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Appeal No. HYD-595 of 1982, heard on 3rd May, 1983.

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

----S. 1 (4), proviso read with Sind Small Industries and Handicrafts Development Corporation Act (XXVI of 1972), S. 4 and Sind Small Industries and Handicrafts Development Corporation Service Rules, 1978, r. 1 (2)-Exclusion from ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,. 1968-Sind Small Industries Corporation-Mere fact that Government constitut ed a Board to administer and manage affairs of Corporation cannot be-construed to indicate that Corporation is not being run under authority of Provincial Government when Government exercises wide ranging powers to issue directions to Board and also to suspend or rectify certain types of resolutions and orders of Board- gorporation has statutory rules governing service, conduct and discipline of its employees-Such rules however not applicable to a person covered by definition of "workman" under Factories Act, 1934 or Workmen's Compensation Act, 1923-Such employee, held, not ousted from ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--Grievance petition of employee of Corporation (Helper at Mechanised Training Centre) against termination of service dismissed by Labour Court on grounds that provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not appli cable--No evidence adduced on point whether petitioner was a "workman" and excluded from purview of Sind Small Industries and Handicrafts Corporation Service Rules, 1978 and whether Mechanised Training Centre where petitioner was employed was an educational institute and not a commercial establishment-Order of Labour Court, in circumstances, set aside by Appellate Tribunal and case remanded for decision afresh after opportunity of evidence to parties-Industrial Relations Ordinance (XXIII of 1969), Ss. 25 & 37. A, B, C & D Trustees of the Port of Karachi v. Abdul Ghani C. A. No. K-272 of 1980 and Writ Petition No. 74 of 1976 (unreported) rel.

Muham.mad Nawaz v. Sind Labour Appellate Tribunal 1982 P L C 1002 rel.

Wasiulluh Qureshi for Appellant.

Raees Muhammad Mushtaq for Respondent.

Date of hearing : 3rd May, 1983.

This appeal is directed against the decision of the learned VI th Labour Court, given on 20th November, 1982, dismissing the grievance petition of the appellant challenging, the termination of his services.

2. The admitted facts of this case are that the appellant was employed as a Helper at the Mechanized Tranining Centre, Mirpurkhas of the Sind Small Industries Corporation, the respondents herein, through appoint ment letter, dated 13th/21st January, 1982. One of the terms of his appointment was that be would be on probation for a period of one year in the first instance or until _ such time, as the corporation in its sole discretion decides. Within one year of the appellant's appointment, the respondent-Corporation, , by its letter, dated lst Juue, 3.982, terminated the services of the appellant on the basis of the above terms of his appointment letter and further intimated him that he was not entitled to notice or to notice pay as his services have been termina ted during the period of his probation. The appellant challenged the order of termination of his services through a grievance petition preferred before the learned VI th Labour Court. Preliminary objection to the maintainability of the appellants grievance petition were taken by the respondent Corporation on the grounds, firstly, that as the respondent Corporation was being run under the authority of the Government of Sind and had statutory rules of service, conduct and discipline for its employees, the Standing Orders were not applicable to it and its employees, secondly, that the Centre wherein the appellant was emp loyed was a Training Centre and an educational centre and not a com mercial establishment and thirdly, that the services of the appellant have been terminated during the period of his probation in accordance with the terms of his appointment letter. The appellant filed counter affidavit challenging the objections of the respondent-Corporation. The learned Labour Court, however, rejected the contentions of the appel lant and has held that the respondent-Corporation is being run under the authority of the Provincial Government and has statutory rules of service for its employees, that the Training Centre wherein the uppellant was- employed is not being run on commercial basis and that further the appellant's services were terminated during the period of his probation in accordance with the terms of his appointment.

3. I have heard Mr. Wasiullah Qureshi, the learned counsel for the appellant and Mr. Raees Muhammad Mushtaq, who appeared for the respondent-Corporation. It was sought to be argued by Mr. Wasiullah Qureshi that the respondent-Corporation is being carried on by its Board and not under the authority of the Government of Sind. The mere fact, however, that the Government has constituted a Board under section 4 of the Sind Small Industries and Handicrafts Development Corporation Act, 1972, to administer and manage the affairs of the respondent-Corporation cannot be construed by itself to indicate that the corporation is not being run under the authority of the Provincial Government, . particularly, when the Government exercises under the Act IA by which the corporation has been established, wide ranging powers, including the power to issue directions to the Board which it is bound to comply with as also the power to suspend or to rectify certain

types of resolution and orders of the Board. It has been held by the Supreme Court in the case of Trustees of the Port of Karachi v. Abdul Ghani (Civil Appeal No. K-2'12 of 1980), decided on 25th August, 1982, that it cannot be disputed that the provisions of the West Pakistan (Standing Orders) Ordinance are not applicable to the employees of the K. P. T., notwithstanding the fact that the day to day affairs of the K. P. T. are being managed by the Chairman and the Trustees of K. P. T. Similarly in the case reported as Muhammad ,Vawaz v. Sind Labour Appellate Tribunul (1), it has been held by a Division Bench of the Karachi High Court that it cannot be denied hat the Karachi Municipal Corporation can be termed as an establishment 'which is being run under the Provincial Government though it has a corporate status.

