1988 PLP 125 (PLC)

NASIR ASLAM ZAHID, J.‑‑This judgment will dispose of Constitutional Petitions No. D‑74, D‑75 and D‑76 of 1980. In D‑74/80 the petitioner Muhammad Hafeez was an Assistant Traffic Manager in Sind Road Transport Corporation. In D‑75/80 the petitioner is Muhammad Farid and he was employed in Sind Road Transport Corporation as a Station Superintendent; and in D‑76/80 the petitioner is Ranjhan, who was employed as a Yard Master in Sind Road Transport Corporation. The petitioners' case in three petitions is that they were employees of Sind Road Transport Corporation and after the incorporation of Karachi Road Transport Corporation the petitioners were taken on the strength of Karachi Transport Corporation, that is, they were employed by Karachi Road Transport Corporation with effect from 1‑2‑1977. In April, 1977, the services of the petitioners were purportedly terminated by the Sind Road Transport Corporation. The petitioners sent grievance notices to the Sind Road Transport Corporation taking the position that since the petitioners had been taken on the strength of Karachi Transport Corporation, Sind Road Transport Corporation was not competent to terminate the services of the petitioners. Replies were received from the Secretary Sind Road Transport Corporation by the petitioners that it was not within the knowledge of the Sind Road Transport Corporation that the petitioners had been retained in service by the Karachi Transport Corporation and the letter from Karachi Transport Corporation had been received by Sind Road Transport Corporation after the termination orders had been issued by the Sind Road Transport Corporation. It was further stated that the Sind Road Transport Corporation had no objection if the petitioners were retained by the Karachi Transport Corporation. The Karachi Transport Corporation took the stand that they did not employ or retain the services of the petitioners. According to the petitioners, as the petitioners were the employees of Karachi Transport Corporation and no lawful order had been passed terminating their services, the petitioners still were the employees of the Karachi Transport Corporation. Grievance notices under section 25‑A (1) of IRO 1969 were served by the petitioners upon the Karachi Transport Corporation but as their grievances were not redressed, the petitioners filed separate applications under section 25‑A (4) of the IRO, 1969, against the Karachi Transport Corporation. By a common order dated 3‑4‑1979 the Sind Labour Court No. II allowed the applications and directed that the petitioners be reinstated in service with back benefits. The Karachi Transport Corporation filed appeals before the Sind Labour Appellate Tribunal and the learned Tribunal by order dated 2‑9‑1979 allowed the three appeals on the ground that the petitioners were not workmen under the definition given in section 2(i) of Standing Orders Ordinance, 1968 and they were not the employees of the Karachi Transport Corporation. The order dated 2‑9‑1979 of the Sind Labour Appellate Tribunal is impugned in the present Constitutional petitions. We have heard Mr. Mazhar Ali B. Chohan, learned counsel for the petitioners, and Mr. Mir Raza Hussain Hydri, learned counsel, who has appeared on behalf of the Karachi Transport Corporation. It may be observed here that Sind Road Transport Corporation has not been made a respondent in these petitions.

2. The first question that arises is whether the definition of workman given in section 2(xxviii) of Industrial Relations Ordinance, 1969, is applicable in these cases or the definition of workman given in section 2 (i) of the Standing Orders Ordinance, 1968. A comparison of the two definitions shows that the definition of workman in the Industrial Relations Ordinance, 1969 is more comprehensive and includes more employees as workmen as compared to the definition in section 2(i) of the Standing Orders Ordinance, 1968. It was argued by the learned counsel for the petitioners that the definition of workman in the Industrial Relations Ordinance, 1969, will be applicable to the case of the petitioners. On a question from us, the learned counsel for the petitioners replied that no provision of the Industrial Relations Ordinance, 1969 has been violated there is a violation of Standing Order 12 (3) by the Karachi Transport Corporation. In view of this statement the definition of workman given in the Standing Orders Ordinance, 196,8 will be applicable to the case of the petitioners and not the definition contained in the Industrial Relations Ordinance, 1969. We may in this connection refer to a Division Bench judgment of this Court in the case of Opal. Laboratories Limited v. Moinul Islam, 1983 P L C

509. In this decision all the relevant case law had been discussed by the learned Division Bench, who decided the petition. We have not been persuaded to take a different view than that has been taken in 1983 P L C

509. In our view, the learned Sind Labour Appellate Tribunal was correct in holding that where an employee seeks enforcement of a right guaranteed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the definition of workman in the Ordinance, 1968 is to be followed and not the definition in the Industrial Relations Ordinance, 1969.

