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Petitioner: ZUBAIR AHMAD VS Respondent: SIND LABOUR APPELLATE TRIBUNAL, KARACHI AND JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter, Saeeduzzaman Siddiqui, Naimuddin Ahmed Title:ZUBAIR AHMAD vs SIND LABOUR APPELLATE TRIBUNAL, KARACHI AND
JUDGMENT
Reported As: PLD 1985 Karachi 760 Result: Reference answered Judgment JUDGMENT JUDGMENT ' SALEEM AKHTAR, J.-This petition has been filed against the order of the Sind Labour Appellate Tribunal. The petitioner was employed with respondent No 2 as Medical Detailing Representative, Ethicon Division. He was charge-sheeted and after an enquiry he was dismissed and removed from service with effect from 16th February, 1976. He moved an application under section 25-A of I. R. 0., 1969 before the Sind Labour Court, who granted it and he was reinstated with full back benefits. The respondent No, 2 filed an appeal before the Labour Appellate Tribunal, who by the impugned order allowed the appeal and held that the petitioners was not a workman. ' On the date of hearing the learned counsel for the respondent was not present, and therefore, we heard Mr. Shahenshah. Hussain, Advocate for the petitioner. After the judgment was reserved the Advocate for the respondent appeared on the next date of hearing and orally explained that due to illness he was unable to attend the Court. However, he submitted his notes of arguments and the authorities upon which be relied. The main contention in the petition is that the petitioner is a workman. It is an admitted position that before an action under section 25-A of I. R. 0., 1969 could be initiated the petitioner should prove A that he is a workman. As in the present case for the purposes of invoking section 25-A of I. R.
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0., 1969 the petitioner was relying upon the right conferred on him by virtue of the provision of West Pakistan Industrial' and Commercial Establishment (Standing Orders) Ordinance 1968, he had to establish that he was a workman within the meaning of the said Ordinance of 1968. The entire case, therefore, hinges on the interpretation of the definition of the "workman", as provided in the Standing Orders Ordinance. On the basis of the evidence the Labour Court has held that the petitioner was a workman, whereas the finding of the Appellate Tribunal is otherwise. Without entering into the merits of the case at this stage, we refer to the following definition of the word "workman" as provided by section 2, sub-clause (1) of the Standing Orders Ordinance :- "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." ' No doubt it is the nature of duty performed by an employee which will determine whether he is a "workman" as defined by Standing Orders Ordinance, 1968. It is, therefore, of utmost importance that it should be proved by evidence. But before appreciating the evidence one has to clearly understand the interpretation of the definition reproduced above. There are various authorities reported in the impugned judgment where the word "workman" as defined in 1. R. 0. Has been interpreted. It may be noted that the definition of the "workman" under I. R. 0. Is substantially different from the definition of "workman" given under the Standing Orders Ordinance. These authorities may give aid to interpretation but cannot finally determine the interpretation of workman as defined in Standing Orders Ordinance. The question for consideration is which category of employees fall within the definition of the "workman" as defined by Standing Orders Ordinance. One possible view is that those employed to do skilled work, unskilled work, manual work or clerical work fall within the definition. Another view is that person employed in "skilled manual work" "unskilled manual work" "skilled clerical work" and "unskilled clerical work" may be termed as workman. ' There seems to be several authorities in which word "workman" as defined under the Industrial Disputes Ordinance, 1959 and Standing Orders Ordinance has been interpreted. As stated above the definition of workman as contained in Standing Orders Ordinance is substantially different from the definition contained in I. R. 0. But closely resembles with the definition provided by Industrial Disputes Ordinance, 1959. ' In the case of Chairman Brooke Bond (Pakistan Limited) Karachi v. Central Security Union Karkunan-e-Brooke Bond, Rawalpindi (1) the Division Bench interpreted "workman" as defined in Industrial Disputes Ordinance, 1959, and observed as follows :- "According to this definition a 'workman' is employed in any industry to do skilled or unskilled work which is manual or clerical. Manual work entails physical exertion to distinguish from the mental on intellectual exertion involved in the clerical work. But both the' manual and clerical work, in the sense these terms are used here, connotes that it is more or less as routine work, not (1) PLD 1969 