1987 PLP 430 (PLC)

(iv)That the petitioner's application under section 25‑A of the I.R.O. was time‑barred.

3. Before dilating upon the above contentions of the learned counsel for the parties, it may be pertinent to point out that clause (b) of section 2 of the Baluchistan Civil Servants Act, 1974 (IX of 1974) (hereinafter referred to as the "Act"), while providing the definition of civil servant has expressly excluded, inter alia, a person who is a worker or workman as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, whereas subsection (1) of section 25 of the Act empowers the Government or any person authorised by it in this behalf to frame rules as appear to him to be necessary or expedient for carrying out the purposes of the Act. Furthermore, subsection (2) A of section 1 of the Act provides that the Act applies to the civil servants wherever they may be. The accumulative effect of the above provisions is that if a person is covered by the definition of worker or workman given in the Factories Act or in the Workmen's Compensation Act, the provisions of the Act and the rules framed thereunder for carrying out the purposes of the Act, shall not be applicable. At this stage, we may point out that the submission of Raja M. Afsar, learned counsel appearing for the official respondents that though the petitioner is covered by the definition of worker under the Factories Act, he is not entitled to invoke section 25‑A of the I. R. O., as he was not enforcing any benefits granted under the Factories Act, is untenable. The object of excluding a Government servant from the definition of a civil servant, if he falls within the definition of a worker or workman provided for in the Factories Act or the Workmen's Compensation Act, seems to be to place them at par with the other workers or workmen under the various labour laws and not to confine the benefits under the above two acts.

4. At this stage, it will be appropriate to deal with the question, whether the petitioner is a worker or workman within the definition of Factories Act and the Workmen's Compensation Act, as it has been found by the learned Labour Appellate Tribunal that since his work is of clerical nature, the petitioner is not a worker or workman. As pointed out hereinabove, Raja M. Afsar, learned counsel for the official respondents has conceded to the extent that the petitioner falls within the definition of worker given in clause (h) of section 2 of the Factories Act. However, we are inclined to hold that the petitioner falls within the definition of both the above two Acts. It will be advantageous to reproduce hereinbelow the definition of worker given in clause (h) of section 2 of the Factories Act and clause (n) of section 2 read with sub‑clause (ii) of Schedule‑II to the Workmen's Compensation Act, which read as follows: ‑ Factories Act, 1934 Clause (h) of section 2 ‑‑ "Worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on". Workmen's Compensation Act, 1923 Clause (n) of section 2 ‑‑ "Workman" means any persons other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or "business who is: ‑ (i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890), not permanently employed in any administrative, district or sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii)employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II, Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them." Workmen's Compensation Act, 1923 Sub‑clause (ii) of Schedule II ‑‑ "employed in any premises wherein, or within the precincts whereof, on any day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in clause (g) of section 2 of the Factories Act, 1934 (XXV of 1934), or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used." A plain reading of the abovequoted definitions indicates that under the Factories Act, a person is deemed to be a worker if he is employed directly or through an Agency, whether for wages or not, inter‑alia, in any manufacturing process, or premises used for a manufacturing process, which will include any other kind of work whatsoever incidental to or connected with the subject of the manufacturing process, but excludes any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on. Whereas, under the abovequoted definition of workman given in the Workmen's Compensation Act read with clause (ii) of Schedule‑II to the above Act, a person falls within the definition D of workman, if he is employed in any premises wherein or within the precincts, whereof, on any day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in clause (g) of section 2 of the Factories Act, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used. It may be observed that under clause (g) of section 2 of the Factories Act, "manufacturing process" has been defined as means any process for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a ,view to its use, sale, transport, delivery or disposal etc. It has been held by the learned Labour Appellate Tribunal that the petitioner has failed to prove that he was worker or workman within the definition of either of the above two acts. In this regard, it may be pointed out that it is an admitted position that the petitioner was working as 'Naib‑Katib' in the Press. The duties of a 'Naib‑Katib' or 'Katib' are matter of public knowledge, of which, judicial notice can be taken. A 'Katib' or 'Naib‑Katib' cannot be equated with a clerk working in an office and performing clerical job. The job of a "Katib' or 'Naib‑Katib' is of a technical nature involving expert knowledge of writing on special materials which in turn are printed through machine. His work is an essential part of a printing process. Therefore, in our view, it was not necessary to have led any evidence on the nature of duties, when it is known to everyone what are the duties of a 'Katib' or a 'Naib‑Katib' in a printing press. To re‑enforce the above view, which we are inclined to take, we may point out that not in every case a worker as a general rule is required to produce evidence to prove his duties in order to be a worker or workman under the relevant labour statute. If his duties are matter of public knowledge, he may not lead any evidence on the above point, for example, duties of a vehicle or a railway engine driver are known to the public at large. He is not supposed to lead any evidence on the above aspect in an application under section 25‑A of the I.R.O. In such a case, burden of proof that the driver was not performing his normal duties will be on the person averring the same.

