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Petitioner: REHMAT ALI VS Respondent: THE SECURITY PAPERS LTD. AND ANOTHER
Court Name: Sindh High Court Judge(s): Ajmal Mian, Ghulam Muhammad Kourejo Title: REHMAT ALI vs THE SECURITY PAPERS LTD. AND ANOTHER Case No.: Constitutional Petition No. D-139 of 1981 Date of Judgment:1982-03-10 Reported As: PLD 1982 Karachi 913 Result: Petitions allowed
JUDGMENT
JUDGMENT AJMAL MIAN, J.-Since the above two petitions involve common questions of law, we intend to dispose of the same by this common judgment. (a) Constitution Petition No. 139/81.-The facts leading to the filing of the above petition are that the petitioner was a permanent employee of respondent No. 1 Company as a Security Guard Since 1969. It seems that on or about 28-8-1979 the petitioner was charge-sheeted on the allegation that on 21-1-1979, he had incited the workers at the front gate of the mills alleging, that lot of money, material, and labour were being unnecessarily spent on S. P. L. House at Defence Co-operative Housing Society, Karachi. The above charge-sheet was issued under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance). It further seems that on the basis of domestic inquiry conducted by the respondent- Company, the petitioner was dismissed from service by an order dated 12-12-1979. It also seems that the petitioner after serving a grievance notice filed an application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as I. R. O.) in .The 4th Sind Labour Court at Karachi (being Application No. 20/1980). It further seems that after the conclusion of the cross-- examination of the petitioner, respondent No. 1 filed an application for raising the plea that the petitioner was not a workman within the ambit of section 2(i) of the Ordinance, which plea was allowed to be raised. However, the learned 4th Sind Labour Court by its order dated 13-9-1980 allowed the petitioner's application and ordered his re-instatement , with full back benefits within a period of 15 days. Respondent No. 1 being aggrieved by the above order filed a writ petition, namely, Constitution Petition No.. S-94/80. Upon the service of the notice of the above petition, the petitioner inter alia raised the objection that the petition was not maintainable as respon--dent No. 1 had
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adequate alternate remedy by way of an appeal under the I. R. O. It also seems that respondent No. 1 also filed an appeal against the above order but did not proceed with the same till the dismissal of their petition by this Court through the judgment dated 18-12-1984. The above appeal was allowed by respondent No. 2 by its order dated 1-2-1981 on the ground that the petitioner being a Security Guard was . Not workman within the definition contained in section 2(i) of the Ordinance. The petitioner being aggrieved by the above order has filed the present petition. (b) Constitution Petition No. D-204/1981.-The relevant facts leading to the filing of the above petition are that the- petitioner at the relevant time was working as a shift Jamadar drawing a monthly wages of Rs. 350, and was employed with respondent No. 2 Company since October, 1969. It seems that on 21-1-1979 the petitioner was served with a charge-sheet dated 18-1-1979 under the provisions of the Ordinance, wherein it was alleged against him that on 17-I-1979 at about 10-50 p.m. During the duty hours, a chowkidar and a chowkidar air-condition operator had stolen two bags of card-fly at petitioners' encouragement. It was also alleged, that it was a misconduct under the -provisions of the Ordinance. The petitioner submitted his reply to the above charge-sheet, but respondent No. 2 ordered the holding of an inquiry. It seems that on the basis of the finding recorded by the Inquiry Officer, the petitioner was ultimately dismissed by an order dated 29-1- 1979. It further seems that the petitioner after serving a grievance notice filed an application under section 25-A of the I. R. O. In the Court of 6th Sind Labour Court at Hyderabad on 6-5-1979. The above application was resisted by respondent No. 2 and inter alia it was pleaded that the petitioner was not a workman within the ambit of section 2(i) of the Ordinance. However, at the stage of arguments, respondent No. 2 in their written arguments did not press the above plea. The learned Sind Labour Court by its order dated 8-12-1979 allowed the petitioner's above application and directed respondent No. 2 to reinstate him with continuity of service and back benefits from the date of dismissal. Respondent No. 2 being aggrieved by the above order filed an appeal before the learned Sind Labour Appellate Tribunal (respondent No. 1) which was allowed by an order dated 20-2-1980 on the ground that the petitioner was not a workman within the ambit of the Ordinance being a shift Jamadar or a Chowkidar. The petitioner .Being aggrieved by the above order has filed the present petition. 