SHAHZAR KHAN Versus SIND LABOUR COURT NO. 4, KARACHI

1. SALAHUDDIN AHMED, J.‑ This appeal by special leave of this Court is from an order of a learned Single Judge of the High Court of Sind & Baluchistan dismissing the appellant's Constitution Petition.

2. The appellant was employed under respondent No. 3, Sind Alkalis Limited, as Head Chowkidar and Assistant Manager, Security, on a monthly salary of Rs. 350. On the 2nd of November 1972, he was charged with having illegally taken away to his house a gun and a packet of cartridges belonging to the respondent and supplied to the former in connection with his duties. As the result of an inquiry duly held the appellant's services were terminated .on the 19th ‑ of December 1972, by the Personnel Manager under the direction of the Managing Director of respondent No. 3. It appears that the factory was taken over by the Government under President's Order No. 1 of 1972 (Economic Reforms Order, 1972) in January 1972, and it was renamed as Sind Alkalis Limited' (respondent No. 3 herein).

3. The appellant approached the Junior Labour Court No. 5 (respondent No. 2 herein) under section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) (hereinafter called the Ordinance) for re‑instatement, but the application was dismissed on the 26th of July 1973. The appellant was found to be a "workman" and the inquiry against him was found to have been held fairly and impartially. It was; however, held that in view of the provisions of the Economic Reforms Order, 1972, (President's Order No. 1 of 1972) the Court had no jurisdiction to entertain the application.

4. The appellant preferred an appeal before the Sind Labour Court No. 4 (respondent No. 1 herein), but it was dismissed on the ground that the appellant was not a "workman" within the meaning of the Ordinance. It was, however, held that the jurisdiction of the Labour Court was not barred under the Economic Reforms Ordinance, 1972.

5. The appellant approached the High Court on a Constitution petition and it was dismissed on the ground that the appellant was not a "workman".

6. It may be stated here that except, the Junior Labour Court, no other Court proceeded to consider the dismissal of the appellant on merit.

7. Before we proceed to consider the question whether the appellant is a "workman" within the meaning of the Ordinance, we may point out that the finding of the High Court is, indeed, curious, for all the reasons that precede the finding indicate that the appellant is a workman".

8. "Worker" and "workman" have been defined thus in section 2 (xxviii) of the Industrial Relations Ordinance, 1969, as it stood on the relevant date :‑‑

9. "(xxviii) `worker' and `workman' mean any person not falling within the definition of employer who is employed (including employment as it supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any pro ceedings 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

(a) who is employed mainly in a managerial or administrative capacity, or

(b) who, being employed in a supervisory capacity; draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

10. Explanation.‑--`Supervisor' means a worker immediately above the lowest level of workers‑in an establishment or industry who has super visory duties but no power to engage or remove, take any other disciplinary action against another worker by his own authority."

11. It may be mentioned that the words "as a supervisor" and the Explana tion were added in section 2(xxviii) of the Ordinance by Ordinance IX of 1972 promulgated on the 13th of April 1972. The Explanation was subsequently dropped by Act 29 of 1973 on the 9th of February 1973. This omission, however, does not affect the case of the appellant for his services were terminated at a time when the Explanation was still there.

12. "Employer" has been defined in section 2(viii) of the Ordinance in the following manner:-

13. "2(viii) `employer', in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑

(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid ;

(b) any person responsible for the management, supervision and control of the establishment ;

(c) in relation to an establishment run by or under the authority of any department of the Central. Government or Provincial Government, the authority appointed in this behalf or, where no authority is so appoint ed, the Head of the Department ;

(d) in relation to an establishment run by, or on behalf of a local authority; the officer appointed in this behalf, or, where no officer is so appointed, the chief executive officer of that authority ;

14. Special provision.‑---For the purposes of distinction from the category of `workers' or `workmen', officers and employees of a Department of the Central Government or a Provincial Government or a local authority who belong to the superior managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employer' ;

(e) in relation to any other establishment, the proprietor of such establish ment and every director, manager, secretary, agent or other officer or person concerned with the management of the affairs thereof."‑

15. Upon the admitted nature of the duties of the appellant he does not fall within the definition of employer. It is the consistent case of both the parties that the appellant besides working as a chowkidar also supervised three other chowkidars. His salary as has been noticed already was Rs. 350 per month. In terms of the aforesaid definition of `workmen', the appellant is clearly a `workman'. Any doubt previously held about this position was removed by the introduction of "Explanation" under Ordinance IX of 1972. However, even before the addition of the Explanation this Court in Civil Appeal No. K‑6 of 1968 (Organization of Karachi Port Trust Workers v. Karachi Port Trust, etc.), decided on the 19th of January 1970, had held that `chowkidars' and `havildars' in the Watch and Ward Department of the Karachi Port Trust were `workmen' within the definition given in section 2(n) of the Industrial Disputes Ordinance, 1959, which was as follows :‑--

16. " `Workman' means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward, and includes etc."

17. This Court observed as follows in the said Civil Appeal :‑‑

18. "The latest Ordinance on the subject, namely, the Industrial Relations Ordinance of 1969 (XXIII of 1969) has resolved all doubt, on the point. `Workmen' as per definition contained in section 2(xxviii) of this Ordinance, cover all employees of an industrial establishment, what ever the nature of their duties, and include employees who have been discharged in connection with an industrial dispute or whose discharge has led to that dispute."

19. The learned Single Judge of the High Court seems to have misconceived the law applicable to the facts of the present case inasmuch as he applied West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, instead of the Industrial Relations Ordinance, 1969. It is due to this misconception that the learned Judge proceeded to consider whether the appellant was doing any manual or clerical work. No such words appear in the definition of "workman" as given in section 2, clause (xxviii) of the Ordinance.

20. It has also been contended on behalf of the appellant that as neither the Sind Labour Court No. 4, nor the High Court considered the case on merit, it should be remanded for consideration on merits. Perhaps this would have been the appropriate course. In view, however, of the fact that the appellant in his reply categorically admitted the allegations against him but pleaded that to err was human and he should, therefore, be excused, a remand of the; case is not called for, and it is not in the interest of justice. The Junior Labour Court found that the inquiry was fair and impartial, and this finding has not been set aside. We do not find that there is any reasonable ground to interfere with this finding. No contravention of any principles of natural justice has been alleged.

21. The appeal is accordingly dismissed with no order as to costs. The result is that: the services of the appellant stand legally terminated and he is not entitled to any relief under section 25‑A of the Industrial Relations Ordinance, 1969.

22. Appeal dismissed.