1982 PLP 209 (PLC)

3. I have heard Mr. Muhammad Sharif, the learned counsel for the authority, and Mr. Abdul Majeed, who represented the respondent work man.

4. It is not disputed that the Authority has built and is operating docks, wharves and jetties. One of the main powers of the Authority under section 69 of the Port Qasim Authority Act, 1973, is to regulate, declare and define the wharves, quays, stages, jetties and piers, on and from which goods shall be landed from and shipped in vessels within the Port area. It is also an admitted position that the respondent was employed as a driver by the Authority and that his services were termina ted on or about the 4th August, 1979, and that such termination was not in accordance with the provisions of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The contention of Mr. Muhammad Sharif, however, was that the construction and operation of docks, jetties and wharves is only one of the functions required to be performed by the Authority, and therefore, unless it is established that the respondent was employed in connection with the construction or operation of docks, jetties or wharves he cannot be considered to be a workman for the purposes of the Standing Orders. His contention, in other words, is that the Authority is running several establishments some of which may fall within the definition of "Industrial Establishments" as contained in the Standing Orders, but since the respondent workman was not employed on or in connection with any such establishments he is not entitled to file or maintain a grievance petition against the termination of his services. It was pointed out by this Tribunal in the case of Johnson and Johnson v. Zubair Ahmed (1980 P L C 622), that an employee whose services were termi nated, and such termination was not in connection with or in consequence of or had not led to an Industrial Dispute, was not entitled to file a grievance petition under clause (3) of Standing Order 12 read with section 25‑A, I. R. O., unless he fell within the definition of "workman" as con tained in the Standing Orders. Since it is not disputed that the Authority has constructed and is constructing and also is operating docks, wharves and jetties, which come within the definition of "Industrial Establish ment" as given in the Standing Orders, the crucial question which falls to be considered in the instant case is whether the Authority as a whole is to be considered an industrial establishment for the purposes of the Standing Orders and all its employees who ate engaged to do manual or clerical work for hire or reward are deemed to be work men for the purposes of the Standing Orders. In order to appreciate this proposition it is necessary to examine the purposes for which the Authority has been set up acid the functions which it is required to per form. The Authority has been set up tinder the Port Qasim Authority Act, 1973. The preamble of the said Act reads as follows:‑ "Whereas it is expedient to provide for the establishment of an Authority for making all arrangements for the planning, develop ment and management of Muhammad Bin Qasim Port at Phitti Creek, hereinafter referred to as Port Qasim, and associated faci lities and industries and for matters incidental there to it is hereby enacted as follows:" The main function of the Authority has been specified in section 10 of the Act, which provides that the Authority shall prepare a master‑plan and a phased master‑programme for the development of the Port area and the plan and programme shall be submitted to the Federal Govern ment for approval. Section 11 of the Act specifies in greater detail the functions of the Authority pursuant to the master‑plan and the master programme, which are the preparation by a local body or agency in con sultation with the Authority, of schemes relating to‑‑‑ (a) land use, zoning and land reservation ; (b) public buildings; (c) industry; (d) transportation and communications, highways, roads, streets, railway, aerodromes, jetties, wharves, moorings, navigational aids, sheds, ware‑houses, godowns, navigation channels and workshop; (e) telecommunications, including wireless, television, radio, tele phone ; (f) utilization of water, power and other natural resources ; (g) community planning, housing, slum clearance, amelioration ; (h) community facilities, including water supply, sewerage dis posal, electricity supply, gas supply, and other public utilities ; (i) residential accommodation and welfare facilities for employees of the Authority. (J) environmental control and prevention of pollution." Authority has been conferred by subsection (3) of section 11 of the said Act upon the Federal Government to alter or amend the list of subjects to respect of which schemes may be prepared in consulta tion with the Authority. The other provisions in the said section prohibit any person, local body or agency from preparing, planning or develop ing schemes for a4y part of the port area without the prior approval of the Authority and confer powers of the Authority pursuant to the master plan and master‑programme to prepare such other schemes for the port area as the need for port development and port management may require. The Authority has also been given wide powers under the Act to acquire land in the port area for the purposes of development and operation of the port. It would, thus, appear that the Authority has been charged with the duties of planning, developing and managing the entire port area and preparing or getting prepared different planning or development schemes for the port area. As such, the operational and controlling activities of the Authority extend to practically all matters relating to the operation of the port and are not merely confined or even substantially confined to operations on or in connection with docks, wharves and jetties.