2. (a) In support of the above petitions Messrs Obaidur Rahman and Mr. Ali Amjad have made the following submissions :- "(i) That as the respondents companies had taken actions under the provisions of the Ordinance inasmuch as charge-sheets and show---cause notice were issued and the dismissal order were passed under the provisions of the Ordinance, the burden of proof was on the respon--dents companies to prove that the petitioners were not workmen . Within the ambit of the Ordinance. (ii) That the performance of duties of the petitioners involve manual work and therefore, the learned Sind Labour Appellate Tribunal erred in holding that the petitioners were not covered by the definition of workmen given in section 2(i) of the Ordinance. (iii) That the learned Sind Labour Appellate Tribunal has erred in not appreciating that the word `labour' appearing in section 2(i) of the Ordinance was substituted by the word "work" by Ordinance No. XXIII of 1973 and, therefore, the scope of the definition was enlarged. (b) On the other hand Messrs Mamoon Kazi and Zaidi, learned counsel for the private respondents have made the following submissions. "(i)That the burden of proof is on a person, who approaches a Labour Court to prove that he is a workman within the ambit of section 2(i) of the Ordinance. (ii) That in order to make a person a workman within the ambit of section 2(i) of the. Ordinance, the Court is to see, whether the performance of the duties by the person concerned involve predominantly the use of his hands in order to perform manual work and that insignificant use of
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the hands in performing of duties will not make a person a workman within the ambit of the Ordinance. (c) In support of their contentions Mr. Obaidur Rahman and Ali Amjad have referred to the casse of Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sind and 6 others (PLD 1977 SC 237the case of Muller & Phipps (Pakistan) Limited, Karachi v. District Magistrate, Karachi and 4 others (PLD 1974 Kar. 261), the case of the Shahzar Khan v. Sind Labour Court No. 4, Karachi and 2others (1977 SCMR 103and the case of Messrs Johnson and Johnson (Pakistan) Limited v. Zabair Ahmed (1980 PLC 622). (d) On the other hands Messrs Mamoon Kazi and Zaidi have referred to the case of K. D. C. Boards Limited v. Muhammad Sadiq (1976 P L,C 915), the case of Bashir A. Malik v. The Punjab Labour Court (Northern Zone), Lahore and 2 others (PLD 1973 Lah. 594the case of 1. E. Saleh v. Messrs International Laboratories Limited Karachi and 2 others (PLD 1975 Kar. 279the case of Pakistan Tobacco Company Limited v Pakistan Tobacco Company Employees' Union, Dacca (PLD 1961 SC 403), the case of May & Baker (India) Limited v. Their Workmen (1961 PLC 1127the case of Grind Wheel Pakistan Limited v. Syed Khalid Ahmed (1975 PLC 263the case of Chairman, Brooke Bond (Pakistan) Limited Karachi v. General Secretary, Union Karkunane Brooke Bond (Pakistan) Limited, Rawalpindi (PLD 1969 Lah. 717the case of Karachi Transport Corporation v. M. Hafeez Siddiqi and 2 others (1980 PLC 644the case of Poineer insurance Company Limited v. Presiding Officer, Labour Court No. 1r, Karachi and another (1978 PLC 293), . The case of General Secretary, Bannu Woolen Mills Workers Union v. Management Bannu Woolen Mills Ltd., Bannu (1964 PLC 347), the case of Pakistan International Airlines Corporation v. The Chairman, Punjab Labour Appellate Tribunal, Lahore and another (PLD 1979 Lah. 415and the case of Maula Bux v. Sin4 Road Transport Corporation, Hyderabad (1980 PLC 616 3. (a) Before taking up the respective contentions of the learned counsel forthe parties, it may be advantageous to quote hereinbelow the definition of workman given in section 2(i) of the Ordinance and the definition of `worker and workman' provided for in section 2(xxvfii) of the I. R. O. Which read as follows :-- "(i) 2(i) "workman" means any person employed in any industrial or he commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." (ii) 2(xxviii) "Worker" and "workman" means any 'person not falling within the definition of. Employer. Who is employed (including employment as a supervisor or) 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 or by reason of the powers vested in him, functions mainly of managerial nature." (b) it may be noticed that the definition of worker and workman given in the I. R: O. Is much wider in its scope as compared to the definition provided in section 2(i) of the Ordinance inasmuch as section 2(xxviii) of the I. R.