' SARMAD JALAL OSMANY, J.--- As common questions of law and fact are in issue in all the aforementioned appeals, hence they are being disposed of through this judgment.
2. Although the parties have a long histories of litigation inter se, however, the facts relevant for the decision of Civil Appeal No,697 of 2005 re: Mahmood Hussain Larik and Civil Appeal No,698 of 2005 re: Muhammad Khan Abro .Are that the appellants were serving as Officers Grade-III with the respondent-Bank. During the course of their service they were proceeded against on the ground of misconduct etc., whereafter an inquiry was constituted in the matter and both were dismissed from service. Against such dismissal order the appellants filed departmental appeals and upon rejection thereof they approached the learned Labour Court through grievance applications. After conducting a detailed inquiry, said Court found that the appellants' dismissal from service was not proper and hence they were reinstated with back-benefits. The learned Labour Court also found that the appellants were workmen and hence they had the right to file grievance applications under section 25-A of the Industrial Relations Ordinance. The respondent-Bank approached the learned High Court which vide impugned judgment reversed the findings of the learned Labour Court on the short ground that they were not workmen and hence not entitled to invoke the learned Labour Court.
3. The facts in Civil Appeal No,699 of 2005, re: Ahmed Ali are slightly different inasmuch as therein the appellant after having been promoted as a Grade-III Officer was proceeded against departmentally whereupon an inquiry was conducted into the matter and he was dismissed from service. The appellant filed a departmental appeal and ultimately approached the learned Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, which vide order, dated 23-6- 2001 overruled the objection of the respondent-Bank regarding the maintainability of the grievance application as it found that the appellant was a workman, however, the matter was not decided on merits. The respondent-Bank even on such limited findings approached the learned Sindh High Court in Revision Application No,1 of 2003 which was allowed.
4. Mr. M.M. Aqil Awan, learned senior Advocate Supreme Court, appearing for the appellants has firstly addressed the issue of limitation as such objection had been taken by Mr. Mehmood Abdul Ghani, learned senior Advocate Supreme Court, appearing for the respondent-Bank and which has been recorded in the order passed by this Court on 21-12-2006 and 23-10-2008. According to Mr. M.M. Aqil Awan, in labour and service cases the subject-matter of the dispute between the parties can never be quantified in terms of Article 185(2)(d) and (e) of the Constitution. Hence only a leave to appeal is competent in terms of Article 185(3). Secondly, learned senior Advocate Supreme Court submitted that the main .Prayer of the appellants before the learned Labour Court was reinstatement which can never be the subject-matter of the dispute or a claim in property as envisaged by Article 185(2)(d) and (e) of the Constitution calculable in terms of monetary value in the sum of Rs,50,000. For this proposition he has cited State of Bihar v. D.M. Ganguli AIR 1958 Patna 26 and S.M. Rukmani Bai v. Joshi Ram AIR 1950 Allahabad, 242. Alternatively he has submitted that the subject-matter of the dispute means the market value of the property at the time of filing the claim before the relevant Court which admittedly was much less than Rs,50,000 even if the back- benefit of the appellants were taken into account. In this regard he has relied upon Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875.
5. Learned senior Advocate Supreme Court's next contention is that the decision of this Court in Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, is per incuriam since therein the issue whether the subject-matter should be over Rs,50,000 was never considered and conclusion was reached that where the High Court reverses the finding of the Labour Court, then in terms of Article 185 (2)(d) an appeal is only competent. Finally he has argued that even if this Court comes to the conclusion that the aforementioned Article would apply and a direct appeal is competent then filing of a Leave to Appeal Petition can be condoned as a genuine mistake and hence the issue of limitation decided in favour of the appellant. For this proposition he has relied upon Sardar Abdul Rauf Khan v. Land Acquisition Collector 1992 SCMR 1181, Haji Muhammad Saleem v. Khuda Bux PLD 2003 SC 315, Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84; Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371., Mst. Shahnaz Akhtar v.
