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Constitutional Petition No. 806 of 1975, decided on 31st March, 1979.

S. 25‑A(1)‑Grievance notice‑Service upon employer‑Manda tory before filing petition before Labour Court‑Service of grievance notice held, mandatory even prior to repeal of subsection (6) of S. 25‑A‑‑[P L D 1976 Lah. 1176 dissented from].

P L D 1976 Loh. 1176 dissented from.

P L J 1975 Kar. 304 ; P L D 1977 Kar. 166 : P L J 1975 Kar. 303 and 1977 P L C 489 Tel.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S. 2 (i) and S.O 12 and Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑Grievance petition against termination of service Right sought to be enforced given in S. O. 12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968‑Petitioner essentially required to be covered by definition of workman in S. 2 (i) of that Ordinance‑View that an employee if not covered by definition of employer must be regard ed as a "workman"‑Rejected‑Assistant Security Officer not doing skilled or unskilled, manual or clerical work but looking after whole establishment as far as security side was concerned and supervising security staff‑Held : not covered by definition of work man.

1977 P L C 640 ; P L D 1975 Kar. 342 ; P L J 1965 Kar. 59 ; 1977 P L C 640 ; P L D 1978 Kar. 649 and 1975 P L C 147 ref.

----S. 2 (xxviii) (a) & (b) "Workman"‑Definition of‑Word "or" used in between words mensem" and "performs" in clause (b) conveys a disjunctive sense and cannot be read as "and" Contention that clause (b) should be read is such a manner that in order to exclude an employee from definition of "workman" a person who is working in supervisory capacity and gets wages. of Rs. 8U0 or more he should also be performing duties and functions mainly of managerial nature‑Rejected‑Categories of employees excluded from definition of workman, (1) those employed mainly in managerial capacity, (2) those employed mainly in an administrative capacity, (3) those being employed in supervisory capacity getting wages exceeding Rs. 800 per month, and (4) those performing either because of nature of duties attached to the office or by reason of powers vested in them functions of mainly a managerial nature Assistant Security Officer‑Performing supervisory functions and duties‑Getting wages above Rs. 800 per month‑Excluded from definition of workmen.

M.L. Shahani for Petitioner.

A.A. Shareef with Latifur Rahman Khan Serwari for Respondents.

Dates of hearing : 3rd, 6th and 7th March, 1979.

This is a Constitutional petition challenging the orders passed by Sind Labour Court on 4th June, 1975 and the orders passed by Junior Labour Court on 12th May, 1975 dismissing prayer of petitioner Abdul Sattar for re‑instatement.

2. The relevant facts are that the petitioner was a permanent em ployee of the respondent and was drawing a salary of Rs. 850 per month, on 24th Septemer, 1974 when his serivices were terminated. At the rele vant time the petitioner was designated as the Assistant Security Officer. The petitioner did not give grievance notice to the respondent under section 25‑A (1), but filed a direct petition for re‑instatement under section 25‑A of I.R.O. before the Junior Labour Court. The respondent filed their reply and took preliminary legal objections and evidence was recorded for appellant as well as respondent but the application was dismissed and the appeal therefore was also dismissed. The Junior Labour Court dis missed the application on the preliminary ground that the application was incompetent in view of the fact that grievance notice had not been served by the petitioner upon respondent before filing the application. The Labour Court took into consideration both the objections via. the lack of grievance notice as well as the plea of the respondent that the petitioner was Head of the Department was not covered by the definition of the workman and dismissed the appeal and hence this petition.

3. Mr. M.L. Shabani, learned counsel for the petitioner and Mr. A.A. Shareef, learned counsel for the respondent assisted by Mr. Latif Sarwari addressed the arguments. Mr. Shahani's contention is that the view taken by the Labour Court that grievance notice was mandatory before an application under section 25‑A could be filed is incorrect. He says that subsection (6) of section 25‑A of the Ordinance was in existence at that time and the same had allowed the filing of application direct before the Junior Labour Court without giving a grievance notice. He has relied upon the judgment of a Single Judge of a Lahore High Court reported in P L D 1976 Lah. 1176. On the other hand Mr. Shareef has relied upon three decisions from Karachi where several Judges of the High Court individually took the view that subsection (6) of section 25‑A did not dispense with the grievance notice as the grievance notice as required under section 25‑A (1) of 1. R, O. those judgments are reported in P L J 1975 Kar. 304, P L D 1977 Kar. 166, P L J 1975 Kar. 303. In P L J 1974 Kar. 80 same view was taken. Mr. Shareef has also pointed out that sub section (6) of section 25‑A of the I.R.O. has been completely repealed in 1977, and therefore, the intention of the Legislature has further become clear that sending of grievance notice to the employer was mandatory, as required under section 25‑A(1) of the I.R.O. I agree with the submissions of Mr. Shareef and in view of the decisions of our own High Court 1 can not adopt the view of the Lahore High Court. 1, therefore, reject this contention of the petitioner.

