 30 days. Obviously if they were not so covered then leave to appeal has to be sought from this Court in terms of Article 185(3) for which limitation is 60 days per the rules. 12. Upon reading Article 185(2)(d) and (e) it would be seen that essentially Sub-Article (2)(d) contemplates a monetary claim being the subject-matter of the dispute between the parties in the Court of first instance which should at least be in the sum of Rs,50,000 whereas Sub-Article (2)(e) contemplates dispute in respect of property of the same value. Of course in both cases, the further requirement is that the High Court must have set aside or varied the judgment etc. Of the Court immediately below. It would further be seen that such provisions have been borrowed from sections 109 and 110 of the Civil Procedure Code, which previously regulated appeals to this Court from the judgments and decrees of the High Court. Obviously since the Civil Procedure Code essentially dealt with controversies of a civil nature between the litigants the wording of sections 109 and 110 also contemplated civil suits as such. Hence, it would be prudent to conclude that Article 185(2)(d) and (e) are also confined to civil disputes between the litigants respecting money claims or property disputes. In this regard reference can be made to the case of Muhammad Inayat and others v. Fateh Muhammad and others (supra) wherein this Court has held that the expression used in section 109 i,e, the amount of value of the subject-matter of the suit is identical therefore, interpretation of these provisions of the Civil Procedure Code earlier made would be applicable to the relevant clauses (d) and (e) of Article 185 of the Constitution. In that case the controversy was whether the expression subject-matter of the dispute in the Court of first instance meant the valuation fixed in the plaint or the actual market value thereof. After considering a number of cases on this point this Court came to the conclusion that in fact the term subject- matter of the dispute meant the market value of the property. In these circumstances, we are of
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the opinion that cases like the present one involving labour disputes and for that matter service cases, cases arising from the rent jurisdiction or family disputes where the main prayer is of restoration in service, eviction of the tenant on various grounds or dissolution of marriage/custody of minors etc., respectively it cannot be said that any value could be given to the subject-matter of the dispute or for that matter to a claim respecting property, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the Court of first instance and in an appeal. Reference in this regard can also be made to the case of State of Bihar v. D.M. Ganguli and S.M. Rukmani Bai v. Joshi Ram (supra) which are cited by Mr. M.M. Aqil Awan, learned senior Advocate Supreme Court. Insofar as the case of Allied Bank Limited v. Mujeebur Rehman Qazi and others, wherein a Division Bench of this Court has come to the conclusion that in terms of Article 185(2)(e) of the Constitution a direct appeal would lie to this Court as the High Court reversed the judgment of the Sindh Labour Court, we can only observe that the learned Bench was not properly assisted in the matter and hence, the finding therein is per incuriam as the test is two-fold i,e, the subject-matter or property in dispute must be Rs,50,000 or more and the High Court must have set aside or varied the lower Court judgment etc. Consequently, we would hold that no direct appeal as of right could be filed in these matters as the first pre-condition of the subject-matter or property in dispute could not be quantified although the High Court had set aside the order of the Labour Court and hence the appellants correctly filed petitions for leave to appeal which were within time being within 60 days of the impugned orders passed by the learned Sindh High Court. 13. As we have come to the conclusion that petitions for leave to appeal were properly filed by the appellants, we do not deem it necessary to discuss the submission of both the learned Advocates Supreme Court vis-a-vis condonation of delay etc. 14. Coming now to the issue whether or not the appellants were workmen, it would be seen that in the West Pakistan Standing Orders Ordinance, per section 2(i) a workman has been defined as any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or award. Similarly in the Industrial Relations Ordinance, 2002, the definition of a workman/ worker covers any person not following within the definition of employer who is employed including employment as supervisor in an establishment or industry for hire or reward etc. Conversely in said Ordinance an employer in relation to an establishment has been defined to mean any person or body of persons whether corporate or not who is a workman under the establishment under a contract of workmanship and includes inter alia, any person responsible for the management and supervision and control of the establishment. It is settled law that the test to determine whether a person is a workman is the nature of the work done by him and not his designation or title etc. In the present cases, admittedly all the appellants have been designated as Officer Grade-III. In the case of Mehmood Hussain Larik (Civil Appeal No,697 of 2005), he has stated in para.12 of his affidavit-in-evidence that his duties included maintenance of Ledgers, Cheque Books, and Registers, preparation of Pay Orders/Demand Drafts and doing similar clerical work and that he has no powers to hire and fire. However, under cross-examination he has admitted that in the respondent-Bank Officers of Grade I, II and III do managerial and supervisory work. Also that he was the Accountant of the Branch and that in any branch there is one Manager and one Accountant under whom different workers use to work but he did not remember how many workmen were working under him in his branch viz. Kotri. He has admitted that in Shahi Bazar Branch 20 workers were working and in the Market Branch 26 workers were working. In view of such admissions in cross-examination, we are of the opinion that the duties of this appellant Mehmood Hussain Larik, were certainly not manual or clerical in nature. He was the Accountant of the branch and Officer Grade-III and used to supervise a number of workers. Hence, in our opinion, this