Zarina Chughtai 2004 SCMR 729; Messrs MacDonald Layton Construction Ltd. v. Punjab Employees Social Security Institution PLD 1991 SC 1055 and Sardar Abdul Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164.
6. On the merits of the case Mr. M.M. Aqil Awan, has submitted that the learned High Court in all three cases has erred in law by holding that the burden of proving that they are workmen lay upon the appellants. According to him, in fact it is upon the employer as Standing Order Ordinance, has been amended in 1997 to this effect. Secondly learned senior Advocate Supreme Court, had submitted that sufficient evidence has been placed on the record to establish that the appellants were workmen which was never countered in cross-examination by the respondent-Bank. In this regard he has referred to the case of Mahmood Hussain Larik (Civil Appeal No,697 of 2005) wherein, in his affidavitin-evidence before the learned Labour Court, he has described himself as an Accountant and the nature of his work to maintain ledgers, issuing cheques/pay orders etc., which was purely clerical in nature whereas this factual position has not been countered in his cross-examination. According to learned Advocate Supreme Court, the same is true in the case of other appellants viz. Muhammad Khan Abro and Ahmed Ali vis-a-vis the nature of their respective duties. In support of his submission, learned Advocate Supreme Court has relied upon Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani 1979 SCMR 304, Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani PLD 1975 Kar. 342; Allied Bank of Pakistan v. Muhammad Humayun 1988 SCMR 1664; Yousuf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630, Allied Bank v. Abdul Karim 1993 PLC 412, National Bank v. Punjab Labour Court No,7 1992 SCMR 1891 and Zakaullah Khan v.
Muhammad Aslam 1991 SCMR 2126.
7. Mr. Mehmood Abdul Ghani, learned Advocate Supreme Court, appearing for the respondent- Bank has submitted qua limitation that all the appellants have prayed before the learned Labour Court for reinstatement along with back-benefits. According to him at the time when the applications were filed before the learned Labour Court, the back-benefits of the appellants exceeded Rs,50,000 as all of them were drawing more than Rs,15,000 per month, hence the present cases are covered under Article 185(2)(d) as a learned High Court has set aside the order of the Labour Court. Consequently an appeal as of right was maintainable whereas the appellants filed Leave to Appeal Petitions and hence time-barred. Further learned senior Advocate Supreme Court has asserted that to date no application for condonation of delay has been filed by the appellants and hence the same could not be done on mere oral submission. In support he has relied upon Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875, Messrs Qureshi Salt and Spices Industries, Khushab and others v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353, Mullah Ahmed v. Assistant Commissioner, Sibi and 7 others 1986 SCMR 1624, Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371. Miss Rahat Afroze v. State Life Insurance Corporation and others 2007 PLC (C.S.) 207, (i) Water and Power Development Authority through its Chief Engineer v. Saadullah Khan and others (ii)Water and Power Development Authority through its Director Headquarters v. Syed Zahid Hussain Shah and others 1999 SCMR 319.
8. As to Mr. M.M. Aqil Awan's submission that this Court could convert a petition for Leave to Appeal into an Appeal, Mr. Mehmood Abdul Ghani, has stated that this could not be done while exercising suo motu powers vis-a-vis condonation of delay. For this proposition he has cited Mullah Ahmed v.
Assistant Commissioner, Sibi and 7 others 1986 SCMR 1624, Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33, Miss Rahat Afroze v. State Life Insurance Corporation and others 2007 PLC (C.S.) 207 and Messrs Qureshi Salt and Spices Industries, Khushab and others v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353.
9. On the merits of the case learned senior Advocate Supreme Court has submitted that the burden of proving the status of a workman is on the person who asserts the same. In the present case, apart from a mere blanket assertion that they were workmen the appellants had not adduced any evidence to support the same. Learned senior Advocate Supreme Court has further submitted that an Officer Grade-III working with the respondent-Bank is not a workman as per the service rules. In support of his submissions he has relied upon Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511, Managing Director, Shahi Bottlers (Pvt.)
Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488, Ganga R.