Lah. 717 requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same.' ' In the case of Muller & Phipps (Pakistan) Limited v. District Magistrate, Karachi (1), a Division Bench while interpreting the word "workman" as defined in M. L. O. 52, which was a verhitum reproduction of the definition as provided by the Standing Orders Ordinance, observed as follows :- "No doubt the words skilled or unskilled, manual or clerical work also occur in the definition of that term and it was construed as such in the above case. It was while elucidating definition of workman that it was observed that he was employed in an industry to do skilled or unskilled work, which could either be manual or clerical. If that is so then a peon will not be covered by the definition of the term workman, who neither does manual nor clerical work, but that does not seem to be the intention of the legislature, which while laying emphasis on the nature of work seems to
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give to it a wide meaning by using the words sgilled or unskilled, manual or clerical which, to my mind illustrate the nature of the work and have to be read disjunctively. As such, it is not possible to read the words skilled or unskilled to mean either manual or clerical, whether, comma is or is not taken into consideration while construing these words. Therefore, the nature of the duties performed would not except him from the definition of the word workman." ' Again in a case of Muhammad Aqil v. Sind Labour Appellate Tribunal (2) a Division Bench while considering the the word "workman" as defined in the Standing Orders Ordinance observed that :- "It will, however, be fair to state that the learned counsel for the petitioner made no attempt to argue that the petitioner came within the aforesaid definition of workman and rightly so for the duties of petitioner enumerated above would clearly exclude him from being a workman for he was not employed to do any skilled or unskilled, manual or clerical work." ' There seems to be some what a divergence of opinion in these cases with regard to the interpretation of "workman". In the case of Bashir Ahmad Zia v. The Chairman, Punjab Lahore Appellate Tribunal and another (3), where an Assistant Manager of Punjab Agricultural and Development Corporation had filed a civil petition for special leave to appeal challenging the judgment of the High Court, the Supreme Court observed that "the High Court has in the light of the charter of his duties and the duties he was actually performing held him to be not a workman. His duties were mantifestly not clerical or manual". It seems that the question whether the words "skilled or unskilled, clerical or manual" have been used disjunctively or not was not under consideration. The point involved is a matter of considerable importance and isl likely to affect a large number of cases. It is necessary that this divergence's of opinion should be settled by an authoritative decision of a larger Bench. ' (1) PLD 1974 Kar. 261 (2) PLD 1978 Kar. 649 (3) 1982 SCMR 407 ' We, therefore, order that the case may be placed before the Honourable Chief Justice for 'consideration and referring the following questions to a larger Bench :- ' Whether in section 2(i) of West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 the words "skilled or unskilled" "manual or clerical" have been used disjunctively and a person employed to do skilled work, unskilled work, manual work or clerical work is a workman. ' Whether in section 2 (1) of West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 a person employed to do skilled manual work, unskilled manual work, skilled clerical work or unskilled clerical work is a workman. ' NAIMUDDIN, J.-This Full Bench has been constituted to consider the following questions referred to by a Division Bench of this Court by the order dated 30-7-1981. "(1) Whether in section 2 (i) of West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1959, the words 'skilled' or 'unskilled', 'manual' or 'clerical' have been used disjunctively and a person employed to do skilled work, unskilled work, unskilled work, manual work or clerical work is a workman? (2) Whether in section 2 (i) of West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1959 a person employed to do skilled, manual work, unskilled manual work, skilled clerical work or unskilled clerical work is a workman." 2. Before considering the abovementioned questions the relevant facts may be stated and these are : The petitioner who was employed with Messrs Johnson and Johnson (Pakistan) Limited (hereinafter called `the company ), as Medical Detailing Representative, Ethicon Division, was charge sheeted and after an enquiry dismissed from service with effect from 16-2-1976. 3. The petitioner moved an application under section 25-A of the Industrial Relations Ordinance, 1969, before the Sind Labour Court, Karachi, which was granted by the order dated 9-5-1979.