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appellant incorrectly approached the learned Labour Tribunal for relief. Consequently, Civil Appeal 697 of 2005 is dismissed. 15. Taking up the case of the appellant Muhammad Khan Abro (Civil Appeal No,698 of 2005), it would be seen that apart from making a bare statement in his affidavit-in-evidence filed before the learned Labour Court that he is a workman, no factual details of the work which he did in the respondent-Bank have been given. However, under cross-examination the appellant has admitted that Officers of Grade-I, II and III were posted in managerial positions in the respondent-Bank. Similarly respondent's officer Muhammad- Rafiq Dossani, in his affidavit-inevidence has stated that this appellant was lastly working in the bank as Officer Grade-III in the Managerial cadre and was not member of any Trade Union or Workmen's Union which is registered with the NIRC. The main and primary duties of this appellant were supervision and control. Under cross-examination this officer has stated that according to Roster of Duties of the appellant he was supposed to deposit targets allotted by the Manager from time to time, cash receipts, transfer stamps and supervise other workers allotted by the Manager/Accountant. Similarly, the other officer of the respondent-Bank who recorded his evidence Ghulam Akbar Memon, has stated in his affidavit-in- evidence that this appellant was not doing any manual or clerical work as his main and primary duty, as this was assigned to the Clerks and Officers Grade-III are posted as Managers in the Branch and they are overall incharge of the Branch. He also performed the functions of signing, paying slips, vouchers, debt vouchers and credit vouchers, collection of transfer bills, Cheque Books as well as Demand Draft etc. Under cross-examination he has been asked no question vis-a-vis the nature of this appellants' work. 16. In view of the foregoing evidence of the record, it cannot be said that this appellant was merely a workman doing any manual or clerical work, consequently, in our opinion his grievance application before learned Labour Court was misconceived, and hence Civil Appeal No,698 of 2005 is also dismissed. 17. Finally taking up the case of appellant Ahmed Ali, in Civil Appeal No,699 of 2005, in his affidavit- in-evidence again only a statement has been made in para.12 thereof that he is a workman and nothing has been stated regarding the nature of his duties. Under cross-examination he has admitted that Officers Grade-I, II and III working with the respondent-Bank were posted as Managers of branches and they had supervisory duties whereas the clerical staff used to do the clerical work assigned to them. Nazir Hussain Channa, an officer of the respondent-Bank has also in his affidavit-in-evidence stated nothing about the nature of the appellant Ahmed Ali's duties. However, under cross-examination he has stated that according to Roster of Duties vis-a-vis the appellant he was supposed to achieve targets allotted by the Manager from time to time and supervise other workers as per the directions of the Manager, etc. He has filed Roster of Duties of the various officers in the relevant branch of the respondent-Bank. 18. In view of the evidence placed on record again it cannot be said that this appellant was only performing manual work as the nature of his duties demonstrate otherwise. Hence, we would again conclude that he is not a workman and the learned Labour Court had no jurisdiction to entertain his application under section 25-A. Consequently, Civil Appeal No,699 of 2005 also fails. 19. As we have come to the conclusion that all the appellants incorrectly, approached the learned Labour Court not being workmen, there is no need to address the merits of the case vis-a-vis their dismissal from service. ' I agree (Sd.) Zia Perwez, J 20. I have recorded a separate dissenting opinion. (Sd.) Sabihuddin Ahmed, J
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' SABIHUDDIN AHMED, J.--- With profoundest respect I find myself unable to subscribe to the conclusions by my learned brother (Sarmad Jalal Osmany, J.) in respect of questions raised and dilated upon in these appeals and I am, therefore, persuaded to record my own views. 22. In the first instance, I find a great deal of force in the contention of Mr. Mehmood Abdul Ghani, learned counsel for the respondents to the effect that the impugned order of the Honourable High Court was liable to be assailed through an appeal as of right under Article 185(2)(e) of the Constitution and not through a petition for leave to appeal under Article 185(3). For the purpose of appreciating the controversy it may be appropriate to keep in view the relevant Constitutional provisions which read as follows:--- (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court--- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the…
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