Madhani v. Standards Bank Ltd. And others 1985 SCMR 1511, Rana Mukhtar Ahmed v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118, Sabir Mehmud Bhatti v. General Manager, Pearl Continental Hotel and another 2001 PLC 689, Akhtar Hussain v. Chairman, Punjab Labour Appellate Tribunal and 3 others 1996 PLC 714, Zubair Ahmed v. Sindh Labour Appellate Tribunal, Karachi and another PLD 1985 Kar. 760, Maqbool Hussain Qureshi v. The Federal Government of Pakistan PLD 1986 FSC 1, Malik Ehtesham-ul-Hassan v. The President, Muslim Commercial Bank Limited (Civil Appeal No,1710 of 2005), National Bank of Pakistan v. Punjab Labour Court No,5, Faisalabad (Civil Appeal No,206 of 1988).
10. In order to appreciate the contentions of both the learned Advocate Supreme Court vis-a-vis limitation, it would be beneficial to reproduce Article 185 of the Constitution, which reads as follows:--- "185 Appellate jurisdiction of Supreme Court.--- (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court---
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or on revision, has enhanced a sentence to a sentence as aforesaid; or
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or
(c) if the High Court has imposed any punishment on any person for contempt of High Court; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of (Majlis-e-Shoora (Parliament)) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court leave to appeal."
11. A bare reading of the aforementioned provisions of the Constitution relevant to the facts of the case at hand would indicate that an appeal would lie to this Court as of right if they are covered under Article 185(2) (d) and (e) for which the limitation is 30 days. Obviously if they were not so covered then leave to appeal has to be sought from this Court in terms of Article 185(3) for which limitation is 60 days per the rules.
12. Upon reading Article 185(2)(d) and (e) it would be seen that essentially Sub-Article (2)(d) contemplates a monetary claim being the subject-matter of the dispute between the parties in the Court of first instance which should at least be in the sum of Rs,50,000 whereas Sub-Article (2)(e) contemplates dispute in respect of property of the same value. Of course in both cases, the further requirement is that the High Court must have set aside or varied the judgment etc. Of the Court immediately below. It would further be seen that such provisions have been borrowed from sections 109 and 110 of the Civil Procedure Code, which previously regulated appeals to this Court from the judgments and decrees of the High Court. Obviously since the Civil Procedure Code essentially dealt with controversies of a civil nature between the litigants the wording of sections 109 and 110 also contemplated civil suits as such. Hence, it would be prudent to conclude that Article 185(2)(d) and (e) are also confined to civil disputes between the litigants respecting money claims or property disputes. In this regard reference can be made to the case of Muhammad Inayat and others v. Fateh Muhammad and others (supra) wherein this Court has held that the expression used in section 109 i,e, the amount of value of the subject-matter of the suit is identical therefore, interpretation of these provisions of the Civil Procedure Code earlier made would be applicable to the relevant clauses (d) and (e) of Article 185 of the Constitution. In that case the controversy was whether the expression subject-matter of the dispute in the Court of first instance meant the valuation fixed in the plaint or the actual market value thereof. After considering a number of cases on this point this Court came to the conclusion that in fact the term subject- matter of the dispute meant the market value of the property. In these circumstances, we are of the opinion that cases like the present one involving labour disputes and for that matter service cases, cases arising from the rent jurisdiction or family disputes where the main prayer is of restoration in service, eviction of the tenant on various grounds or dissolution of marriage/custody of minors etc., respectively it cannot be said that any value could be given to the subject-matter of the dispute or for that matter to a claim respecting property, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the Court of first instance and in an appeal. Reference in this regard can also be made to the case of State of Bihar v. D.M. Ganguli and S.M. Rukmani Bai v. Joshi Ram (supra) which are cited by Mr. M.M. Aqil Awan, learned senior Advocate Supreme Court. Insofar as the case of Allied Bank Limited v. Mujeebur Rehman Qazi and others, wherein a Division Bench of this Court has come to the conclusion that in terms of Article 185(2)(e) of the Constitution a direct appeal would lie to this Court as the High Court reversed the judgment of the Sindh Labour Court, we can only observe that the learned Bench was not properly assisted in the matter and hence, the finding therein is per incuriam as the test is two-fold i,e, the subject-matter or property in dispute must be Rs,50,000 or more and the High Court must have set aside or varied the lower Court judgment etc. Consequently, we would hold that no direct appeal as of right could be filed in these matters as the first pre-condition of the subject-matter or property in dispute could not be quantified although the High Court had set aside the order of the Labour Court and hence the appellants correctly filed petitions for leave to appeal which were within time being within 60 days of the impugned orders passed by the learned Sindh High Court.
