1993 PLP 287 (PLC)

9. So far as the two cases relied upon by Mr. Obaidur Rehman are concerned, the question for consideration in the said cases was, whether the Collective Bargaining Agent was empowered to make an application on behalf of the workers of Karachi Pipe Mills Limited for enforcement of rights guaranteed to them as provided in section 25‑A of the Ordinance. This Court while dealing with the Constitutional petition filed by the Collective Bargaining Agent held that the application which had been filed under section 34 of the Ordinance by the Collective Bargaining Agent on behalf of the workmen, was not maintainable. The Collective Bargaining Agent being aggrieved by such decision filed a petition for leave to appeal before the Hon'ble Supreme Court which ultimately dismissed the appeal and upheld the order passed by this Court. It was observed by the Supreme Court in this regard as follows:‑‑ "18.????? The learned counsel for the appellants submitted that `if any law' is given restricted meaning then the words `law', `settlement' or `award' become redundant. He argued that there are many laws which confer rights on workers therefore `any law' is a wide word and is used to cover the rights of workers under any law. He stated that `any law' mentioned in section 34 covers all laws. This contention is contrary to the provisions of sections 25‑A and 34 of the Ordinance. In section 34 the expression used is `right guaranteed to it under any law'. As such, there must be specific laws conferring rights on CBA. On the other hand, the language used in section 25‑A is `under any law for the time being in force'. The scope is much wider. It covers all laws which have guaranteed rights to workers. The expression `any law' in two provisions has been used differently."

10. We would like to point out that from the plain reading of section 34 of the industrial Relations Ordinance it is clearly evident that under the said section only a Collective Bargaining Agent or an employer can seek its or his remedy, as the case may be, for enforcement of any right guaranteed or secured to it or him as provided in the said section. The use of the word "it" with reference to the Collective Bargaining Agent and "him" with reference to the employer clearly indicates that only such right can be enforced under the said section by the Labour Court which is guaranteed either to the Collective Bargaining Agent itself or the employer. It is, therefore, clear that the Collective Bargaining Agent cannot espouse the cause of an individual workman by invoking section 34 of the Ordinance. In fact, there appears to be no controversy at all on the point. However, Mr. Ali Amjad, learned counsel for respondent No. 3 has argued that the question cannot be agitated by the petitioner before this Court since the case was remanded by the learned Appellate Tribunal to the learned Labour Court only to give its findings on the issues whether Food Inspectors employed by the petitioner were workmen and whether by reason of their being workmen under the Ordinance the application to them of the Efficiency and Discipline Rules framed by the petitioner was invalid or contrary to law.

11. Both the learned Labour Court and the learned Appellate Tribunal have held that the question as to the maintainability of the application under section 34 of the Ordinance could not be reopened by them in view of the remand order passed by the learned Labour Appellate Tribunal. As can be clearly spelt out from the order passed by the learned Labour Court and the learned Appellate Tribunal dated 3‑1‑1985 and 15‑9‑1988 respectively, the case was specifically remanded for decision on the said issues and the objection raised by the petitioner that the application under section 34 of the Ordinance was not maintainable was not considered by the learned Appellate Tribunal nor it was left to the Labour Court by the learned Tribunal to consider the said objection. Admittedly, the petitioner did not challenge the said decision of the learned Appellate Tribunal and the order passed thereby attained finality. In fact, Mr. Obaidur Rehman did not raise any controversy before us in this regard but his only contention was that the question raised by him related to the jurisdiction of the learned Labour Court and, therefore, notwithstanding the fact that the petitioner had failed to challenge the remand order earlier passed by the learned Labour Appellate Tribunal, the question car be raised by the petitioner in the present petition. We are, however, not inclined to agree with the learned counsel because, as has been observed by the learned Appellate Tribunal in its order dated 15‑9‑1988, the petitioner by failing to challenge the said order itself agreed to submit to the jurisdiction of the learned Labour Court, and therefore, it could not be permitted to raise the issue in regard to the jurisdiction subsequently. In any case, the jurisdiction that we exercise under Article 199 of the Constitution being purely discretionary in character, we would not like to permit the petitioner to regitate an issue which is past and closed. Mr. Ali Amjad, learned counsel for respondent No. 3, has relied upon three decisions in support of his contention that no fresh issue would be permitted to be opened by the Court which is not included in the remand order when the latter has not been challenged before any Court and has attained finality. The first two decisions were given by the Supreme Court and are reported as Government of Balochistan v. Muhammad Safdar (PLD 1982 SC 326) and Khalil Ahmad Kershi v. Noor Muhammad (1986 SCMR 1464) and the third was given by the Lahore High Court which is reported as Fazal Hussain v. Abdul Hamid (PLD 1971 Lahore 89). We do not find it necessary to refer to the facts of each case since prima facie they support the learned counsel's contention and no controversy has been raised in this regard by Mr. Obaidur Rehman, learned counsel for the petitioner.