3. Section 2(i) of the Standing Orders Ordinance, 1968 defines workman as 4ny person employed .in any commercial or industrial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. The learned Appellate Tribunal has held that the main duties of none of the three petitioners were manual or clerical in nature. The relevant observations of the Tribunal in this regard are reproduced here in below: "Respondent Muhammad Hafeez Siddiqui has admitted in his cross‑examination that some conductors were working under him and that he was competent to make report against conductors, drivers and cleaners. Nowhere has he asserted that his duties involved manual or clerical work or that he was required to do any work which involved substantial physical labour. The word 'labour' in legal parlance has a well defined, understood and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. Through the word 'labour' which appeared in the original definition of 'workman' in the Standing Orders Ordinance has been placed by the more comprehensive word 'work' by Act XXIII of 1973, yet the essential nature of the work which brings an employee within the scope of the definition of 'workman' in the Standing Orders remains substantially the same. As already indicated, there is nothing to indicate that respondent Hafeez Siddiqi's duties involved manual or clerical work. On the other hand, it appears that his work was of supervisory character. Similarly, the nature of duties of the other 2 respondent's namely, Muhammad Fareed and Ranjhan, did not involve manual, or clerical work either skilled or unskilled. Respondent Muhammad Fareed was holding the post of Station Superintendent while Ranjhan was a Yard Master. As Yard Master, Ranjhan was the in charge of the buses and the staff working in the Yard. Similarly, the Station Superintendent was responsible of course under the control of the District Manager, for the Bus Station and its operation. The duties of all the respondents thus were of supervisory nature and did not involve manual or clerical work. It has been held by their Lordships of the Supreme Court in the case of Workers v. Bata Shoes Company, 1971 P L C Page 1, that a Foreman holds a position of supervision and management in a factory and hence cannot be held to be a workman for the purposes of the Industrial Disputes Act, 1947, in which Act the definition of 'workman' is substantially the same as is in the Standing Orders."

4. The findings of the learned Labour Appellate Tribunal that nature of duties of none of the petitioners involved manual or clerical work either skilled or unskilled is supported by the evidence on record. We find no illegality in the finding of the learned Labour Appellate Tribunal that none of the petitioners came within the definition of workman contained in section 2(i) of the Standing Orders Ordinance, 1968. In the circumstances, the grievance petitions filed under section 25‑A (4) of the Industrial Relations Ordinance, 1969, were not maintainable.

5. As regards the other point decided by the learned Labour Appellate Tribunal that the petitioners were not employees of Karachi Transport Corporation, we find substance in the argument of the learned counsel for the petitioners that all the evidence in possession of the Karachi Transport Corporation including the complete lists of employees of Sind Road Transport Corporation which employees had been retained in service by the Karachi Road Transport Corporation had not been produced before the Labour Court. In the circumstances, though we are dismissing these petitions on the ground that the petitioners are not workmen within the definition contained in section 2(i) of the Standing Orders Ordinance, 1968, the claim of the petitioners that they are the employees of Karachi Transport Corporation is not foreclosed by the decision of the Sind Labour Appellate Tribunal and it will be open to the petitioners to raise a plea in competent legal proceedings that they are the employees of Karachi Transport Corporation and in support of which plea they can lead evidence and the decision of the learned Labour Appellate Tribunal and will not come in their way of raising such plea. The competent forum will decide the question whether the petitioners are the employees of the Karachi Transport Corporation or not on the basis of the evidence produced before it and such forum will not be influenced by any observation made or any finding given by the learned Labour Appellate Tribunal in this regard in its order dated 2‑9‑1979.

6. As we have reached the conclusion that the decision of the learned Appellate Tribunal that the petitioners are not workmen within the definition contained in section 2(i) of the Industrial Relations Ordinance, 1969, is correct these Constitutional petitions are dismissed but with no order as to costs. M.Y.H/2541/K Petitions dismissed