TRUSTEES OF THE PORT OF KARACHI Versus MUHAMMAD SALEEM

FAZAL KARIM, J.‑‑‑ The short question that falls for determination in this appeal by leave of this Court is whether the respondent, Muhammad Saleem, who was the employee as carpenter of the appellant, the Trustees of the Port of Karachi and who was dismissed from service by an order of the competent authority, is a worker or workman within the meaning of clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969 (the Ordinance) for the purposes of grievance petition under section 25‑A of that Ordinance. This question has arisen in the following circumstances.

2. On the application of the respondent, the competent authority allowed him leave by its order dated 26‑1‑1977. He did not report for duty after the expiry of his leave. When he did report, he was proceeded against under the K.P.T. Officers and Services (Efficiency and Discipline) Rules made under the Karachi Port Trust Act, 1886 (the Act) and by order of the competent authority dated 26‑4‑1977 was dismissed from service. He appealed under section 23 of the Act but his appeal too was dismissed by an order dated 3‑10‑1978.

3. The respondent then served the appellant with a grievance notice under section 25‑A of the Ordinance. But as that notice did not produce a favourable result, he invoked the provisions of Section 25‑A subsection (4) of the Ordinance and took the matter to the Labour Court. That Court dismissed the respondent's application by its order dated. 2‑7‑1980, among others, on the ground that the respondent was not a worker within the meaning of clause (xxviii) of section 2 of the Ordinance, for he had been dismissed from service and the dispute raised by him was unconnected with an industrial dispute. He unsuccessfully appealed before the Sindh Labour Appellate Tribunal, at Karachi; his appeal was dismissed by that Tribunal's order dated 18‑8‑1980.

4. The respondent then invoked the jurisdiction of the Sindh High Court, Karachi under Article 199 of the Constitution. Relying upon the decision of this Court in the "Trustees of the Port of Karachi v. Abdul Ghani" (1983 SCMR 769), the High Court by its judgment dated 18‑3‑1986, took the view "that there is no provision in the K.P.T. Act, 1886 which can be read to exclude the applicability of the I.R.G. and, therefore, there was no bar against the availability of the remedy provided by section 25‑A of the Ordinance", accepted the petition under Article 199 of the Constitution, set aside the appellant's order terminating the respondent's service as also the order of the Sindh Labour Court and the Sindh Appellate Tribunal and remanded the case to the Labour Court for fresh decision on merits.

5. The appellant sought this Court's leave to appeal and the leave was granted, "to examine the contention advanced by the learned counsel for the appellant that the precise question of law arising for consideration in this case was not finally decided in Abdul Ghani's case on which the reliance has been placed by the High Court" and that "no conclusive opinion was expressed in the precedent judgment on the question whether an employee of the K.P.T. whose service has been terminated otherwise than in connection with an industrial dispute is a workman as defined by the I. R. O."

6. When the appeal came up for hearing, learned counsel for the parties agreed before this Court that "since the precise question for consideration has not received attention of the High Court, the appeal may to allowed and the case may be remanded to the High Court for consideration of that question instead of this Court dealing with the question of law as a Court of first instance". Accordingly the appeal was allowed, the judgment of the High Court dated 18th March, 1986, was set aside and the case was remanded "to the High Court to consider whether respondent, Muhammad Saleem, was a workman/worker within the meaning of section 2(xxviii) of the Industrial Relations Ordinance, 1969". The appeal was disposed of accordingly by this Court's judgment dated 29‑1‑1991.

7. When the matter was again heard by the learned Judges in the High Court, they were content to observe that a Division Bench of that Court had "after thoroughly examining the case of Trustees of K.P.T. v. Abdul Ghani, has held in the case of Zahoor Ahmed v. Trustees of Port Trust, Karachi (1990 PLC 14) that a petition by a dismissed employee of K.P.T., before the Labour Court under section 25‑A of I.R.O. is maintainable and that this question is no more open for argument after the decision of Supreme Court in the case of Trustees of K.P.T. v. Abdul Ghani". The learned Judges, therefore, were of the view "that the opinion expressed by this Court in the case of Zahoor Ahmed v. Trustees of Port Trust, Karachi needs no review". They, therefore, affirmed the decision it, Zahoor Ahmed's case and holding that the grievance petition before the Labour Court was maintainable, set aside the orders of the Labour Court and the Labour Appellate Tribunal and again remanded the case to the Labour Court "for disposal according to law".

8. Section 25‑A of the Ordinance enacts that "a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises". Where a worker himself brings his grievance to the notice of the employer, the employer is to, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. Where a worker brings his grievance to the notice, of his employer through his shop steward or collective bargaining agent, the employer is required within seven days of grievance being brought to his notice to communicate his decision in writing to the shop steward or, as the case may be, the collective bargaining agent. Section 25‑A, by its subsection (4) provides that if the employer fails to communicate a decision within the abovementioned period, or if the worker is dissatisfied with such decision, the worker may take the matter to his collective bargaining agent or the Labour Court.