- O. Provides that a worker means any person not falling within the definition of employer including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward directly or through a contractor. However, it excludes from its ambit a person, who is employed- mainly in a managerial or administrative capacity or who being employed in supervisory capacity draws wages exceeding Rs. 800 per mensem or
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performs either because of the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature. It may again be noticed that an employer is excluded from the purview .Of the above definition of worker and workman. It may be of served that section 2(viii) of the 1. R. O. Defined an employer in relation to an establishment means any person or body or person, whether incorporated or not, who employs workmen in the establishment under a contract of . Employment. The definition includes a heir, successor or assign as the case may be of such person or body as aforesaid, any person responsible for the management, supervision and control of the establishment, in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf and where no authority is so appointed, the head of the Department, in relation to an establishment run by or on behalf of local authority, officer appointed in this behalf or where no officer is so appointed the Chief Executive Officer of that authority and in relation to any other establishment the proprietor of such establishment and every director, manager, secretary, agent 4r officer of person concerned with the management of the affairs thereof. (c) In order to bring a person within the ambit of workman as defines in section 2(i) of the Ordinance the person should be employed in anindustrial or commercial establishment and has to do any skilled or unskilled, manual or clerical work for hire or reward. It may be pointed out that in the original above section 2(i) the word `labour' was employed which was substituted by the word `work' by Act XXIII of 1973 in order to enlarge the scope of the definition. 4. (a) In order to understand the scope of definition of `workman' given in the Ordinance, it may be pertinent to refer to the definitions of the following words used in the above quoted definition of the `Workman'. "Any, "skilled", "unskilled", "manual" and "work." :the word "any" has been, inter alia, defined in Stroud's Judicial Dictionary 4th Edition, Volume I, page 145, Black's Law Dictionary, 4th Edition, page 120, the Oxford English Dictionary, Vol. I, page 378 column 2 and Chambers Twentieth Century Dictionary; which read a; follows :- (i) Stroud's Judicial Dictionary, 4th Edn., Vol. I, p. 145 "Any : (1) "Any" is not confined to a plural sense (Eaton v. Lyon 3 Ves. 694). (2) "Ant" is a work which excludes limitation or qualification (per Fry L. J. Duck v. Bates 12 Q B D 79) ; ' "as wide as possible" (per 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 seaman, within that section can make NUN CUPATIVE 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 L R 5 H L 134. (ii) Black's Law Dictionary, 4th Edition, Vol. 120 "Any Some; one out of many ; an indefinite number State v. Pierson, 204 Iowa ` 837, 216 N W 43, 44. One indiscriminately of whatever kind or quantity. Federal Deposit Ins. Corporation v. Winton, C. C. A. Tenn., 131 F. 2nd 780, 782. One or some (indefinitely). Slegel v. Slegel, 135 N J Eq. 5, 37 A. 2d. 57, 58. "Any" does not necessarily mean only one person, but many, have reference to more than one or to 'many, Doherty v. King, Tex. Civ. Appn. 183 S W 2nd. 1004, 1007. As a synonym for "some", Kayser v. Occidental Life Ins. Co. Of California, 234 Lowa 310, 12 N W 2d. 582, 587. It is often synonymous with "either", State v. Antonio, 3 Brev. SC 562 ; Carr-Lowry Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849, 850. And is given the full force of "every" or. "all"; Glen Alden Coal Co. v. City of Scranton, 282 Pa. 43, 127 A 307, 308 ; Southern, Ry. Co. v. Gaston County, 200 N C 780, 158 S E 481. Its generally may be restricted by the context, Drainage Dist. No. I of Bates County v. Bates County, Mo. Sup., 215, S W 494, 953. Thus, the giving of a right to do some act "at any time" is