5. Adverting to the contention of Mr. Iftikhar Muhammad, learned counsel for the petitioner that the first proviso to clause(c) of subsection (4) of section 1 of the Ordinance is not attracted to in the instant case as there are no statutory rules in respect of disciplinary matter applicable to workmen working in the Press, it may be observed that in order to exclude the application of the provisions of the Ordinance, it is necessary to show that there are statutory rules of service, conduct or discipline applicable to the workman involved. In the present case, though there are statutory Efficiency and Discipline Rules framed by the Government of Baluchistan, but they are applicable, as pointed out hereinabove, to the civil servants, who are subjected to the Act. There are no separate rules framed by the Provincial Government applicable to the workers or workmen covered by the definition given in the Factories Act and the Workmen's Compensation Act. It must follow that in the absence of any statutory rules pertaining to disciplinary action, the provisions of the Ordinance were applicable to the petitioner. In this regard, it may be pertinent to point out that the Railway Authorities have framed two separate Efficiency and Discipline Rules, one for civil servants and the other for workers or workmen.

6. This leads us to the question, whether the petitioner could have filed an application under section 25‑A of the I. R.O., which provides that a worker may invoke the above provision 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. Even if we were to hold that the provisions of the Ordinance (i.e. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968) were not applicable to the petitioner, it will not follow that he could not, have invoked section 25‑A of the I.R.O. The above section can be invoked for enforcing any right guaranteed or secured to a worker by or under any law, award or settlement as pointed out hereinabove. The expression "any law" ~ has very wide connotation and will include any law even other than the Ordinance. In this regard, reference may be made to the following cases: ‑ (i) Muneer Ahmed and 10 others v. Pakistan International Airlines Corporation Karachi, reported in 1980 P L C 520, in which, the facts were that the Labour Court had dismissed the worker's application on the ground that the Ordinance was not applicable to P.I. A. employees. Upon appeal, the learned Labour Appellate Tribunal, Sind held that a worker can invoke section 25‑A of the I. R. O., if he is enforcing the right or benefits claimed by him under any law. (ii)Sunny Flour Mills v. Muhammad Asghar and 67 others, reported in 1980 P L C 1208. In the above case, the learned Labour Appellate Tribunal, Punjab held that workers can enforce under section 25‑A of the I.R.O. the benefits conferred on them under the Companies Profits (Workers' Participation) Act (XII of 1968). (iii)National Bank of Pakistan v. Qazi Khan Muhammad and 2 others, reported in 1984 P L C 1335, in which, a Division Bench of the Sind High Court, to which one of us (Justice Ajmal Mian) was a Member, held that under section 25‑A of the I. R. O., an employee cannot enforce right of promotion if it is not guaranteed or secured to him under any law or any award or settlement for the time being in force and that a Labour Court or Tribunal could not grant something which was not guaranteed or secured under any law or award or settlement for the time being in force. (iv)United Bank Limited, Sukkur v. 0Munir Ahmed and 2 others, reported in 1984 P L C

276. In the above case, a Division Bench of the Sind High Court, to which, one of us (Justice Ajmal Mian) was a party, held that the rules framed by the Wage Commission cannot be treated at par with the statutory rules framed by an Authority provided under a statute and since no statutory rules in terms of the first proviso to clause (c) of subsection (4) of section 1 of the Ordinance, were framed in relation to the United Bank employees, the provisions of the aforesaid Ordinance were applicable. (v)National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others, reported in P L D 1985 Quetta, 100 in which, a Division Bench of this Court held that since the National Bank of Pakistan had framed statutory rules for providing procedure for disciplinary action, the employee can enforce the same by invoking section 25‑A of the I.R.O. (vi)Divisional Accounts Officer, Pakistan Railways and another v. Farid‑ud‑Din U. D. C. Divisional Accounts Officer, Pakistan Railways, Quetta and 2 others, reported in P L D 1985 Quetta,