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Consequently the petitioner was reinstated with full back benefits. 4. Aggrieved by the aforesaid order the Company preferred an appeal before the Labour Appellate Tribunal, Karachi and succeeded on the finding recorded in the order dated 10-10-1979, that the petitioner was not a workman within the meaning of section 2 of clause (i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called 'the Ordinance'). 5. This order led the petitioner to file a constitution petition wherein the questions now under consideration cropped up. The reasons which led to the making of reference of the two questions to this Full Bench was somewhat divergence of opinions as to the meaning of the term 'workman' as defined in the Ordinance. The Division Bench in the order of reference has noticed the following cases; ' Chairman, Brooke Bond (Pakistan) Limited v. Central Security Union Karkunan-e-Brooke Bond (Pakistan) Limited Rawalpindi, Muller & Phipps (Pakistan) Limited v. District Magistrate, Karachi, Muhammad Aqil v. Sind Labour Appellate Tribunal and Bashir Ahmed Zia v. The Chairman, Punjab Labour Appellate Tribunel and another. 6. We have heard Mr. Shahenshah Hussain learned counsel for the petitioner and Mr. Kh. Naveed Ahmed learned counsel for respondent No, 2, and the learned Advocate-General, Sind. 7. The learned counsel for the petitioner submitted that the words `skilled or unskilled', 'manual' or clerical' used in section 2(i) of the Ordinance, signify four distinct categories of work which, according to him, are covered by the term 'workman'. While Mr, Kh. Naveed Ahmed learned counsel for respondent No, 2 submitted that the words `skilled or unskilled', do not signify any independent categories of workmen but further qualify the two categories of persons who do manual work or clerical work. 8. Mr, Shahenshah Hussain, learned counsel for the petitioner in addition to the cases noticed in the order of reference by the Division Bench referred to the following cases : ' Pakistan Tobacco Co. Ltd. v. Pakistan Tobacco Co., Employees Union Dacca and others PLD 1961 SC 403, Unreported decision of this Court in Petition No, 432 of 1969, Messrs Abro Salt and Chemical Works v. The Chairman, Second West Paki tan Industrial Court and another. Unreported decision of the Supreme Court in Civil Petition for Special Leave to Appeal No, K-75 of 1970, Messrs Abro Salt and Chemical Works v. The Chairman Second West Pakistan Industrial Court Karachi and Abu Baker Murad ; Bashir A. Malik v. Punjab Labour Court (Northern Zone), Lahore and 2 others P L lD 1973 Lah. 594, I. E. Saleh v. International Laboratories Limited etc. PLD 1975 Kar. 279, Brooke Bond (Pakistan Ltd. v. Conciliator Appointed by the Government of Sind and 6 others P 1 D 1977 SC 237, Pakistan Television Corporation Limited v. M. Baber Zoo an 1981 PLC 219, Rehmat Ali v. Security Papers Limited and another PLD 1982 Kar. 913. 9. On the other hand, Mr. Khawaja Naveed Ahmed, learned counsel for respondent 2 besides relying on chairman, Brooke Bond (Pakistan) Ltd. Karachi v. General Secretary Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi, Muhammad Aqil v. Sind Labour Appellate Tribunal and another which have been referred to by the Division Bench in their order also relied on the Sind Labour Appellate Tribunal decision in Messrs Sandoz (Pak.) Ltd. v. Bakhtrawan (1), Johnson & Johnson (Pak.) Ltd. v. Zubair Ahmed (2). 10. In addition to the above cases noticed by the Division Bench in their order of reference or cited by the learned counsel for the parties, the following other cases which are directly relevant or have some bearing on the questions involved have been referred or relied upon in the aforesaid cases or have been noticed by us. The Workers of Bata Shoe Co. (1) 1983 PLC 796 (,2) 1980 PLC 622
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Lahore v. Bata Shoe Co. Ltd., and another (1), Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (2), Shahzar Khan v. Sind Labour Court No, 4 Karachi and 2 others (3), Bashir Ahmad Zia v. The Chairman Punjab Labour Appellate Tribunal and another, Muhammad Sadiq v. Punjab Labour Court No, 1. Etc. (4), Abdul Sattar v. Vth Sind Labour Court, Karachi and 2 others (5), Grind Wheel Pakistan Ltd. v. Syed Khalid Ahmad (6), I. E. Saleh v. Messrs International Laboratories (7), Tarbela Joint Venture through Major C. J. Biggs. Personal Manager, Chief Camp Commandant v. Labour Appellate Tribunal, N.