1993 PLP 767 (PLC(CS))

4. The appellant had sent a grievance notice, dated 19‑3‑1988 and followed it up with a petition before the Labour Court.

5. The petition came to be resisted on the ground that the Labour laws were not applicable to the respondent Municipal Committee as it was neither an industrial establishment nor a commercial organisation, but functioned under the supervision and control of the Government of Sindh. Otherwise too the petitioner would not be a workman entitled to take the advantage of the labour laws as he was working in a supervisory capacity. The other contention also came to be controverted.

6. The appellant was his own witness and Mr. Abdul Ghani Khan, the Chairman, appeared on behalf of the respondents.

7. The Labour Court came to the conclusion that the petitioner was a workman. It was also found that if the certificate was not acceptable, "then a specific order to that effect should have been made quoting provision of law by which such certificate was required". Otherwise too the order appointing him had not mentioned that he was under any obligation to produce certificate from the Government Organisation but only an authorised Institution". The petition was, therefore, allowed.

8. An appeal was preferred before the Tribunal and came to be dismissed in limine by my learned predecessor vide order, dated 7‑4‑1990, solely on the ground that it was presented by the; Advocate in the absence of the appellant.

9. This led to the filing of the Constitution petition before the High Court that was allowed and the matter was remanded for disposal by this Tribunal on merit.

10. Mr. M.L. Shahani, learned counsel for the appellant maintained that the provisions of the Labour Laws would not to applicable because of clause (b) of subsection (3). of section 1 of the I.R.O., 1969. A reference was made by him to the case of Controller of Stationery and Forms, Government of Pakistan v. The Registrar of Trade Unions, Sindh and another (PLD 1991 SC 353) wherein it was held, that: "From the above‑cited cases, it is evident that in order to bring an employee within one of the categories excluded by subsection (3) of section 1 of the I.R.O. It is not necessary that the finances or the funds should come from the Government or installations should be under the control and management of a Government department and not under the management and control of a corporate body, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services of installations connected with or incidental to the Armed Forces of Pakistan or in the administration of the State. Keeping in view the functions of the appellant which not only supplies the printing materials to the various organisations relating to the Armed Forces listed at pages 43 and 44 of the paper book, but also caters for the requirements of all the other Government departments and other State organs/functionaries, and which are used inter alia for facilitating communications between the various Armed Forces Establishments and other Government functionaries and without which no Government department can function, it can be concluded that the appellant's employees are covered by clauses (a) and (b) of subsection (3) of section 1 of the I.R.O. It may be pertinent to point out that in the aforesaid clause (b) of subsection (3) the persons employed as workmen by the Railway, Posts, Telegraphs and Telephone Departments have been excluded from. the expression `in the administration of the ‑State' for the purpose of application of the provisions of the I.R.O. It can, therefore, be concluded that the law‑makers wanted to exclude the workmen of the department specified in clause (b) and not other workmen who may be employed in the administration of the State"'. He also referred to Article 7 of the Constitution that reads as under: ‑ "In this para. unless context otherwise requires the State means the Federal Government, Parliament, a Provincial Government, a Provincial Assembly and such local or other Authorities in Pakistan as are by law empowered to impose any tax or cess." and further urged that the Municipality has got the power to levy taxes under sections 59 to 67 of the Sindh Local Government Ordinance, 1979.

11. Mr. Shahani had raised these contentions while Mr. Ahsanul Haq Siddiqui was not present and when later on, argued for his side Mr. Shahani was not there. The contentions which were raised in the appeal, remained un replied.

12. Mr. Ahsanul Haq Siddiqui mainly contended that the provisions of I.R.O. will be available even to the employees of the Municipal Committees all the same and reference was made to the cases of Muhammad Afsar Khan v. Karachi Metropolitan Corporation (1988 PLC 108) and Karachi Metropolitan Corporation v. Mst. Shamsul and 2 others (1986 PLC 349). There are also the cases of Trustees of KPT v. Abdul Ghani (1983 SCMR page 769), Municipal Corporation, Faisalabad v. Nawab Bibi (1992 PLC 398) and others, apart from others where redressal of the grievances had been made under the provisions of the I.R.O. if there was any breach of the Statutory Rules of the Statutory Corporations. However, the view taken in the case of Controller of Stationary and Forms, Government of Pakistan v. The Registrar of Trade Unions. Sindh and another, referred to above and the import of Article 7 of the Constitution need proper consideration. For lack of proper assistance I will therefore leave the matter open for some other occasion.

13. Adverting to the merit, the salient features of the case are, that the appointment of the appellant was made when there was a total ban on the recruitment of the establishment. Though the appellant has been taken the stand that he came to harm because of the machination of Mr. Abdul Ghani, the Chairman, yet the facts present altogether a different picture. The appointment came to be made id spite of the ban on recruitment and when he was to make way under the direction of the Government; he was provided a fresh appointment, and it was left to the appellant to choose between the job of cashier and garden supervisor. He opted for the latter job. The appointment order clearly mentions that he had to produce a certificate of the requisite qualification/experience of these posts. Thus he failed to do and the certificate which he tardily produced did not satisfy the authorities. He was provided a further opportunity to produce a proper certificate from a Government Agency which he failed to do it. He had to quit, due to failure in complying with the condition of his appointment.

14. It is true that he was working as a Lineman but the choice made by him in opting for the job of the garden supervisor was of his free will and volition. He could have challenged this order before the proper forum, but he failed to do so. The order clearly mentioned that he has to produce the requisite certificate and the same was not produced though he was provided ample opportunity. It is also to be seen that on the appellant's own showing though appointed as garden supervisor, he continued to carry on the duties of a Lineman. Patently he was not in a position to cope up with the new responsibilities. The certificate produced by him could not pass muster. If he could not satisfy the authorities and lost the job, it cannot be said that any breach of the Rules of the Municipality was involved.

15. I will, therefore, set aside the impugned order and allow the appeal. H.B.T./2207/Lb.S Appeal allowed.