234. In the above case, distinction between the Railway employees covered by the Civil Servants Act and those covered by the definition of worker or workman under the Workmen's Compensation Act read with Schedule‑II, was pointed out and it was held that those who were covered by the definition of workman under the aforesaid Act, were entitled to file an application before the Authority under the payment of Wages Act, 1936. The ratio of the above cited cases seems to be that the provisions of the Ordinance are applicable even to a worker or workman working in Government establishment in the absence of any statutory rules providing for the matter in issue and that the expression "any law" employed in clause‑XXVIII of section 2 of the I. R.O. has very wide connotation and the above section can be invoked for enforcing any right guaranteed or secured by any law which will include any labour law or other law pertaining to the person involved.

7. After holding that the petitioner is covered by the definition of worker and workman given in the Factories Act and the Workmen's Compensation Act, it must follow that the petitioner was not subject to the provisions of the Act or the disciplinary rules framed thereunder, and thus the proviso (1) to clause (c) of subsection (4) of section 1 of the Ordinance was not attracted to the instant case, as there are no statutory rules framed by the Provincial Government for disciplinary action against worker or workman covered by the definition of Factories Act and the Workmen's Compensation Act. In this view of the matter, H the finding of the Labour Court that the petitioner had not committed misconduct in terms of clause (e) of para. 3 of Standing Order 15, as 10 days period had not expired on the date of publication of the notice on 12th May, 1984, seems to be correct. Similarly the finding of the Labour Court that the petitioner had submitted a Medical Certificate also seems to be in consonance with the evidence on record, as official respondent's own employee Pervez Ahmed, Despatch Clerk at the relevant time, had supported the petitioner's statement that he had submitted the Medical Certificate with the second leave application. The official respondents had not produced the Despatch Register to negate the statement of the above Despatch Clerk. This aspect has not been dilated upon by the learned Labour Appellate Tribunal.

8. Reverting to Raja M. Afsar's submission that the petitioner's application was time‑barred and, therefore, should have been dismissed, it may be observed that in furtherance of his above submission, he has referred to the following cases: ‑ (i)Mst. Khurshid Begum v. The Settlement Department and others, reported in 1976 S C M R 102, in which, a Division Bench of the Honourable Supreme Court of Pakistan, while declining a review petition held that the "vested rights being acquired by other party, such rights could not be taken away, unless valid ground made out for condonation of delay and each day's delay satisfactorily explained. (ii) Mst. Mah Bibi v. Mst. Hameeda Begum, reported in P L D 1976 Kar.

811. In the above case, a learned Single Judge of the Sind High Court held that delay of each day in filing appeal is to be explained and the negligence of a counsel cannot be a ground for condonation of delay. (iii)Hakim Muhammad Buta and another v. Habib Ahmad and others, reported in P L D 1985 S C 153, in which, a full Bench of the Honourable Supreme Court of Pakistan, held that the High Court could suo motu go into the question of limitation under section 115, C.P.C. though there was waiver on the part of the respondent before the Appellate Court and omission on the part of the Court to decide the above question. In our view, the above cases have no application, inasmuch as the petitioner had filed an application for the condonation of delay, which was allowed. The learned Labour Appellate Tribunal maintained the above condonation for valid reasons, thus, there is concurrent finding of the two competent forums that there were sufficient reasons for the condonation of delay and, therefore, this Court cannot in exercise of Writ Jurisdiction interfere with the above concurrent finding. Furthermore, official respondents have not impugned the above finding by filing a Constitutional Petition. On the contrary, they are defending the two orders for the reasons given therein. In our view, a respondent in a writ petition cannot blow hot and cold in the same breath. It is not open to the official respondents to urge that the finding of the two Courts below on the question of limitation is contrary to law in the absence of filing a writ petition by them.

9. The upshot of the above discussion is that the order of the learned Labour Appellate Tribunal dated 19th July, 1986 seems, to be J not in consonance with law and, therefore, we declare the same as being without lawful authority and of no legal effect and the order of the Labour Court dated 8th November, 1984 is maintained. The petition stands disposed of in the above terms with no orders as to costs. A. A. /258/Q Petition accepted.