-W. F. P. And 2 others (8), Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No, 3, Lyallpur and 2 others (9), S. M. Rizvi v. IV Sind Labour Court and others (10), Bakhtiar All Afghani v. Roll Corporation of Pakistan Ltd. Lahore (11), Pakistan International Airlines Corporation v. The Chairman Punjab Labour Appellate Tribunal Lahore and another (12), Karachi Transport Corporation v. Muhammad Hafeez Siddiqui and 2 others (13), Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and 2 others (14) and Organization of the Karachi Port 'Trust Workers v. Karachi Port Trust etc. C. P. S. L. Appeal No, K-6 of 1968. 11. In order to answer the questions referred to us for our opinion and to appreciate the submissions made by the learned counsel for the parties and before we consider the cases cited before us or noticed by us, it may be convenient for ready reference that we may here reproduce the definitions of the term "workman" as given in. "(1) Section 2 (n) of the Industrial Disputes Ordinance, 1959 ; (ii) Section 2 (u) of the West Pakistan Industrial Disputes Ordinance, 1968 ; (iii) Section 2 (xxviii) of the Industrial Relations Ordinance, 1969 (substituted and amended in 1972), and (iv) Section 2 (i) of the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance (VI of 1968). (i) Industrial Disputes Ordinance, 1959. ' Section 2 (n).- "Workman" means any person, including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any procedings under this Ordinance in relation to an industrial dispute, a workman discharged during that dispute but does not include any person employed in the police or armed forces of. Pakistan. (ii) The West Pakistan Industrial Disputes Ordinance, 1968: ' Section 2 (u).-` workman' means any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical or clerical work, for hire or reward, whether the terms (1) 1971 PLC 1 (3) 1977 SCMR 103 (5) 1979 PLC 297 (7) PLD 1975 Kar. 279 (9) PLD 1977 Lab. 71 (11) 1979 PLC 79 (13) 1980 PLC 644 (2) 1979 SCMR 304 (4) NLR 1983 Labour 25 (6) 1975 PLC 263 (8) PLD 1975 Pesh. 240 (10) 1977 PLC 640 (12) PLD 1979 Lah. 415 (14) 1983 PLC 498 of employment be expressed or implied, and for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, includes any such person who has been dismissed, discharged, or retrenched in connection with, or in consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person ; . . . . (i) to (v) not relevant. (iii) The Industrial Relations Ordinance, 1969 (As substituted and amended in 1972). ' Section 2 (xxviii).-`worker and 'workman' means any person not falling within the definition of employer who is employed including employment (as a supervisory) or as an apprentice in an
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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 mensern or performs, either, because of the nature of duties attached to the' office or by reason of the powers vested in him, functions mainly of managerial nature. (iv) The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). ' Section 2 (1)-`Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." 12. Having stated the definitions as given in various Ordinances, we now proceed to consider the definition of "workman" given in the Ordinance. In doing so we may at the very outset state that the cardinal rule for construction of statutes is that they should be construed according to the intention expressed in the statutes themselves. The intention is to be gathered from the words used in the statutes. If the words of the statutes are themselves precise and unambiguous, then no more can be necessary than to expound those words in the ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the Legislature. See : Craies on Statute Law, 6th Ed., p. 66. This rule was declared by the Judges in advising the House of Lords in the Sussex Peerage claim (1844) 11 Cl. & F. 85. 143 and accepted by the Judicial Committee in Cargo Ex argos (1873) L R 5 P C 134, 153. 13. Examined in the light of the above rule we find that the word, "any" is of great significance. This word according to the Stroud Judicial Dictionary, 4th Ed., Vol. I, p. 145, means : "(1) 'Any' is not confined to a plural sense (Eaton v. Lyon 3 Ves. 694), 'Any' is a word which excludes limitation (emphasis* supplied) or qualification (per Fry L. J. Duck v. Bates 12 Q. B. D. 79); *Mere is italics] `as wide as possible' (Chitty, J., Beckett v. Sutton (51 L J Ch. 433). A remarkable instance of this wide generality is furnished In re: Farquhar (4 Notes of Ecc. Cases 651, 652, cited Wms. Exs.), wherein the words 'any soldier' etc. (Wills Act, 1937 (c. 26), S. 11), were construed as including miners, so that soldiers and seamen, within that section can make Nuncupative wills though under age, so a power in a lease, enabling the lesser to resume 'possession of any portion of the premises demised' enables him to resume all Liddy v. Kennedy LR5HL 134." ' According to Black's Law Dictionary, 4th Edn., p. 120, it inter alia, means : " 'Any' Some; one out of many: (emphasis supplied) an indefinite number State v. Pierson (204 Lowa 837, 216 N. W. 43, 44. One indiscriminately of whatever kind or quantity. Federal Deposit Insurance Corporation v. Wintion C. C. A. Tenn 131 F. 2nd 780, 782)." 