4. Mr. Shahani has argued with a great deal of vehemence that the findings of the Labour Court that the petitioner was not a workman has been arrived at without taking into consideration all the relevant facts and he says that only part of the deposition of the petitioner has been con sidered, the rest of the deposition had been left out of consideration. He particularly points out two passages of the affidavit of the petitioner filed before the Junior Labour Court where the petitioner has stated in para. 3 that most of the time he performed his duty on checking and preventing any untoward incident that may cause harm to hotel reputation. He further stated in para. 5 that he did not perform security job independently, as the Resident Manager was also the Chief Security Officer, and that he did not state that he was the Head of the Department while the Labour Court had so inferred. And, lastly in para. 12 of the affidavit he stated that he was only a title head in name, but vested with no powers of management. And further he has stated that be had neither an office of his own nor even a chair and table and that he preformed duty with other Security Staff on foot. Mr. Shahani, therefore, contended that the Labour Court was wrong in saying that petitioner did not disclose what kind of manual labour be was doing or that the petitioner did not adduce any evidence with regard to the duties performed by him. 1, however, find that there is good deal of material which has come on record in the shape of the affidavit and depositions from the respondent supported by relevant documents and that there is sufficient material on record to justify the inference that the learned Labour Court has drawn in respect of petitioner not being a workman, although, the Labour Court has not specifically referred to the same. It is the overall view of the evidence which learned Labour Court has taken from the evidence and the documents and even in his cross‑examination the petitioner has admitted that he was Assistant Security Officer and he was not punching time card like the workman do and that he prepared the duty Roster and time‑sheet of the security depart ment and that he has granted leave application of some workmen and recommended the leave of some others, he also admitted that instructions were issued by him to all parking attendants/doormen. Documents were also signed by him in there respects and they are signed by him as Head of the Department. He has also admitted having signed as Head of the Department recommending the increments of security staff and also reviewed the appraisal of the performance of different members of the Security Staff's and gave his own independent view in respect thereof. All those documents have been submitted by the respondent and shown to petitioner and the petitioner had to admit the same. His explanation of course was that he had done so under the instruction of the Resident Manager. However, the fact is that he has acted as Head of the Depart ment and had exercised administrative powers in respect of his Depart ment and the mere fact that the Resident Manager was the Chief Security Officer does not detract from the effect of the various actions that he took as the acting Head of the Department which is convincingly proved by the documents above referred.

5. In any case, it is not a case of finding having been reached with out any material, so that it can be vitiated. In 1977 P L C 640 it was held that a finding of fact by Courts below that petitioner was not a work man, if properly supported by material on record, is not a finding which could be stated to be without a lawful authority. I am in respectful agreement with this view. In any case, even if. The Labour Court did not specifically refer to the various documents which are on the record they can still be taken into consideration in order to scrutinize whether the finding is justified on record or not Mr. Shahani referred to various authorities in respect of his contention that the petitioner was a workman. He referred to unreported decision of C. P. No. 3 of 1976 decided on 3rd October, 1978 by my learned brother Mr. Mushtaq Ali Kazi, J. where he held that in order to treat an employee as an employer he should be responsible to the owner of the establishment and there should be no link in between. In that case a Shift Incharge of a Textile Mills having 50 workers under his control was not held to be an employer, as he could not be said to control the whole establishment as he was working under Weaving Master, Mr. Shahani also relied upon P L D 1975 Kar. 342 were my learned brother A. H. Kureshi held that Chief Accountant whose salary was about Rs. 1,100 was a workman. He also observed either a person is a workman or he is an employer in the two definitions of the employer and workman as given in the Standing Orders Ordinance, 1968. But Mr. Shareef pointed out that the same learned Judge in P L J 1975 Kar. 59 while considering a case under Standing Orders Ordinance, 1968 had held that a salesman although an employee was not a workman, therefore, an employee need not necessarily be either a work man or an employer. Mr. Shareef has also relied upon 1977 P L C 640 wherL Project Engineer of R. C. D. Ball Bearing was not held to be a workman under section 2 (xxviii) of I. R. O. by my learned brother Agha Ali Hyder, J. In the same case the learned Judge had noted that the case of Dost Muhammad Cotton Mills had been explained by the Supreme Court in C. P. S. L. A. K‑145/76 where their Lordships of the Supreme Court observed that case did not support the view that a person is a workman merely because he may be working under some one else. Mr. Shareef also relied upon P L D 1978 Kar. 649 where in a D. B. judgment Mr. Justice Fakhruddin G. Ibrahim had observed that incharge of a part of establishment is not a workman under Industrial Relations Ordinance. In 1975 P L C 147 (Retd.) Mr. Justice Inamullah as an Appellate Tribunal had held that the Administrative Officer of a Branch having no authority to fire and hire was not regarded as a workman under 1. R. O. 1969. I may note here, the definition of a workman as given under Standing Orders Ordinance, 1968 in section 2 (1) :‑