12. We are, consequently, of the view that since the decision given by the learned Labour Appellate Tribunal remanding the case to the learned Labour Court was not challenged by the petitioner and since the same attained finality, both the learned Labour Court and the learned Appellate Tribunal appear to be justified in declining to once again enter into the question in regard to the maintainability of the application filed by respondent No. 3 before the learned Labour Court.

13. The second contention of Mr. Obaidur Rehman was that both the learned Labour Court and the learned Appellate Tribunal were in error while holding that the Food Inspectors employed by the petitioner were not workmen according to the definition of the term "workman" given in the Ordinance. Section 2 (xxviii) defines "worker" and "workman" as follows:‑‑ "S.(xxviii) `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, 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 supervisory 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 powers? vested in him, functions mainly of managerial nature." As is evident from the above definition, it furnishes negative test for determining whether a person is or is not a workman. Since one of such tests furnished by the section is whether any person employed in an establishment or industry falls within the definition of "employer", and since the said term has been defined in clause (viii) of section 2 of the Ordinance, it is pertinent also to reproduce the said definition. The same is as follows:‑‑ "(viii) `Employer' in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employees workmen in the establishment under a contract of employment and includes‑‑ (a) any heir, successor or assign as the case may be, of such person or body as aforesaid; (b) any person responsible for the management, supervision and control of the establishment; (c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department; (d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority; Special provision‑‑‑For the purpose of distinction from the category of "worker or workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers. (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof;?

14. As is clearly evident from the definition of "workman" just reproduced above, persons not falling within the definition of the term `employer' may fall within the purview of the definition of the term `worker' or `workman'. The said definition further shows that a person who is employed mainly in managerial or administrative capacity or who has been employed in supervisory capacity and also draws wages exceeding Rs.800 per mensem or person who performs functions mainly of managerial nature, is excluded from such definition. The definition of `employer' which has also been reproduced above, further shows that besides any person or a body of persons who or which employs workmen in an establishment or an heir, successor or assign of such person or body of persons, any person responsible for the management, supervision and control of the establishment and the proprietor of an establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof has been included in the definition of "employer" and all such persons, according to the definition of "workman", would be excluded from the purview of the said definition. Consequently, determination of the question whether Food Inspectors fall within the definition of "workman" or not would essentially depend upon the nature of duties performed by them. In this regard, Mr. Obaidur Rehman has taken us through the evidence of Shoukat Raza Khan and Syed Sakhawat Ali who were examined as witnesses on behalf of respondent No.

3. According to the evidence of Shoukat Raza Khan who was himself employed as Food Inspector with the petitioner, Food Inspectors are posted in the Provinces of Sindh and the Punjab at the procurement centres. According to this witness, at the procurement centres the Food Inspectors inspect the quality of rice supplied by the dealers and if the same is found to be below standard, the Food Inspectors are authorised to reject it. Grading of rice quality‑wise is also done at the godowns by the Food Inspectors. The same is, however, done under the supervision of Deputy Manager. The Food Inspectors also analyse samples and determine their fitness for export. The Food Inspectors also personally verify the weight of the bags at the scale for each and every consignment and it is their discretion to check and verify the weight of any of the rice bags. They also issue certificates in regard to weight and quality of the rice. At Karachi, payments are made to handling agents appointed by the petitioner corporation on the basis of work performance certificate issued by the Food Inspector. However, if decision of a Food Inspector as to the quality etc. of the rice is not accepted by the supplier, final decision in this regard would vest with the Deputy Manager Procurement or the Super Inspection Team. More or less similar evidence was given by Syed Sakhawat Ali, the General Secretary of respondent No.

3. He, however, further deposed that such a certificate issued by a Food Inspector required counter?signature of the analyser or any other higher officer and only in such a case payment, if any, would be made on the basis of such certificate.