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commonly construed as meaning within a reasonable time. Paulson, v. Weeks, 80, Or. 468, 157, p. 590, 592, Ann. Case 1918 D 741. And the words "any other" following the enumeration of particular classes are to be read as "other such like," and include only others of like kind or character. Southern Ry. Co. v. Columbia Compress Co.. C C A SC 280 F 344, 348. (iii) Oxford Eng. Dic. Vol. I, p. 378 "Any : 1. Gen. An indeterminate derivative of one, or rather of its weakened adj. Form, a, an, in which the idea of unity (or, in plural, partitivity) is subordinated to that of indifference as to the particular one or ones ' that may be selected. In sing. A--no matter which ; a-whichever of whatever kind, of whatever quantity. In pl.-Some--no matter which of what kind, or how many." (iv) Chambers Twentieth Century Dictionary (revised edition) Any : adj. And pron. One indefinitely : some whichever, no matter which adv. At all, to an appreciable extent. n. And pron, any body, any single person: a person of any account.--adv. Any how, in any way whatever: in any case, prons. Anyone (or any one), any body at all anybody whatever ; anything, a thing indefinitely, as opposed to nothing adv. Any whit, to any extent." It may be noticed that the word `any' has a very wide connotation and it will inter alia include every kind of thing of the type which is, prefixed by the word `any'. (b) The word `unskilled' has been defined in the Oxford. Dictionary Volume XI, page 343 as follows Oxford Dictionary, Vol. XI, p. 343 "(i) Unskilled : Not skilled or expert in something ; ignorant of untrained or unable to. (ii) Not skilled in some handicraft ; devoid of technical training. (iii) Not involving or requiring skill ; displaying lack of skill." (c) On the other hand the term `skill', `skilled' has been defined inter alla in Stroud's Judicial Dictionary 4th Edition Volume V, pages 2560 and 2561, Oxford English Dictionary Volume IX page 139 ; and Chambers Twentieth Century Dictionary Stroud's Judicial Dictionary, 4th Edition, Vol. V "SKILL (1) : When a skilled person "is employed, there is on. His part an implied warranty that he is of skill reasonably competent to the task he undertakes-spondes peritian artis" (Harmer v. Cornelius 5 C B N S 246) ; i.e. not the very highest skill (Rich v. Pierpoint 3 F & F 35), but "that ordinary degree of skill and knowledge which would reasonably be expected "from one acting in the particular employment and circumstances" (Jenkins v. Betham 15 C B 189). (2) Skill embraces care (Lister v. Romford Ice cfc Cold Storage Co. 1957 A C 555). For "of what advantage to the, employer is his servant's undertaking that he possesses skill unless he undertakes also to use it" (per Viscount Simonds). (3) See hereon, as to the medical profession, Lamphler v. Phipos 8 C & p. 479 ; Rich v. Pierpoint sup:-a Solicitor, Godefroy v. Dalton 6 Bing 468 ; Donaldson v. Haldane 7 C I & F 762 ; Purvess v. Landell 12 ibid 91 ; Lewis v. Collard 14 C B 208-a parliamentary agent, Bulmer v. Gilman 4 M & G 108- an architect, Le Lievre v. Gould (1893) 1 Q B 491: Pogers v. James 2 Hudson, 113: -a surveyor and valuer, Jenkins v. Betham Sup. Turner V. Goulden L R 9 C P 57 :-a house agent. Heys -v. Tindall 30 L J Q B 362 :-a scene painter Harmer v. Cornelius sup: a water finder, Pritty v. Child 71 L J K B 512, cited RECKLESS. See also RELY. (4) A person who is sufficiently "skilled" to act as an expert witness is one who has, by dint of training and practice, acquired a good knowledge of the science or art concerning which his opinion is sought, and the way in which he acquired his skill is immaterial R. v. Bummiss 44 C R 262) A bank manager was held to be "specially skilled" in foreign law as to the proof of what notes were legal tender (Ajami v. Controller of Customs (1954) 1 W L R 1405). Oxford English Dictionary, Vol. IX SKILL: 1. Reason as a faculty of the mind ; the power of discrimination. Obs. (ii) Discrimination or discretion in relation to special circumstances Obs.