"Workman" means any person employed in Industrial and Commercial Establishment to do any skilled or unskilled, manual or clerical work for hire and reward.

The definition of the employer given in section 2 (c) (iii) in substance is the owner of the Commercial and Industrial Establishment who employs workmen in the establishment under a contract and includes (i) (not applicable) (ii) (not applicable) (iii) in any other industrial or commercial establishment any person responsible to the owner for the supervision and control of such establishment. Mr. Shahani states that the petitioner was not directly responsible to the owner for the supervision and he was not controlling the establishment of later‑Continental Hotel and hence he could not be regarded as employer, and since he was not an employer, therefore, he had to be regarded as a workman. I am afraid that I cannot accept the conclusion that an employee working in an establishment must be regarded as a workman, if he is not covered by the definition of employer in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. If that were so, it was no us giving the definition of workman in that Ordinance. Since, the Legislature decided to give the definition of a workman, therefore, we have to consider the same first and the definition of the employer can only be looked into for the purposes of comparison. The Legislature has in its own wisdom given the benefit of the provisions of the Standing Orders Ordinance only to that specified type of worker of an establishment, who were doing a specified type of work and were covered by the definition of workmen, as given in that Ordinance and not to all employees. Since Mr. Justice A. H. Kureshi had held in P L J 1975 Kar. 59 that a salesman is not a workman under the definition of workman' given in section 2 (i) of Standing Orders Ordinance, therefore, I feel, it is this definition of workmen' which is important to consider and the case of the petitioner could hardly be covered by this definition as he was not doing either any skilled or unskilled, manual or clerical work. He was mostly doing the work of supervision of the security staff and he had himself stated that he was responsible for the checking and preventing untoward incident that may cause harm to hotel reputation which shows that he was looking after the whole establishment as far as the security side was concerned an was, therefore, supervising work of the entire security staff including doormen and for doing that supervision he bad to move about but that would not bring his duties within the definition of manual work.

6. Since the right of the petitioner was given in Standing Order 12, therefore, it was necessary for the petitioner to bring himself within the definition of a workman under the Standing Orders Ordinance. an as I have held that the Labour Court was justified in holding that the petitioner was not covered under that definition, therefore, it may no be necessary to refer to the lengthy arguments advanced by the counsel in respect of the definition if workman' and employer' as given I.R.O under sections 2(xxviii) and 2(viii) respectively. But since the counsel had addressed me at length in respect of these definitions may notice the same in substance. In section 2(xxviii) of I.R.O. workmen is defined as under :‑

"Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment [as a supervisor car] 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 by reason of the powers vested in him functions mainly of managerial nature.

The relevant provision for the purpose of the present arguments are clauses A and B of this subsection. 'Employer' is defiined in section 2(viii) of I.O.R. as under:‑

"Employer," in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑ .

(a) an 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 authority of any department of the (Federal Government) or Provincial Govern ment, 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 being 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 (***)

7. The relevant provision is clause (e). The contention .of Mr. Shahani is that the definition of an employer in section 2 (vvi) although quite wide but is still restricted to those persons who are concerned with the management or affairs of the establishment and the same refers as establishment as a whole and the management should also refer to the whole of the establishment of the hotel and not to management of a part of the establishment like a security Department. While in respect of workmen he states that the entire set of employees who are employed for hire or reward have been declared to be workmen by section 2 (xxviii) of I.R.O. and it is only those persons who are either covered by the definition of employer under section 2 (viii) or excluded by the clauses A and B of section 2(xxviii) who are to be included from the definition of the workmen. Mr. Shareef has based his case upon clause B of section 2 (xxviii) which excludes a person who is employed in supervisory capacity and draws wages of Rs. 800 per month or more had he con tended that the petitioner being the Assistant Security Offcer was essentially a supervisor and since he was getting Rs 850 per month, therefore, he was not a worker. Mr. Shahani contended that clause (b) of section 2(xxviii) should be read as a whole and the word "or" used in this clause between the words "mensem" and "performs" should be read as 'and' in order to get the correct sense which the Legislature wanted to convey. He says that the whole scheme of this Ordinance particularly that which can be spelt out from sections 2 (viii) and 2 (xxviii) seems to be designed to exclude managerial and administrative staff from the definition of the workmen but otherwise to widen the definition of workmen to every other employee and, therefore, he says that clause (b) of section 2(xxviii) should be read in such a manner that a person who is working in supervising capacity and gets wages of Its. 800 or more he should also be performing the duties and functions mainly of managerial nature as otherwise even a jobber in a textile mills who is supervising work of four persons may have to be declared as workman. I do not agree with these submissions as the words have to be ordinarily read and considered according to their ordinary meaning as they are used unless there is a compelling reason to change one word into another and that could only be done if 'or' would not make any sense and, there fore, 'or' will be read as 'or' or convey a disjunctive sense and cannot changed to read as 'and' which gives a conjunctive sense. I do not f n any compelling reasons to depart from the ordinary principle of reading the word 'or' as it is as the phrases used in clause B seem to have bee used disjunctively. Moreover, the learned counsel has omitted t consider the second 'or' which has been used in this clause between th words 'office' and 'by'. This 'or' cannot be read as 'and' ate it is clearly used in a disjunctive sense for the alternate clause. . This again emphasises the performance of functions mainly of s managerial nature irrespective of the fact whether the employment is in a managerial capacity or not. The Legislature has created different categories of employees who will be excluded from the definition of workmen if they are working in the capacity shown in clauses A and B of section 2(xxviii). The excluded categories are as follows :‑‑

(1) who is employed mainly in a managerial capacity [section 2(xxviii) (a)] ; or

(ii) who is employed mainly in an administrative capacity, [section 2(xxviii) (a)]; or

(iii) who being employed in a supervisory capacity draws wages exceeding Rs. 800 per month, [section‑2(x‑xviii) (b)] ; or

(iv) who performs either because of the nature of the duties attached to the office or by reason of the powers vested in him, functions of mainly a managerial nature [section 2(xxviii) (b)].

It may be noticed that in the above categories of (i) (H) and (iii) which I have made out of clauses A and B of section 2 (xxviii) of I.R.O. the emphasis is on the capacity in which the person is employed which is either managerial or administrative or supervisory, while in the 4th category which I have made the emphasis is on the nature of the duties attached and the powers vested and the performance of functions irrespective of the fact whether a person is employed in the managerial, administrative or supervisory capacity or not. Therefore, the four categories envisage 4 different positions and hence there is no difficulty in reading the word 'or' as it is in its ordinary disjunctive sense.

8. I may also add here that even if clause (b) of ‑section 2(xxviii) of I.R.O. 1969 is read in a manner in which employment in supervisory Capacity is read as a predominant part and drawing of wages of Rs. 800 ap per month or performance of managerial functions clauses are read as subsidiary parts of the same clause even then the word or' has to be read as 'or' and not as and'. The intention of the Legislature in respect of clauses (a) and (b) seems to be clear that all those persons who are either employed in managerial or administrative capacity or who are employed in merely supervisory capacity and receive a particular pay per month or perform managerial functions although they may not be employed for the same are to be excluded from the definition of workmen. 1, there fore, do not agree with the submission of the learned counsel for the respondent and, therefore, even if I. R.O. was applied in this case, the case of the petitioner would be covered by the exclusion part of clause (b) of section 2(xxviii) of I.R.O., where a person employed in a supervisory capacity and drawing Rs. 800 per month or more is excluded from defini tion of workman. The petition is, therefore, dismissed with no order as to costs.

I may, however, note the industry and Labour put in by Mr. Shahanir and Mr. Shareef in expounding their respective cases.

A. E. Petition dismissed.

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