13. As we have come to the conclusion that petitions for leave to appeal were properly filed by the appellants, we do not deem it necessary to discuss the submission of both the learned Advocates Supreme Court vis-a-vis condonation of delay etc.
14. Coming now to the issue whether or not the appellants were workmen, it would be seen that in the West Pakistan Standing Orders Ordinance, per section 2(i) a workman has been defined as any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or award. Similarly in the Industrial Relations Ordinance, 2002, the definition of a workman/ worker covers any person not following within the definition of employer who is employed including employment as supervisor in an establishment or industry for hire or reward etc. Conversely in said Ordinance an employer in relation to an establishment has been defined to mean any person or body of persons whether corporate or not who is a workman under the establishment under a contract of workmanship and includes inter alia, any person responsible for the management and supervision and control of the establishment. It is settled law that the test to determine whether a person is a workman is the nature of the work done by him and not his designation or title etc. In the present cases, admittedly all the appellants have been designated as Officer Grade-III. In the case of Mehmood Hussain Larik (Civil Appeal No,697 of 2005), he has stated in para.12 of his affidavit-in-evidence that his duties included maintenance of Ledgers, Cheque Books, and Registers, preparation of Pay Orders/Demand Drafts and doing similar clerical work and that he has no powers to hire and fire. However, under cross-examination he has admitted that in the respondent-Bank Officers of Grade I, II and III do managerial and supervisory work. Also that he was the Accountant of the Branch and that in any branch there is one Manager and one Accountant under whom different workers use to work but he did not remember how many workmen were working under him in his branch viz. Kotri. He has admitted that in Shahi Bazar Branch 20 workers were working and in the Market Branch 26 workers were working. In view of such admissions in cross-examination, we are of the opinion that the duties of this appellant Mehmood Hussain Larik, were certainly not manual or clerical in nature. He was the Accountant of the branch and Officer Grade-III and used to supervise a number of workers. Hence, in our opinion, this appellant incorrectly approached the learned Labour Tribunal for relief. Consequently, Civil Appeal 697 of 2005 is dismissed.
15. Taking up the case of the appellant Muhammad Khan Abro (Civil Appeal No,698 of 2005), it would be seen that apart from making a bare statement in his affidavit-in-evidence filed before the learned Labour Court that he is a workman, no factual details of the work which he did in the respondent-Bank have been given. However, under cross-examination the appellant has admitted that Officers of Grade-I, II and III were posted in managerial positions in the respondent-Bank.
Similarly respondent's officer Muhammad- Rafiq Dossani, in his affidavit-inevidence has stated that this appellant was lastly working in the bank as Officer Grade-III in the Managerial cadre and was not member of any Trade Union or Workmen's Union which is registered with the NIRC. The main and primary duties of this appellant were supervision and control. Under cross-examination this officer has stated that according to Roster of Duties of the appellant he was supposed to deposit targets allotted by the Manager from time to time, cash receipts, transfer stamps and supervise other workers allotted by the Manager/Accountant. Similarly, the other officer of the respondent-Bank who recorded his evidence Ghulam Akbar Memon, has stated in his affidavit-in- evidence that this appellant was not doing any manual or clerical work as his main and primary duty, as this was assigned to the Clerks and Officers Grade-III are posted as Managers in the Branch and they are overall incharge of the Branch. He also performed the functions of signing, paying slips, vouchers, debt vouchers and credit vouchers, collection of transfer bills, Cheque Books as well as Demand Draft etc. Under cross-examination he has been asked no question vis-a-vis the nature of this appellants' work.