9. It is plain that in order to avail himself of the statutory right conferred by section 25‑A of the Ordinance a person must be a worker. That expression is defined in clause (xxviii) of section 2 of the Ordinance to mean "any person not falling within the definition of employer who is employed (including employment as a 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 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‑‑

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

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

10. It is upon this definition of the expression "worker" that the question whether the respondent is or is not a worker turns. But as the learned Judges in the High Court did, neither in Zahoor Ahmed's case nor in the impugned judgment dated 29‑1‑1991, address themselves to the question whether the respondent is or is not a worker within the meaning of clause (xxviii) of section 2 of the Ordinance and in reaching the conclusion that they did, namely that the respondent was entitled to make grievance petition under section 25‑A of the Ordinance to the Labour Tribunal, based themselves entirely upon this Court's judgment in Abdul Ghani's case, the first question that must be asked is whether that decision really decided the question that falls for determination in this case.

11. Like the respondent herein; Abdul Ghani respondent in that case was also an employee of the Trustees of Port of Karachi; he was found guilty of misappropriation of property and was dismissed from service after enquiry under the rules made under the Karachi Port Trust Act, 1886. Abdul Ghani did not prefer an appeal under section 23 of the Act but gave a grievance notice. The Labour Court allowed his application under section 25‑A of the Ordinance on the ground that the Inquiry Officer had held him guilty of the charges in regard to which there was no mention in the statement of allegations which could not, therefore, be the subject‑matter of decision. The Trustees of the Port of Karachi challenged the Labour Court's decision by means of a petition under Article 199 of the Constitution. It was argued before the High Court that the Labour Court had no jurisdiction to entertain the petition under section 25‑A of the Ordinance "as that Ordinance did not apply to the employees of the Karachi Port Trust which were governed by the Karachi Port Trust Officers and Servants (Efficiency and Discipline) Rules, 1969, hence no relief could be granted by the Labour Court". The High Court did not express any opinion on this ground "as it was brought to its notice that it was not' even mentioned in the written arguments submitted by the appellant before the Labour Court". It was in these facts that leave to appeal was granted by this Court to consider the question "as to whether in the face of the provision of the special enactment, namely, section 23. of the Karachi Port Trust Act, 1886, the respondent could invoke the provision of the general law, namely, section 25‑A of the Industrial Relations Ordinance, 1969, for seeking the relief against dismissal which was available under the first named section. In other words, the question was whether the provision of the former Act prevailed over the latter Ordinance".

12. It was contended by the appellant's counsel that "by reason of the first proviso to section 1 of the West Pakistan (Standing Orders) Ordinance, 1968, the statutory Rules of Service prevailed over the provisions of that Ordinance in regard to any legal right secured there under and that as the respondent was a dismissed workman, he could not have availed of the provisions of section 25‑A of the Industrial Relations Ordinance which applied only to the case of a workman in employment and not to the former as he was excluded by the definition clause which was worded in the present tense". Another limb of the argument was that a workman could not seek a remedy against his dismissal before the Labour Court unless such dismissal was connected with an industrial dispute. This Court disposed of these contentions with the following observations:

"This much cannot be disputed that provisions of the West Pakistan (Standing Orders) Ordinance are not applicable to the case of the respondent; but as for the other submission that section 25‑A will not be applicable, no such plea was taken in this form either before the Labour Court or before the High Court and leave was also not granted to consider this question."

13. It should be manifestly clear from the above quoted observations that the question whether the respondent could not avail himself of the remedy under section 25‑A of the Ordinance because he was a dismissed employee and his dismissal was not connected with an industrial dispute had been raised, neither before the Labour Court nor before the High Court. It should be equally clear that far from deciding that question this Court did not so much as entertain it. The following observation would, we should think, dispel all doubts on the point:

"In the application before the Labour Court the allegations made by the respondent was that he was a permanent worker which was not denied and as to whether the definition clause ousted a dismissed employee from seeking remedy under section 25‑A it was an open question which required examination at all levels."

15. In holding that a grievance petition under section 25‑A of the Ordinance by a person like the respondent was not barred, the learned Judges who deeded Zahoor Ahmad's case relied entirely upon the following observations in Abdul Ghani case:

"This much, however, is prima facie obvious from section 25‑A that it is available to a workman who has a grievance in respect of any right guaranteed by or ' under any law' which would also include the violation of Service Rules incorporating the settled principles of law that the trial of the case and the evidence should remain confined to the pleadings of the parties and no new case be allowed to be set up in evidence. Here the Inquiry Officer had clearly violated this principle by acting on the statement in respect of an incident which was not the subject‑matter of the charge‑sheet or the statement of allegations and, therefore, his decision was legally erroneous. However, on the question framed for decision section 1(2) excludes in the services which are outside the scope of the provisions of the Industrial Relations Ordinance whereas in effect it extends to the whole of Pakistan and to the other establishments not specifically excluded therein. There is no provision in the Karachi Port Trust Act, 1886, which, can be read to exclude the applicability of the Industrial Relations Ordinance, 1969, and for that matter section 25‑A of the Ordinance, it is true that an appeal is provided under section 23 of the Karachi Port Trust Act, 1886, but there is no apparent bar against the availability of section 25‑A of the Ordinance; and ought it be said that the two remedies are available, side by side, as prima facie the Industrial Relations Ordinance, 1969, by its scope, overreaches an establishment which satisfies the definitions of employer, worker or workman and the establishment. On this view of the matter, it is difficult to accept that the Karachi Port Trust Act is a special Act qua its workmen which are governed by it."

16. These observations were, if it may be said with great respect, an answer to the question to decide which leave was granted namely whether the provisions of section 23 of the Act prevailed over the provisions of section 25‑A of the Ordinance. That was an altogether a different question from the one now under consideration namely whether a dismissed worker, whose dismissal was unrelated to an industrial dispute, continued to be a worker for the purposes of section 25‑A read with clause (xxviii) of section 2 of the Ordinance.

17. Now the justification for the binding character of ratio decidendi, Which doctrine is founded on immemorial practice is "the inconvenience the disastrous inconvenience of having each question subject to being reargued and the dealing of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal". (Lord Halsbury in (1898) AC 375 at 380). It is well settled that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Quinn v. Leathern (1901) AC 495, 506).

18. It appears to have been assumed in the High Court, and it may be said assumed wrongly, and that wrong assumption was also the basis of the arguments before us, that as this Court, in Abdul Ghani case, dismissed the appeal, the question that Abdul Ghani was a worker must be logically taken to have been decided in the affirmative. In that behalf, we can do no better than to cite, and respectfully adopt, the following observations made in "Quinn v. Leathern" (1901 AC 495, 506) to dispose of a similar argument:

".---- case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. "

19. Precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first category of precedent cases. So in order that a decision on a question of law is binding within the meaning of Articles 198 and 201 of the Constitution it is not enough that a legal proposition follows logically from it; that question must have been actually decided.

20. It has been seen that the question whether a person like the respondent herein or Abdul Ghani in the precedent case is or is not a worker turns upon clause (xxviii) of section 2 of the Ordinance. In other words, that question could not be decided in the precedent case without considering that provision and applying it to the facts of that case. However, there is not a word in the judgment in Abdul Ghani case on section 2 (xxviii) of the Ordinance.

21. The inexorable conclusion must, therefore, be that the question whether Abdul Ghani who had been dismissed from service and whose dismissal was not related to an industrial dispute was or was not a worker was not decided in that case and that the question is a question at large'

22. Turning to the facts of this case, the parties were agreed that the respondent was, while he was still in the employment of the appellant, a worker for the purposes of section 25‑A read with clause (xxviii) of section 2 of the Ordinance. There is also no question that the right conferred by section 25‑A is not a common law right; it is a statutory right expressly conferred by section 25‑A of the Ordinance. As in the case of any other statutory right, so here, in order to avail himself of that right, a person must fulfil the necessary conditions precedent to the exercise of that right. One such condition here is that the person who claims that right must be a worker. By clause (xxviii) of section 2 of the Ordinance a worker is a person‑‑

(a) who does not fall within the definition of employer;

(b) is employed in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied. and includes for the purpose of any proceedings under the Ordinance in relation to industrial dispute a person who has been dismissed, discharged, retrenched, laid‑off or otherwise removed from employment in connection with or as a on sequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute. Thus a person who has been dismissed, discharged, retrenched, laid‑off or otherwise removed from employment is not a worker unless his dismissal discharge etc. had connection with or was in consequence of an industrial dispute or whose dismissal, discharge, had led to such a dispute. The words "for the purpose of any proceeding tinder this Ordinance" show also that the definition of the expression 'worker' as contained in clause (xxviii) of section 2 of the Ordinance applies also to the proceedings under section 25‑A of the Ordinance.

23. Here, it was not the case of the respondent before the Labour Court, before Labour Appellate Tribunal, before the High Court or before this Court that his dismissal, discharge etc. was in any way related to an industrial dispute his was, therefore, a case of an individual dispute unrelated to an industrial dispute. We hold, therefore, that the respondent was not a worker for the purposes of section 25‑A read with clause (xxviii) of section 2 of the Ordinance must follow inevitably that he was not entitled to the remedy provided by section 25‑A of the Ordinance and that the Labour Court and the Appellate Labour Tribunal,' were, therefore; right in their view, that, remedy was not, available to him.

24. In the result, the appeal is accepted, the judgment of the High court dated 29‑3‑1992 is set aside and the respondent's petition under Article 199 of the Constitution is dismissed. The parties are left to bear their own costs.

M.B.A./T‑102/S Appeal accepted.