15. The question, consequently, arises, whether the aforesaid duties which are performed by a Food Inspector can fall within the purview of duties of supervisory, administrative or managerial nature. Although no case‑law hag‑; been cited by any of the learned counsel appearing for the parties which may be called in aid for determination of the question under consideration but "management" has been defined by Black's Law Dictionary, Fourth Edition at page 1112 as under:‑ "Management.‑‑Government, control; superintendence, physical of manual handling or guidance; act of managing by direction or regulation, or administration, as management of family, or of household, or of servants, or of great enterprises, or of great affairs. Branch v. Veterans' Administration. 189 Ark. 662, 74 S.W 2d 800.

804. Discretionary power of direction: J.T. Camp Transfer Co. v. Davenport, 15 Ala. App. 507, 74 SO. 156, 159; Browne v. City of New York, 210 N.Y.S. 786, 795, 125 Misc. 1." The term "manager" has been defined by the said Dictionary at the same page as:‑ "Manager.‑‑One who has charge. of corporation and control of its business or branch establishment, and who is vested with a certain amount of discretion and independent judgment. Braniff v. McPherren, 177 Oki. 292, 58 P.2d 871,

872. A person chosen or appointed to manage, direct, or administer the affairs of another person or of corporation or company, Com. v. Johnson, 144 Pa. 377, 22 A.

703. Also one of the persons appointed on the part of the house of representatives to prosecute impeachments before the senate." The term "manager has also been defined by Ballentine's Law Dictionary, Third Edition at page 770 as follows:‑ "Manager.‑‑One who has the conduct or direction of anything, as the manager of a theatre. Commonwealth v. Johnson 144 Pa. 377,

381. One incharge of the business or operations of another. The officer of a private corporation to which the general business of the corporation is entrusted; in some corporations, the head of one of several departments. 19 Am J2d Corp. S. 1174. The title of an officer of a business trust who is incharge of the business and managing its affairs. 13 Am J2d Bus Tr. S.

44. Description personae as appended to the name of a payee of a bill or note and not destroying negotiability of the instrument. 11 Am J2d B & N S. 115." To supervise, according to the said Dictionary means "to exercise oversight. To keep under inspection." No doubt, the use of the words "managerial", "administrative", or "supervisory" in the definition of the term "workman" clearly indicates that besides a person who has been employed as a Supervisor or a Manager or has been made responsible for the management, administration, supervision or control of the establishment, any other person performing duties or functions of similar nature would be excluded from its purview. But a person, who has not been entrusted with such duties or has not been assigned such functions, in case he does not fall within the purview of the definition of "employer", would fall within the definition of the term "workman". Turning to the functions said to be performed by the Food inspectors, no doubt, they can exercise their discretion in certain matters and can supervise the loading and unloading of rice and have also been vested with powers of analysing the quality of rice and checking of its weight and they can also issue certificates in this regard but such functions by no stretch of imagination can be held to fall within the ambit of the functions either of the "employer" or persons who have been excluded from the definition of the term "workman" by virtue of performing functions mainly of managerial, administrative or supervisory nature. The functions of managerial administrative or supervisory nature would include control, superintendent and management of the establishment or functions of oversight or inspection over others. Vesting of certain amount of discretion in a person performing such functions or exercise of independent judgment by him in respect of the affairs of the management would be some of the essential ingredients of such office. It would include a person to whom general business of the establishment has been entrusted or even the head of one of the seven departments of the establishment, or any other person performing functions of similar nature or exercising some authority over the others. The duties of Food Inspectors do not fall within the ambit of such functions. Consequently, in our opinion, both the learned Appellate Tribunal and the learned Labour Court rightly came to the conclusion that the nature of duties performed by the Food Inspectors did not bring them within the definition of the term "employer" and exclude them from the definition of the term "workman". The second contention of Mr. Obaidur Rehman, therefore, must also fail. So far as the question whether extension of Efficiency and Discipline Rules framed by the petitioner for the Food Inspectors was permissible under the law, in view of the facts and circumstances of the case, we have no hesitation in agreeing with the learned Tribunal below that such rules could not be applied by the employer to persons who were "workmen" and whose terms and conditions were to be governed 'by the relevant Labour Laws. We are, consequently, of the view that the orders passed by the learned Labour Court and the learned Labour Appellate Tribunal respectively are not open to exception.

16. For the aforesaid reasons, this petition was dismissed by the short order passed by us. A.A./R‑231/K????????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.