16. In view of the foregoing evidence of the record, it cannot be said that this appellant was merely a workman doing any manual or clerical work, consequently, in our opinion his grievance application before learned Labour Court was misconceived, and hence Civil Appeal No,698 of 2005 is also dismissed.
17. Finally taking up the case of appellant Ahmed Ali, in Civil Appeal No,699 of 2005, in his affidavit- in-evidence again only a statement has been made in para.12 thereof that he is a workman and nothing has been stated regarding the nature of his duties. Under cross-examination he has admitted that Officers Grade-I, II and III working with the respondent-Bank were posted as Managers of branches and they had supervisory duties whereas the clerical staff used to do the clerical work assigned to them. Nazir Hussain Channa, an officer of the respondent-Bank has also in his affidavit-in-evidence stated nothing about the nature of the appellant Ahmed Ali's duties.
However, under cross-examination he has stated that according to Roster of Duties vis-a-vis the appellant he was supposed to achieve targets allotted by the Manager from time to time and supervise other workers as per the directions of the Manager, etc. He has filed Roster of Duties of the various officers in the relevant branch of the respondent-Bank.
18. In view of the evidence placed on record again it cannot be said that this appellant was only performing manual work as the nature of his duties demonstrate otherwise. Hence, we would again conclude that he is not a workman and the learned Labour Court had no jurisdiction to entertain his application under section 25-A. Consequently, Civil Appeal No,699 of 2005 also fails.
19. As we have come to the conclusion that all the appellants incorrectly, approached the learned Labour Court not being workmen, there is no need to address the merits of the case vis-a-vis their dismissal from service.
' I agree (Sd.) Zia Perwez, J
20. I have recorded a separate dissenting opinion.
(Sd.) Sabihuddin Ahmed, J ' SABIHUDDIN AHMED, J.--- With profoundest respect I find myself unable to subscribe to the conclusions by my learned brother (Sarmad Jalal Osmany, J.) in respect of questions raised and dilated upon in these appeals and I am, therefore, persuaded to record my own views.
22. In the first instance, I find a great deal of force in the contention of Mr. Mehmood Abdul Ghani, learned counsel for the respondents to the effect that the impugned order of the Honourable High Court was liable to be assailed through an appeal as of right under Article 185(2)(e) of the Constitution and not through a petition for leave to appeal under Article 185(3). For the purpose of appreciating the controversy it may be appropriate to keep in view the relevant Constitutional provisions which read as follows:---
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court---
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or on revision, has enhanced a sentence to a sentence as aforesaid; or
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or
(c) if the High Court has imposed any punishment on any person for contempt of High Court; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Majlis-e-Shoora (Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the. Constitution.
23. A careful reading of various clauses of Article 185(2) shows that the Constitution basically confers a right of appeal either when the High Court has acted as a Court of Original Jurisdiction [(as in cases of clauses (b) and (c)] or when it certifies that a case involves a substantial question of law as to the interpretation of the Constitution [(clause (f) and otherwise when it varies the findings of the Courts immediately below in criminal cases involving severe punishment and in civil matters where relatively high stakes of the parties are involved. The emphasis apparently being on the absence of concurrence between the High Court and the Court immediately below, the relatively high stakes of the parties and when the High Court acted as the Court of first instance. In all other matters appeals can be entertained only through the leave of this Court which is granted in its discussion and cannot be claimed as of right.
24. It needs to be emphasized that in all matters not covered by Article 185(2) the Constitution does not confer a right of appeal upon the party aggrieved by the judgment of the High Court. It only confers a discretion upon this Court to grant leave to appeal to enable this Court to lay down correct principles of law under Article 189 or perform its duty to do complete justice in a matter under Article 187. Well-known precedents show that leave is normally granted only to decide important questions of law or could even be refused if the interests of justice are not fostered by its grant.
