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C.P. 2997 2021

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41 views5 pages

C.P. 2997 2021

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truthiseverlasting25
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IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL PETITION NO.2997 OF 2021


(Against the Judgment dated 24.03.2021 passed
by the Islamabad High Court, Islamabad in
W.P.No.3312/2020)

United Bank Limited (UBL) through its President and others


...Petitioners

VERSUS

Jamil Ahmed and others ...Respondents

For the Petitioner: Mr. Umer Abdullah, ASC

For Respondents: Mr. Faridullah, ASC

Date of Hearing: 06.10.2023

JUDGMENT

MUHAMMAD ALI MAZHAR, J. This Civil Petition for leave to appeal is


directed against the Judgment dated 24.03.2021 passed by the
Islamabad High Court, Islamabad (“High Court”) in W.P.No.3312/2020
whereby the Writ Petition filed by the petitioners was dismissed.

2. The transient facts of the case are that vide office order dated
13.12.2012, the services of the respondent No.1 were terminated by the
petitioner’s management and, being aggrieved, the respondent No.1 filed
a Grievance Petition in the Labour Court which was allowed vide
judgment dated 23.01.2017. Consequently, the termination order dated
13.12.2012 was set aside with a further direction to reinstate the
respondent No.1 in service. The petitioners challenged the order of the
Labour Court before the Full bench of the National Industrial Relations
Commission (“NIRC”) through Appeal No.12A(49)/2019-P, but vide
Order dated 11.08.2020, the appeal was dismissed by the Full Bench of
the NIRC. Being aggrieved, the petitioners approached the High Court
C.P.No.2997/2021 -2-

and filed Writ Petition No.3312/2020 and raised various grounds to


assail the findings of the Court recorded below, but the Writ Petition
was also dismissed vide Judgment dated 24.03.2021, hence the
petitioners have filed this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the respondent
No.1 was performing managerial duties, hence the Grievance Petition
under the provision of Industrial Relations Act, 2012 (“IRA”) before the
Labour Court was not competent. He further argued that certain
documents were available for the proper perusal of the Courts below to
verify whether the respondent No.1 was covered within the definition of
‘worker or ‘workman’ or whether he was performing managerial duties
according to his job description.

4. Conversely, the learned counsel for the respondent No.1 fully


supported the judgments rendered by the Courts below and contended
that there are three concurrent findings recorded against the
petitioners, therefore at this juncture the findings of fact recorded in the
Labour Court cannot be reopened. It was further contended by him that
the respondent No.1 was not performing any managerial or supervisory
duties, hence he was covered under the definition of worker or
workman provided under the IRA.

5. Heard the arguments. The bone of contention in the matter relates to


the employment status of the respondent No.1 i.e. whether he was
actually a ‘worker’/’workman’ or he was performing any supervisory or
managerial duties. The letter of termination depicts that the allegation
against the respondent No.1 was unauthorized withdrawals from
customers’ accounts while he was posted as Customer Service
Operation Manager and, subsequently, posted as Branch Manager with
effect from 04.06.2012. An inquiry was conducted into the allegations
mentioned in the charge sheet and the Inquiry Officer found him guilty
of charges, therefore, he was terminated from service.

6. We have also gone through the charge sheet issued by the


management and the reply filed by the respondent No.1 demonstrates
certain admissions made by the respondent No.1 with regard to his
employment status and promotion as Branch Manager. In order to
adjudicate whether a person is performing his duties as a ‘workman’ or
‘worker’, or Manager, Officer and or duties of supervisory nature, the
C.P.No.2997/2021 -3-

pith and substance of the adjudication predominantly depends on the


nature of duties and not on the basis of the nomenclature of the post.
In order to thrash out this controversy, the appropriate appraisal for
assistance can be made by dint of oral and documentary evidence
produced by the parties in the court of first instance. In case the
employee asserts that he was performing duties as workman and such
contentions are opposed by the management, then in such eventuality
the burden of proof lies upon the employee to substantiate that he was
in fact performing the duties of a ‘workman’ and the mere nomenclature
of the post does not affect his status of employment as worker or
workman.

7. Cases in courts are decided on the preponderance of evidence led in


the case by the parties, and in order to reach a just and proper
conclusion, the oral as well as the documentary evidence should have
been considered but we acutely feel that certain documentary evidence
interrelated the status of employment vis-à-vis the admission of the
respondent No.1 were not properly adverted to by the NIRC and the
High Court while deciding the appeal and the Writ Petition.