14. This word obviously, therefore, applied to all the four succeeding words namely, "skilled", "unskilled", "manual", and "clerical" which words though no doubt qualify the word "work". Accordingly, it means that any person doing any skilled work or any unskilled work or any skilled clerical work or unskilled clerical work will be covered F by the definition. Therefore, it is not every work which a person generally does that qualifies him as a workman within the meaning of section 2 (1) of the Ordinance, but when he does the skilled work or unskilled work, or manual work or clerical work that brings him within the purview of the Ordinance. Further, if we examine the definition of `workman as given in section 2 (n) of the Industrial Disputes Ordinance, 1959 and in section 2 (u) of the West Pakistan Industrial Disputes Ordinance, 1968 in order to discover the
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intention of Legislature, we find that the expression 'skilled, or unskilled', 'manual or clerical', used in the definition of workman given in section 2 (n) does not contain any punctuation or commas while in the expression skilled, unskilled, manual, technical, or clerical used in the definition of workman given in section 2 (u) of the West Pakistan Industrial Disputes Ordinance, 1968, the first three words are separated by commas. It is, therefore, clear that previously also the Legislature used these words in the sense of separate categories of work. The definition came up for consideration by a Division Bench of this Court in Muller & Phipps (Pakistan) Ltd., Karachi v. District Magistrate, Karachi and 4 others Muhammad Haleem, J. (as the Honourable Judge then was and now the Chief Justice of the Supreme Court of Pakistan) who in writing the opinion for the Court observed that words "skilled", "unskilled", "manual", or "clerical", illustrated the nature of work and had to be read 'disjunctively' and as such, the learned Judge further observed that it was not possible to read the words "skilled", or "unskilled" to mean either "manual" or "clerical", whether comma is, or is not taken into consideration. It may be useful here if we may quote paragraph 8 of the judgment, for it also distinguishes two cases namely, Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkuaan-e-Brooke Bond (Pakistan) Ltd., Rawalpindi and Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Employees' Union, Dacca and others (1) and obviates the necessity to separately discuss them here. "Paragraph 8.-The legal contention that emerges is that being a (1) PLD 1961 SC 403 *Rim in italics) sales representative, respondent No, 5 could not be placed in the category of workman, for its definition visualises that he should either be skilled or unskilled, which in turn must be either manual or clerical. Thus, 'skilled' must convey the sense of manual or cierical. Similarly, unskilled work should also be such. This is how he wanted us to construe the words 'skilled or unskilled, manual or clerical work' occurring in the definition of the word 'workman' in section 2 (i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, which meaning is also assigned to it by para. 3 (b) of the Order, which reads :- ' Any person employed in any industrial and commercial establishment to do any skilled or unskilled manual or clerical work for hire or reward.' ' In so urging Mr. Salim Akhtar placed reliance on the case of Chairman, Brooke Bond (Pakistan) Ltd., Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Ltd., Rawalpindi PLD 1969 Lah. 717, where the definition of 'workman' as it is worded in the Industrial Disputes Ordinance (LVI of 1959) was under consideration. No doubt, the words 'skilled or unskilled, manual or clerical work' also occur in the definition of that terms and it was construed as such in the above case. It was while elucidating definition of 'workman' that it was observed that he was employed in an industry to do skilled or unskilled work, which could either be manual or clerical. If that is so, then a peon will not be covered by the…
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