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(iii) A sense of what is right or fitting. Obs. 1338 R. BRUNNE Chron (1810) 245. He praied to hold him stille, & he suld do his wille, in alle pat skill-a not se. 1377 LANGL. P. PI. B xix. 279 Ne sholde no scorner ne scolde oute of skyl hym (sc. Temperance) brynge ? 1470 ASHBY Active Policy 649 Do theim to be lettered right famously. Whereby thei shall reule bi Reason and skele. a 1536 Songs, Carols, etc. (E E T S) 25 Grant thow me myn asking. As reason Wold & Skyll. (iv) That which is reasonable, proper, right, or just. Obs. Black's Law Dic., 4th Edn. SKILL. Practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner and with readiness and dexterity. Akridge v. Noble, 114 Ga. 949, 41 S E 78 ; Haworth v. Severs Mfg. Co., 87 Lowa 765, 51 N W 68. Chambers Twentieth Dictionary SKILL. n. Reason (Steak.) : discrimination (obs.) : expertness ; expert knowledge (arch.) : a craft or accomplishment v. t. And v.i. (arch.) to matter : to make (a difference) : to signify.. . It may be noticed that the word 'unskilled' connotes that the person does not have any special or expert knowledge in a particular line, whereas, 'skilled' conveys converse meaning, namely, that the person concerned possesses of reasonably good knowledge and experience in the line in which he is working. (d) The words 'manual'/manual labour have been defined in Black's Law Dictionary, 4th Edition, page 1117, in Oxford English Dictionary page 141 column 1 and 3 and Words and Phrases legally defined by John B Sounders, Second Edition, Volume 3, page 208 and Chambers Twentieth Century Dictionary, which reads as follows Black's Law Dic., 4th Edn. MANUAL : of, or pertaining to, the hand or hands : done, made, or operated by or used with the hand or hands ; or as manual labour, Mc. Erlain v. Taylor, 207 Ind. 240, 192 N E 260, 262, 94 = AIR 1284. Performed by the hand ; used or employed by the hand ; held in the hand. MANUL LABOUR : Work done with the hand. State v. Ash, 53 Ariz. 197, 87 p. 2d. 270, 272. Labour performed by hand or by the exercise of physical force, with or without the aid of tools and of horses or other beats of burden, but depending for its effectiveness chiefly upon personal muscular exertion rather than upon skill, intelligence or adroitness. Lew Jim v. U. S. C. C. A. (Cal.) 66 F. 954, 14 C. C. A. 281 ; Martin v. Wakefield, 42 Minn. (176) 43 N. W. 966= 6 L. R. A. 362. Oxford Eng. Dic., Vol. VI MANUAL : a. And sb. Forms : 5-8 manual, (5 manuele), 5-7 manuell, 5-6 manuelle, manwell, manuale, 6-7 manuall, 6 manual. (ad. The earlier form through F. Manual) L. Manualis pertaining to the hand ; the neut. Manuale was used subst. In class L. For a book-cover', in late L. For a handbook. Cf. Sp., pg. Manual, it. Manual adjs. And shs). (1) Of or pertaining to the hand or hands ; done or performed with the hands. Now esp. Of (physical) labour, an occupation, etc., as opposed to mental, theoretical. Words & Phrases Legally Defines, Vol. 3 MANUAL LABOUR : It seems to me that `Manual labour' can only mean 'labour performed by hand'. Morgan v. London general Omnibus Yo. (1884) 13 Q B D 832 (C. A.) per Bowen, L. J. p. 834. "The appellant was employed as a grocer's assistant in a shop, and his business was to take orders from the customers and to vary them out. In doing this he may have to show goods, and if the customers take away the goods he has to make up the parcels. In doing this he has to use his hands and the question is whether that makes him a manual labourer. There can be no manual labour without user of the hands ; but it does not at all follow that every user of the bands is manual labour, so as to make the person who does it a manual labourer." Bound v. Lawrence (1892) 1 Q B 226, (C. A.) per Lord Esher, M. R. At p. 228.
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"It is difficult to imagine any work done by man so purely intellectual as to require no kind of work with the hands ; and the converse is equally true, that there can hardly be work with the hands that requires no intellectual effort. If, then, the words 'manual labour' are to have the full significance which could be put on them, they would be extended to every kind %of employment . . . . The determi--nation of what is substantial and what accessory may be a question of difficulty ; but, in my view of this case, the appellant was not engaged in manual labour. In his occupation the knowledge and skill required in selling the goods to customers is more important than the manual work that he does, and the latter is an incident of his employment. Chambers Twentieth Century Dictionary MANUAL : adj., of the hand ; done, worked, or used by the hand ; working with the hand.-n. Drill in the use of weapons, etc. : a hand book or handy compendium of a large subject or treatise an old office book like the modern R. C. Rituale : a key or keyboard played by hand : a primary feather.- adv. Manually.-manual alphabet, the signs for letters made by the deaf and dumb, manual exercise, drill in handling arms." It may be noticed that the word 'manual' or `manual labour' involves use of hands as compared to the use of 'skilled' or intellect. If a person uses his hands as well as skill/intellect in that event the question whether the person belongs to 'manual labour' or to 'skilled labour' or 'skilled -person' has to be determined with reference to the quantum of use of hands and use of skill. If while performing his duties/functions he predominantly uses his hands in that event. He would fall within the category- of manual labour but if he predominantly uses his skill, he would not fall within the category of manual labour but would be covered with the term 'skilled labour'/'skilled' person. (e) The word 'work' has been, inter alia, defined in Black's Law Dictionary…
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