6. As the Authority is required to perform different and multifarious functions, all its units or departments cannot be considered as a sing establishment, at least for the purposes of the Standing Orders in other words, the establishments or the Authority in respect of dock wharves and jetties as also in other establishments which may properly fall within the definition of "industrial establishments" a contained in the Standing Orders must be viewed separately at least as far as the operation of the Standing Orders are concerned from the other establishments of the Authority. In the case of employees working on or in connection with the establishments so specified they would be deemed to be "workmen" for the purposes of the Standing Orders if they are employed mainly to do manual or clerical work but the employee in other establishments, which do not come within the definition of "in dustrial establishments" or "commercial establishments" as contained in the Standing Orders, would not be deemed to be "workmen" for the purposes of the Standing Orders and hence the provisions of the Standing Orders would not be applicable to them. The proposition that an organization may have several establishments or that there may be a establishment within an establishment has ample support of judicial authority. In the case of Muhammad Aqil v. Chairman. Sind Labour Appellate Tribunal (1974 P L C 194), it was observed by a Division Bench of the Karachi High Court that "an employer may have more than one establishment, for example, offices in a commercial area, shops in business area or one or more industrial units in an industrial area and the expression "establishment" would include not the whole of the establishment, of an employer but each of them individually, "No doubt this observation is based upon the definition of "Establishment" as contained in the I. R. O. and the provisions of section 22‑A, I. R. O., but I am inclined to the view that the observa tion is equally applicable to establishments for the purposes of the Standing Orders. According to the Standing Orders a clerical department of a factory or of any industrial or commercial undertaking as also the unit of the joint Stock Company are deemed to be separate establishments In the case of Pakistan Industrial Development Corporation v. Khadim Hussain (1980 P L C 1012), this Tribunal, while holding that the P. I. D. C.'s Tarbela Cotton Textile Mills, N. W. F. P., was a separate establishment from the other establishments of the P: I. D. C., observed as follows. "The mere fact that a company, Individual or association of indi viduals runs or sets up separate establishments at different places or even at one station, would not authorise treating all such establishments to be one establishment, either for the purposes of the Industrial Relations Ordinance or the Standing Orders even if there was a provision for transfer of staff from one establishment to another. This would be all the more so if the different estab lishments were engaged in different types of industries, business or trade. For instance, a common employer may set up a sugar cane industry in Sind, Woollen Mills in the N.‑W. F. P., a biscuit factory at Lahore and food industry at Quetta. Can it be said that all these factories be treated as one establishment either for the purposes of the Industrial Relations Ordinance or the Standing Orders, entitling the workmen of these establishments to bring their grievance applications at their choice either before the Labour Courts, at any of the places where such establishments are located or at the principal place of business of the employer. In my opinion the answer must be in negative."

7. Finally, I would refer to an unreported decision of this Tribunal in the case of Karachi Metropolitan Corporation v. Mst. Nawab Bibi, decided on 25th November, 1980, wherein, while repelling the contention that the Karachi Metropolitan Corporation is an industrial or commercial establishment though it may be operating workshops and other industrial undertakings and even commercial establishments, it was observed as follows;- "An examination of the above definitions makes it clear that the Karachi Metropolitan Corporation, which has been established under the Sind Local Government Ordinance, 1979, is neither a commercial establishment nor an industrial establishment for the purpose of the Standing Orders. The Municipal Corporation has been established for running the local Government and providing civic amenities and services to the people of Karachi. Its func tions, powers and duties are detailed in the aforesaid law. It was submitted by Ch. Rashid Ahmad the learned counsel for the respondent, that inasmuch as the K. M. C. runs and maintains certain workshops and factories it should be deemed to be an industrial establishment for the purposes of the Standing Orders. No doubt the factories and workshops run and maintained by the K. M. C. would be deemed to be industrial establishments, if they fall within the definition of industrial establishment as given in the Standing Orders, but that would not make the Karachi Metro politan Corporation as a whole an industrial establishment nor would the employees not employed in such factories or work shop be entitled to rights of workmen under the ,Standing Orders. Ch. Rashid Ahmed also contended that inasmuch as the Karachi Metropolitan Corporation sells plots and lands, constructs markets, shops, quarters and houses which it sells, leases out on rent, or gives on licence, it should be deemed to be a commercial establishment. He also referred to the functions of the Karachi Metropolitan Corporation in charging fees on hoardings. No doubt these are some of the powers and functions of the Karachi Metropolitan Corporation but they do not make the Karachi Metropolitan Corporation a commercial establishment for the essential functions of the Karachi Metropolitan Corporation as already indicated, are to run local Government in the city of Karachi and to provide civic amenities and services to its people. The performance of these functions does not bring the Karachi Metropolitan Corporation Within the definition of "commercial establishment" as given in the Standing Orders."

8. The respondent workman, admittedly, was employed as a Driver. There is no evidence to show that he was employed in connection with dock, jetties or wharves. Thus, in my opinion, the respondent cannot be considered to be a workman for the purposes of the Standing Orders and would not be entitled to file or maintain a grievance petition under clause (3) of Standing Order 12 read with section 25‑A, I. R. O., 1969.

9. It was, however, contended by Mr. Abdul Majeed, that since the respondent workman was re‑instated in service by the Authority after the decision of the learned Fourth Labour Court, given on 31st March, 1980, which decision has not been challenged by the Authority, the res pondent should be allowed to continue in the service of the Authority even ‑if it is held that the Standing Orders are not applicable to the employment of the respondent. The contention is ingeneous but appears to be without substance. By the remand order, the learned Labour Court was directed to give afresh finding based on any additional evidence which may be led by the parties Furthermore, since the question whether the grievance petition of the respondent. is maintainable goes to the very root of the jurisdiction of the learned Labour Court, this issue cannot be overlooked and can be agitated at any stage.

10. For the foregoing reasons, I would accept the appeal of the Authority and set aside the impugned decision of the Labour Court.