4. However, in order that the respondent-Corporation and its employees should be exempted from the applicability of the provision of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, under the first proviso to subsection (4) of section I of the Ordinance, it must be established that the respondent Corporation has statutory rules of service, conduct and discipline for its employees. It was conceded by Mr. Wasiullah Qureshi that the respondent Corporation had framed the Sind Small Industries and Handicrafts Development Corporation Service Rules 1978, under section 34 of the Sind Small Industries and Handicrafts Development Corporation Act, 1972. The said rules, however, are only applicable to corporation ser vants as provided in sub-rule (2) of rule 1. Corporation servants have been defined in the said Rules as follows :-

Corporation Servant' means a person who is holding a post in connection with the affairs of the Corporation but does not include-

(d) a person who is on deputation to the Corporation from Govern ment or the Federal Government or any other authority ; or

(ii) a person who is employed on contract or on work-charged basis, or who is paid from working capital ; or

(iii) a person who is a worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's-Compensation Act, 1923 (XIII of 1923)."

It will be seen that the definition of Corporation Servant excludes 3 important categories of persons who are holding posts in connection with the affairs of the Corporation, namely, (1) a person who is employed on deputation from the Government or any other authority; (2) a person who is employed on contract or on work-charged basis or who is paid from working capital; and (3) a -person who is a worker or workman as defined in the Factories Act or in the Workmen's Compensation Act. As no evidence has been led in the case and the matter has been decided on the basis of the preliminary objections raised by the respondent-Corporation, it cannot be said presently whether the appellant is a Corporation Servant or he belongs to one of the excluded categories of employees. Mr. Raees M. Mushtaq, the learned counsel for the respondent-Corporation was unable to refer me to any evidence on record from which it could reasonably be concluded that the appellant is an employee of the respondent-Corporation to whom the aforesaid Rules are applicable. If the appellant is not a Corporation Servant, the aforesaid rules would not be applicable to him and to that case the first proviso to subsection (4) of section 1. of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, would not be applicable to him.

5. It was next submitted by Mr. Wasiullah Qureshi that no opportunity was given to the appellant to establish his contention that the Machanized Training Centre wherein he was employed was not an educa tional training centre but was a commercial establishment. No doubt the respondent-Corporation, with their preliminary objections have filed certain documents relating to the establishment of the training centre but the appellant, in his application opposing the preliminary objections and in his counter-affidavit in support of his application had taken the stand that the objection taken by the respondent-Corporation on the score that the training centre was not a commercial establishment but an educational centre was not only incorrect but false and baseless and moreover those objections can only be pressed on factual side after evidence has been led in the case. The stand taken by the appellant cannot be termed as unreasonable or devoid of substance although prima facie the documents filed by the respondent-Corporation with their preliminary objections seem to indicate that the Centre was established only for the purposes of training personnel in certain arts and crafts. It was held by a Division Bench of the earstwhile High Court of West Pakistan in Writ Petition No. 74 of 1976, decided on 10th January, 1977, that the Punjab Agricultural Research Institute, Lyallpur, which was being run by the Pakistan Central Cotton Committee, a body corporate constituted by the Government of Pakistan under section 4 of the Cotton Cess Act, 1973, was not an industry for the purposes of the I. R. O. and hence the certification accorded to the Pakistan Central Cotton Committee Employees Union as C. B. A. by the Registrar of Trade Unions was invalid. This Tribunal has also held that the Metalogical Training Centre of the Pakistan Steel Mills is a training and educational centre and the provisions of the Standing Orders are not applicable to the trainees thereof. However, as pointed out above, the issue requires evidence whether the Mechanized Training Centre of the respondent-Corporation is an educational training centre and not a commercial establishment and an opportunity must be given to-the appellant to rebut the contentions of the respondent-Corporation in this behalf and to establish the assertion made by him in his affidavit that the Train in Centre in fact is not an educational training centre but a part of commer cial establishment or organization.

6. It was finally submitted by Mr. Wasiullah Qureshi that though admittedly the services of the appellant were stated to have been termi nated during the period of his probation and in accordance with the let ter of his appointment, but since the letter of appointment provided for probation of one year contrary to the provisions of Standing Order I and further as the services of the appellant were terminated after the appel lant had put in some 5 months' satisfactory services, he is deemed to have become a permanent employee in view of the provisions of Standing Order . The said Standing Order provides that a permanent workman is a workman who has been engaged on work of permanent nature likely to last for more than 9 months and has satisfactorily completed a proba tionary period of 3 months. The letter of appointment of the appellant seems to indicate that be was employed on work of a permanent nature which was to last for more than one year. If, therefore, the Standing

Orders are applicable to the employment of the appellant, he would be deemed to have become a permanent workman as he had satisfactorily completed 3 months' probationary period long before his services were terminated, vide order, dated 16th June, 1982. However, as already pointed out the issue whether the Standing Orders are applicable to the respondent Corporation and particularly to the appellant can only be decided after evidence has been led in the case.

7. The upshot of the above discussion is that I would set aside the decision of the learned Labour Court and would remand the case to it .C for giving fresh decision after giving opportunity to both the parties to lead evidence.

A. a Case remanded.

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