1978 PLP 436 (PLC)

(b) Chairman, Punjab Planning and Development Board, Government of the Punjab ............ ........ Member. (c) Secretary, Agriculture Department. Government of the Punjab ......... Member. (d) Secretary, Finance Department; Government pf the Punjab ............ Member. (e) Managing Director, Punjab Agricultural Development & Supplies Corporation. (f) Three non-official members to nominated by Government, two of whom shall be from the Chartered Accountant. Under section 19 of the Act, the -Corporation has a fund, which consists of

(a) Grants made by Government; (b) Loans obtained from Government; (c) Loans obtained from the State Bang and Scheduled Banks by the Corporation with the special or general sanction of Government; (d) Foreign aid and loans obtained through Government; (e) all fees received by the Corporation: (f) all other sums received by the Corporation; (g) funds of the supply wing of the defunct West Pakistan Agricultural Development Corporation to the extent such funds are transferred to the Province of the Punjab; (h) sale proceeds by way of disposal of the assets of the Corporation; (i) sale proceeds of agricultural supplies. (j) subsidy received from Government for subsidizing agricultural supplies and; (k) incidentals and commission on providing services.

6. The Board, in discharging its function, is bound under section 4 of the Act, to act on commercial and national consideration, except that it is bound to carry out such directions as the Government may give to it from time to time.

7. According to the learned counsel for the respondents, since the members of the Board were either Civil Servants or persons nominated by the Government, that the funds of the Corporation are mainly provided by the Government, and that the Board has to act in accordance with the directions 'of the Government, the Corporation carried its business by or under the authority of the Government and as such W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable.

8. Before a Full Bench of the Karachi High Court a similar question was raised in the case of National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others (1975 P L C 1) wherein it wag observed: "I now come to the alternate argument of the learned counsel that the Standing Orders Ordinance was not applicable to the petitioner Corporation as it is an Establishment "carried on by or under the authority of the Central Government". That the establishment of the petitioner Corporation is not carried on by the Central Govern ment is not denied by the learned counsel, for what has been urged is that its establishment is being carried on under the authority of the Central Government. The words employed by the Legislature, it may be noted, are not an establishment established by the Central Government or under its authority but one carried on by or under the authority of the Central Government. The learned counsel relied on the facts that the Corporation was established by the Central Government under section 3 of its Ordinance; that its majority Directors including the Chairman, the Managing Director and the Finance Director are to be appointed by the Central Government; that in discharging its functions the Board uader section 8 was to be guided by such instructions on question of policy involving national interest as may be given to it from time to time by the Central Govern ment; that the Corporation's borrowing powers were subject to previous sanction of the Central Government under section 23 and under section 30, the Corporation could be wound up only by an order of the Central Government and in such a manner as the Central Government may direct. It may, at once be noted that under subsection (1) of section 8 the affairs and the business of the Corpora tion is vested in its Board of Directors, which may exercise all powers and do all acts and things which may be exercised or done by the Corporation and the nominee Managing Director of the Central Government under subsection (7) of section 14, was to exercise only such powers and perform such functions as maybe prescribed or delegated to him by the Board. These provisions would show that the Management of *the petitioner Corporation was vested in its Board, which was to carry on its business as a body and the fact, therefore, that majority cf its directors are nominated by the Central Government is of no legal consequence for these persons, namely, the nominated Directors have not individual authority or power to exercise any functions. It is also significant to note that under sub section (3) of section 8 the Bead is only to be guided by instructions from the Central Government and that too only on question of policy involving national interest. From these provisions it is obvious that the establishment of the petitioner Corporation is not being carried on under the authority of the Central Government but on its own authority notwithstanding the restrictions on its borrowing powers or the power vested in the Central Government under section 30 of the Ordinance for winding up. The least that the learned counsel had to show us was that the petitioner-Corporation would have ceased to carry on its business in the absence of exercise of any authority by the Central Government. No doubt the Central Government has reserved for itself certain powers in the functioning of the Corporation but nonetheless the petitioner Corporation will continue to function under its own authority without the exercise of any authority by the Central Government. I am, therefore, unable to agree with the learned Appellate Tribunal that the petitioner Corporation is an establishment carried on under the authority of the Central Government.

8. The above case was followed by a Single Bench of the same High, court in the case, I. C. P. Employees' Front. Karachi through its General Secretary, v. Presiding Officer, Vth Sind Labour Court, Karachi and another (P L D 1976 Kar. 1176). It was a case of Investment Corporation of Pakistan established under a Statute. It was observed therein that the scheme and framework of the Investment Corporation of Pakistan Ordinance ware in part materia with the scheme of National Shipping Corporation Ordinance. It was also observed that the establishment of Investment Corporation of Pakistan was not being carried on under the authority of Central Government, but under its own authority.

