1995 PLP 293 (PLC)

4. In support of these petitions, Mr. SA: Latif, learned counsel for the petitioners has submitted that as the petitioners were declared "employees" under the special provisions of sub‑clause (d) of clause (viii) of section 2 of the industrial Relations Ordinance, 1969, the view taken by the Punjab labour Appellate Tribunal that Industrial Relations Ordinance, 1969 was not applicable to them was not correct. It was further argued by the learned counsel that in any case, as the petitioners were employed in a factory they were workmen within the meaning of section 2(h) of the Factories Act, 1934 and as such the jurisdiction of the Labour Court under the Industrial Relations Ordinance, 1969 could be invoked by them. Reliance was placed by the learned counsel on Sindh Road Transport Corporation and 2 others v. Staff Union and 2 others (1975 PLC 361), Project Director, Cooperative Karkhana Alaat‑e Zari, Bahawalpur v. Presiding Officer, Punjab Labour Court, Multan and 6 others (PLD 1979 BJ 1), Abdul Jamil v. Registrar of Trade Unions, West Pakistan, Lahore and another (PLD 1971 Lah. 220) and Workers' Union v. Sindh Government Press, Karachi and 2 others (1980 PLC 244).

5. Mr. Fazal‑e‑Hussain, learned counsel for the respondent has, on the other hand, argued that those employees of the Pakistan Railways who are not "workmen" are civil servants within the meaning of the Civil Servants Act, 1974 and as such the only competent forum in which they could adjudicate their grievance with regard to the terms and conditions of their service was the Service Tribunal constituted under the Service Tribunals Act, 1974. In this respect that learned counsel has relied upon Faqir Muhammad v. The Director of National Savings, Multan Region, Multan (PLD 1992 SC 127), Muhammad Rashid v. Secretary, Ministry of Defence, Rawalpindi and another (1984 PLC (C.S.) 1511) and Akbar Ali and others v. Senior Administrative. Officer (1992 SCMR 1341).

6. Learned counsel for the petitioners, however, submitted that even a dispute between employers inter se can be taken to a Labour Court by filing an application under section 34 of the Industrial Relations Ordinance, 1969 and, therefore, it is not essential that one of the parties to the dispute should be a workman.

7. The assertion that a dispute between an `employer' and `employee' can be adjudicated upon by the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 may be correct, but it hardly advances the case of the petitioners for the question here is, can the persons working in the Pakistan Railways, whether as employers or employees invoke the Industrial Relations Ordinance, 1969, section 1(3) of which to the extent it is relevant reads that:‑‑ 1(3). It shall not apply to any person employed‑‑ (a) .......................................................................................................................... (b) in the administration of the State other than those employed as workmen by the Railway, Posts, Telegraph and Telephone Departments; or

8. From a bare reading of above, it is obvious that persons employed in the Pakistan Railways cannot have recourse to the Industrial Relations Ordinance, 1969 except those who are workmen. It thus becomes necessary to find out as to whether the petitioners are workmen. Section 2(xxviii) of the Industrial Relations Ordinance, 1969, reads: "`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 in the office or by reason of the powers vested in him, functions mainly of managerial nature."

9. On the own showing of the petitioners they have been declared as employers under the special provision of sub‑clause (d) of clause (viii) of section 2 of Industrial Relations Ordinance, 1969 and are, therefore, clearly outside the purview of this definition. Another reason as to why the petitioners cannot be considered as workmen is that they have been employed in the supervisory capacity and are drawing emoluments of more than Rs.800 per mensem. Even the learned counsel for the petitioners did not claim that the petitioners were workmen within the meaning of Industrial Relations Ordinance, 1969. That being so, as the petitioners are working in the Pakistan Railways and are employed in the administration of State not as workmen, the provisions of Industrial Relations Ordinance, 1969 have no application to them. (See The Controller, Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions Sindh and others (PLD 1991 SC 353) and Akbar Ali and others v. Senior Administrative Officer (1992 SCMR 1341).

10. The learned counsel for the petitioners has contended that if such an interpretation is adopted, it would render section 34 of the Industrial Relations Ordinance, 1969 as nugatory. I am unable to agree with the learned counsel. Section 34 of the Industrial Relations Ordinance, 1969 can be invoked by an `employer' or an `employee' as the case may be except those who are hit by the mischief of section 1(3) of the Industrial Relations Ordinance, 1969.

11. The argument of the learned counsel for the petitioners that they were workmen within the Factories Act, 1934 is hardly of any relevance. The petitioners had invoked the jurisdiction of Labour Court constituted under the Industrial Relations Ordinance, 1969 and as they were not workmen within the meaning of Industrial Relations Ordinance, 1969 and were employed in the Administration of State, the Industrial Relations Ordinance, 1969 had no application and they could not have invoked the jurisdiction of the Labour Court under that Ordinance. In view of what has been stated above, the view taken by the Punjab Labour Appellate Tribunal is perfectly in accord with the law and calls for no interference. All these petitions are dismissed with no order as to costs. AA./J‑93/L Petitions dismissed.