1976 PLP 693 (PLC)

Under the above definition, a 'worker' or a 'workman' must be employed in an 'establishment' or an 'industry' for hire or reward. The term 'establish ment' as given in section 2 (ix) refers us back to the `industry' which is defined in section 2 (xiv) and reads as under :- "'Industry' means, any business, trade, manufacture, calling, service, employment or occupation." The species given above in this definition are distinct and independent and anyone employed in any one of those would answer the requirement of a 'worker' or 'workman'. The scope of this definition is thus very vast and would include the petitioner who admittedly is employed in a 'service' or 'employment'. Thus the first contention of the learned counsel has no force. The respondent is a 'worker' under the Industrial Relations Ordinance and did have the locus standi to invoke the jurisdiction of the Junior Labour Court under section 25-A of the Industrial Relations Ordinance, which reads as under :- "25-A. Redress of individual grievances.-(1) 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 Trade Union, within three months of the day on which cause of such grievance arises. (2) .. . . . . . . . . . . . (3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Trade Union, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward or; as the case may be, the Trade Union. (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Trade Union or the Junior Labour Court, or, as the case may be, the Trade Union may take the matter to the Junior Labour Court, and where the matter is taken to the Junior Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute : Provided that a worker who desires to so take the matter to the Junior Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in sub section (2) or subsection (3), as the case may be. (5) .. . . . . . . . . . . (6) .. . . . . . . . . . . (7) . . . . . . . . . . .

4. The right of the respondent under section 25-A extends to bring his grievance, about the violation 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 first and on failing to get a relief from him, to invoke the jurisdiction of the Junior Labour Court. The pre-requisites to invoke the jurisdiction of the Junior Labour Court are (a) that the applicant is aggrieved of violation of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force, (b) the applicant must first bring that grievance to the notice of his employer. In the case in hand the respondent did not approach the employer though it was an indispensible step to be taken, as is clear from the import of this provision, before invoking the jurisdiction of the Junior Labour Court. It has recently been held in Karachi Shipyards and Engineer ing Works Ltd. v. Second Sind Labour Court (P L D 1975 Kar. 719) that every worker whose services have been terminated is bound to follow the procedure as laid down in section 25-A. In Nasim Silk Industries v. Fifth Sind Labour Court etc. (P L J 1974 Kar. 80) it was laid down that a worker must serve his employer with a notice of his grievance and that an omission to do so on his part disentitles him to invoke the jurisdiction of the Junior Labour Court under section 25-A. The same view was taken in Karachi Development Authority v. Presiding Officer, II Sind Labour Court, Karachi ( P L D 1975 Kar. 716) and Karachi Shipyard & Engineering Works Ltd. v. Second Sind Labour Court. These views do correctly reflect the intent of the Legislature and I respectfully agree with the same. Thus as the proceedings from the very start were bad in law and without any legal basis the impugned order is without lawful authority.

5. The other point is, does the respondent have any right guaranteed or secured to him under any law and has it been violated. The guarantees as contained in the West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance, would apply to the respondent only if he is held to be a 'workman' as defined, in that Ordinance and the petitioner, as 'Industrial or Commercial Establishment' as defined therein. The definitions provide asunder "2(i) 'Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. 2(b) 'commercial establishment' means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and inlcudes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the: purpose of fulfilling a contract with the owner of any commercial establishment or industrial establish ment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishment or class thereof, as Government may by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance." 2(f)'industrial establishment" means- (i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or (ii) a factory as defined in clause (ii) of section 2 of the Factories Act, 1934 (XXV of 1934); or (iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or (iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party; and includes the premises in which, or the site at which, any process connected with such execution is carried on; or (v) the establishment of a person who, directly for indirectly, employs workmen in connection wine any constriction industry." It is to be noted that the petitioner does not answer any of the necessary ingredients of a 'Commercial' or 'Industrial Establishment'. It is a Society registered under the Societies Registration Act and its main function, as given in the judgment of the Labour Court, is to project programme and ideas which should lead to the object of integration of Pakistan. It is further found that there is no profit motive in rendering that service to the community or the nation. The respondent on the other hand is not a `workman' and does not fulfil the qualifications set down for it. Thus neither is the petitioner an 'Industrial' or a 'Commercial Establishment' as given in sections 2(f) and 2(b) respectively nor the respondent a 'workman'. The guarantees and the safeguards as provided in the West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance, therefore, do not apply to him The respondent has not referred to any other law, award or settlement guaranteeing that his services cannot be terminated or if so under some specified conditions. According to his terms of employment brought on record, he was a temporary employee. In this view of the matter, I am constrained to hold that the Labour Court could not give him any relief.

6. The contention of the respondent that his services had been illegally terminated, as he having served for more than 9 months he had become a permanent employee, is also of no avail to him in view of the discussion in para. 5 above. The other plea that he could be ousted from his job only in accordance with the Standing Order 12(3) of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is also covered by the same view as taken above. However, despite my finding given above, Standing Order 12(3) has not been violated for he has been given a written order with the explicit grounds of termination of his services as required in that provision.

7. The grievance of the respondent before me was that the order of termination of his services was mala fide as he had in fact been punished for; participating in Trade Union activities. This ground though taken in the` grounds of application and appeal, appears not to have been agitated before the two Courts below and there is no material in record to scrutinise the allegations even if it was held that the respondent is entitled to the guarantees) as embodied in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The impugned order is also not based on that plea. In any case the allegation might have been a basis for an action under unfair labour practice' if the case was otherwise covered by the relevant provisions of law but it cannot be urged before a Junior Labour Court as held in I E. Saleh v. Messrs International Laboratories Ltd., Karachi and 2 others (P L D 1975 Kar. 279).

8. The learned counsel for the respondent has not referred to me any other right of the respondent under any law or settlement which has been infringed. The learned Labour Court thus had no justification to pass the impugned order which is declared to be without any lawful authority and of no legal effect. The respondent shall pay the costs. Petition allowed.