8. Under Section 59 of the IRA, any person aggrieved by an award or


decision given or a sentence or order determining and certifying a
collective bargaining unit passed by any bench of the Commission, may,
within thirty days of such award, decision, sentence or order prefer an
appeal to the Commission. The Full Bench may confirm, set aside, vary
or modify the decision or sentence passed and shall exercise all the
powers required for the disposal of an appeal. In addition to the above
powers, the Full Bench of the NIRC may, on its own motion, at any
time, call for the record of any case or proceedings under this Act in
which a Bench within its jurisdiction has passed an order for the
purpose of satisfying itself as to the correctness, legality, or propriety of
such order, and may pass such order in relation thereto as it thinks fit,
provided that no order under this section shall be passed on its own
motion revising or modifying any order adversely affecting any person
without giving such person a reasonable opportunity of being heard. In
the case in hand the original proceedings were commenced and decided
in the Labour Court, but due to promulgation of IRA for trans-provincial
organizations/establishments, the appeal filed by the petitioners was
heard by the Full Bench of the NIRC.
C.P.No.2997/2021 -4-

9. It is a well settled exposition of law that a right of appeal is a right of


entering into a superior court and invoking its aid and interposition to
redress the error of the forum below. It is essentially a continuation of
the original proceedings as a vested right of the litigant to avail the
remedy of an appeal provided for appraisal and testing the soundness of
the decisions and proceedings of the courts below. It is always
explicated and elucidated that the right of appeal is not a mere matter
of procedure but is a substantive right. While considering matters in
appeal, the appellate courts may affirm, modify, reverse or vacate the
decision of lower courts. Fundamentally, the remedy of appeal is
elected on the grounds of attack that the court below committed a
serious error in the verdict on law and facts, including the plea of
misreading or non-reading of evidence led by the parties in support of
their contention. It is the duty of the Court and Tribunal to adhere to
the applicable law in letter and spirit. It is the foremost duty of the
appellate court to determine whether the oral and documentary
evidence produced by the parties for and against during the trial
fortifies and adds force to the weight of decision or not. No doubt the
Trial Court possesses the distinctive position to adjudge the
trustworthiness of witnesses and cumulative effect of evidence led in
the lis and, in turn, the appellate court accords deference to the
findings and such findings are not overturned unless found erroneous
or defective. It is not the domain or function of appellate court and/or
High Court to re-weigh or interpret the evidence, but they can examine
whether the impugned judgment or order attains the benchmark of an
unflawed judgment; and whether it is in consonance with the law and
evidence and free from unjust and unfair errors apparent on the face of
record. However, if the concurrent findings recorded by the lower fora
are found to be in violation of law or based on flagrant and obvious
defect floating on the surface of record, then it cannot be treated as
being so sacrosanct or sanctified that it cannot be reversed by the High
Court in the Constitutional jurisdiction vested in it by Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973 as a corrective
measure in order to satisfy and reassure whether the impugned
decision is within the law or not and if it suffers any jurisdictional
defect, in such set of circumstances, the High Court without being
impressed or influenced by the fact that the matter reached the High
Court under Constitutional jurisdiction in pursuit of the concurrent
findings recorded below, can cure and rectify the defect. In the present
C.P.No.2997/2021 -5-

case we reached to the conclusion that the learned Full bench NIRC
and learned High Court disregarded some substantial piece of oral and
documentary evidence vis-à-vis jurisdiction which goes to the roots of
the case that needs to be thrashed out for safe administration of justice.

10. This Civil Petition was fixed for the hearing on 06.10.2023, when it
was converted into an appeal and allowed vide our short order as
under:-

“For reasons to be recorded later, we convert this petition


into appeal and by allowing the same, set aside the
impugned judgment dated 24.03.2021 passed by the
Islamabad High Court, Islamabad and the order dated
11.08.2020 passed by the National Industrial Relation
Commission, Islamabad (NIRC). The matter is remanded
back to the NIRC for deciding the same afresh within a
period of three months after the receipt of certified copy of
this Order.”

Above are the reasons assigned in support of our short order.

Judge

Judge

Islamabad
6th October, 2023
Khalid
Approved for reporting.

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