10. The learned counsel for the respondent argued that the cases of National Shipping Corporation and Investment Corporation were distinguish able, because in the first case the funds were obtained by floating shares and so the National Shipping Corporation was a Stock Exchange Company, whereas in the second case the funds were borrowed from the Government. He, however, contended that the funds of the respondent Corporation in the instant case were entirely supplied by the Government and, therefore, it was an Establishment carried on under the authority of the Government.

11. It is not true that the entire funds were being supplied by the Government to the respondent Corporation. Even if the entire funds had been supplied by the Government it will not make any difference. In the Investment Corporation's case two cases were cited. The first case is Tamlin v. Hanna food ((1950) 1 K B 19) and the second case is Abdul Rehman-Abdul Ghafur and another v. Mrs. E. Paul arid others (A I R 1963 Bom. 267). In the first case it was hold: "These are great powers but still we cannot regard the Corporation as being his agent, any more than a company is the agent of the share holders, or even of a sole shareholder. In the eye of the law, the Corporation is its own master and is answerable as fully as any other person or Corporation. It is not the Crown and has none of the immunities or privileges of the property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt are public purposes, but it is not a Government Department nor do its powers fall within the province of Government." In the second case it was observed- "'There, the question for consideration, was whether Mazangeon Dock Limited, a commercial Corporation incorporated under the Companies Act, whose share capital was owned by the Central Government of India, would be 'an industry' carried on directly under the authority of the Central Government. It was found that the phrase 'under the authority of the Central 4Governmeat' must mean and was intended to apply to industries carried on directly under the authority of the Central Government. Further, Industries, which were carried on for their own purposes by incorporated commercial Corporation, which were governed by their own constitutions, would not be so, as these corporations sere independent legal entities. and they ran the indus tries for their own purposes. Even when the Central Government controlled these corporations, the industries still worked under the authority of their own constitution or, charters"

12. In both the above cases, the funds belonged-to the Government, but yet it was hold that they were independent. Corporations and were not carrying on under the authority of the Government.

13. In the instant case the Punjab Agricultural Development and Supplies Corporation is an independent Corporation and its Management is under the control of a Board. Although the funds are supplied by the Government even then it is not being carried on under the authority of the A Government. In view of the above W. P. Industrial and Commercial Emp loyment (Standing Orders) Ordinance, 1968 is applicable to the employees of the said Corporation. Legal Objection No. 2.-The question for determination is as to whether the petition is barred under the provision of section 13 of W. P. Shops and Establishment Ordinance, 1969. In my judgment in the case, Mushtaq Ahmad v. M. D. Punjab Agricultural Development and Supplies Corporation, Lahore (1978 P L C 81) I have already held that a Labour Court has jurisdiction to entertain a claim for recovery of wages and as such this legal objection is overruled. Now coming to the merits of the case, the point for consideration is as to whether the respondent can withhold the payment of wages of the appellant on the ground that he has embezzled some amount, belonging to the employer. W. P. Shops and Establishment Ordinance, 1969 is silent on this point. There is no dispute about the claim of the appellant. The respondent's counsel admitted that the appellant was entitled to receive wages for the months of March and April, 1976 and subsistence allowance of 5t) y. of wages for the remaining period tilt the appellant remains under suspension, According to Standing Order 10(1), any wages due to the workman but not paid on the usual pay day on account of their being unclaimed, shall be paid by the employer on an unclaimed wages pay day in each week, which shall be notified on the notice boards as aforesaid. According to Standing Order 10(2), all workmen shall be paid wages on a working day before the expiry of the 7th or 10th day after the last day of the wages period, in respect of which the wages are payable if the total number of workmen employed in the Establishment is 1,000 or less or exceeds 1,000 respectively.

14. From the above it is clear that the wages of the workmen have to be disbursed in any case, whether claimed or unclaimed. According to Standing Order 20. the employer of the Industrial and Commercial Establishment shall personally be held responsible for the proper and faithful observe and of the Standing Orders, whether or not the workman of such establishment are employed through contractors. 1n view of the above, the respondent is duty bound to pay wages and subsistence allowance as prayed for in the memorandum of appeal without any restriction. 15. 1, accordingly, accept the appeal, set aside the decision of the Labour Court to the extent that the respondent shall conclude the enquiry within six months of this order and till then no payment shall be made to the appellant and in case the respondent finds the appellant guilty of the charge of embezzlement the claim of the appellant can be adjusted towards the loss of the respondent and direct that full payment of wages for the months of March and April, 1976 be made std subsistence allowance for the remaining period be also paid to the appellant.