1984 PLP 224 (CLC)

(a) Punjab Local Government Ordinance (VI of 1979)‑ ‑‑‑S. 3 (lix)‑Election to Town Committee on workers seat "Worker"‑Commission agent, held, not a "worker."‑[Words and phrases]. (b) Industrial Relations Ordinance (XXIII of 1969) ‑ ‑‑ S. 2 (xxviii)‑Punjab Local Government Ordinance (VI of 1979), S. 3 (lix)‑Election to Town Committee workers seat ‑‑'Commission agent'‑Commission agent, held, is one who sells or buys goods for another and receives by way of remuneration a commission or per centage upon amount involved in each transaction‑Commission agent, held further, not an employee‑Relationship of commission agent and his principal is regulated by agreement or custom or trade practices or by law of contract and by no stretch of imagination this relationship can be equated with relationship which comes into existence between a worker and an employee as envisaged by Indus trial Relations Ordinance, 1969. (c) Punjab Local Government Ordinance (VI of 1979)‑ ‑‑ Ss. 3 (lix) & 11‑Provisional Constitution Order (1 of 1981), Art. 9‑Election‑Town Committee‑Petitioner a commission agent, a self‑employed businessman and not a self‑employed craftsman Paying income‑tax in his independent capacity as commission agent Self‑employment of petitioner as commission agent not falling within definition of term 'worker'‑Nomination papers of petitioner, held, rightly rejected.‑[Words and phrases]. KHALIL‑UR‑REHMAN, J.‑‑The petitioner submitted nomination paper for contesting election to the workers seat of Town Committee Qila Sobha Singh, Tehsil Narowal, District Sialkot. This nomination paper was, how ever, rejected by the Returning Officer, on the 22nd October, 1983 observing that he is an income‑tax payer and is doing business in handmade carpets and as such he is not a workman. This order of the Returning Officer was assailed by filing an appeal but the same was also dismissed by the Appellate Authority vide order, dated the 24th October, 1983. The view taken by the Returning Officer was affirmed by the Appellate Authority. These orders are challenged in this Constitutional petition.

2. The learned counsel has argued that the petitioner as is apparent from certificate Annexure 'B' was employed as commission agent in Messrs Asad Carpet, 68‑Carpet Market, Lahore, and this alleged employment according to the petitioner qualifies the petitioner to be treated as a worker. On l this premises it is argued that the rejection of the nomination paper filed by the petitioner is illegal and arbitrary. The submission made is misconceived. Even the certificate Annexure 'B' relied upon itself stated that the petitioner is doing business in Messrs Asad Carpet, 68‑Carpet Market, Lahore, for about three years as commission agent of carpets (Handmade' only). The petitioner, therefore, cannot claim to be a worker as defined in section 3 (lix) of Punjab Local Government Ordinance, 1979. This definition reads as under : ‑ "Worker" means a worker as defined in the industrial Relations Ordinance' 1969 (XXIII of 1969 including self‑employed craftsmen like blacksmiths, carpenters, tailors and‑shoe‑makers." In view of the above definition reference is necessary to the definition of worker given in Industrial Relations Ordinance, 1969 (XXIII of 1969). The worker as defined in section 2 (xxviii) is as under :‑ "Worker" and "workman" means 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, retren ched, 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 exceed ing rupees eight hundred 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 managerial nature. " In view of these two definitions it is apparent that the petitioner cannot claim that he is employed in an establishment or industry for hire or reward, etc., or that he is a self‑employed craftsman like blacksmiths, carpenters, tailors and shoe‑makers. The petitioner is conducting business with Messrs Asad' Carpet as a commission agent. It may be noted that in trade circles, com mission agent is one who sells or buys goods for another and receives by way of remuneration a commission or percentage upon the amount involved in each transaction. Story defines commission merchant as under :‑ "A factor is commonly said to be an agent employed to sell goods or merchandise, consigned or delivered to him by or for his principal for a compensation commonly called factorage or commission. Hence he is often called a commission‑merchant or consignee and the goods received by him for sale are called a consignment," We may add that the very expression "commission agent" implies that a person working on commission is an agent and not an employee as com monly understood. The relationship of commission agent and his principal is regulated by agreement or custom or trade practices or by law of contract. By no stretch of imagination this relationship can be equated with the relationship which comes into existence between a worker and an employee as envisaged by the Industrial Relations Ordinance. A reference to the definition of the worker contained in the Punjab Local Government Ordinance would show that self‑employed craftsmen like blacksmiths, car penters, tailors and shoe‑makers fall within the purview of the definition by explicitly extending the meaning of the term. The petitioner cannot claim to be a self‑employed craftsman as he is self‑employed businessman. He pays income‑tax in his independent capacity of commission agent. Theta self‑employment of the petitioner as a commission agent does not fall within" the definition of the term `worker and as such his nomination paper was rightly rejected. This petition is, therefore, dismissed in limine. M. Y. H. Petition dismissed.