25. Keeping in view that the remedy by way of "right" to appeal to this Court is only granted in terms of Article 185(2) its provisions ought to be treated liberally as those advancing remedies in accordance with well-known canons of interpretation. They are designed for the benefit of citizens as is evident from clauses (a) to (c) showing that no right is available against a judgment of acquittal. Against the above principle I find myself entirely unable to subscribe to the facile construction of clauses (d) and (e) of Article 185(2) suggested by Mr. M.M. Aqil Awan to the effect that the former deals with monetary claims only and the latter to claims relating tangible property alone. This would mean that in several other matters where the stakes of the parties are far higher than Rs,50,000 and the final judgment of the High Court has reversed that of the Court below the aggrieved party would have no right to appeal to this Court. Such discrimination in my humble view could not be attributed to the Constitution-makers.
26. I am also unable to subscribe to the view that aforesaid clauses (d) and (e) are applicable only to proceedings arising from civil suits. By that token, an appellate order of the High Court passed in an appeal under section 39(1)(vi) of the Arbitration Act setting aside the award involving millions of rupees could not be questioned by way of appeal to this Court despite the fact that the amount involved is far higher than Rs,50,000 and the High Court has reversed the judgment of the Court below. Apart from the fact that there seems no rational basis for such distinction section 39(2) of the Arbitration Act explicitly stipulates that no second appeal shall lie from an order under this section but nothing shall effect or take away any right to appeal to the Supreme Court. In other words it pre-supposes the existence of such right. In the case of Wajid Ali through L.Rs, v. Syed Sajid Ali through L.Rs, reported in 1985 SCMR 401 an appeal against the final order of the High Court directing that an award be made rule of the Court was entertained by a Full bench of this Court under Article 185(2)(e) and Shafi-urRehman, J. Repelled the objection as to its maintainability.
27. Indeed Mr. M.M. Aqil Awan is correct to the extent that the language of clauses (d), (e) and (f) of Article 185(2) is identical' to the provisions of section 109, C.P.C. However, the assumption that these Constitutional provisions were borrowed from the C.P.C. Is not quite correct. On the contrary the pre-constitutional provisions of sections 109 and 110, Cr.P.C. Have been faithfully reproduced in the judgment of this Court in the case of Muhammad Inayat and others v. Fateh Muhammad and others reported in 2003 SCMR 875 in the following terms:- "109 Subject to such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of Pakistan, and to the provision hereinafter contained, an appeal shall lie to the Supreme Court---
(a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;
(b) from any judgment, or final order passed by a High Court in the exercise of original civil jurisdiction;
(c) from any judgment, decree or final order, when the case, as hereinafter provided is certified to be a fit one for appeal to the Supreme Court.
110. In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards.
' Or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value, ' And where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal must involve some substantial question of law."
28. It needs to be- noticed that the above provisions were substantially different from those contained in existing Constitutional provisions. Under section 109 and the first para. Of section 110 a right to appeal was available against all judgments not merely of the High Court but any other Court of final jurisdiction, whether affirming or reversing the judgment of the Court below provided that either the "amount or value" of the subject-matter before the Court of first instance and in appeal exceeded a particular sum. Under paras.2 and 3 of section 110, the right of appeal was also available in cases where questions directly or indirectly involving property of such sum existed but only if the impugned judgment varied the judgments of the Court below or some substantial question of law was involved. In either case the further clog was that both these provisions were subject to rules made by the Supreme Court, while a right conferred by the Constitution cannot be subjected to any sub-constitutional restrictions.
29. Nevertheless even on the hypothesis of the provision of C.P.C. The contention of learned counsel in my view appears to be self-defeating. The C.P.C. Obviously does not apply to all civil suits and it is conceivable that a suit could be filed without having any "subject-matter" containing certain "value". Indeed, the jurisdiction of Civil Courts to entertain suits itself depends upon either the "amount" or the "value" of the subject-matter as is evident from section 6. Section 9 provides that unless expressly or impliedly barred all suits of civil nature are triable by Civil Courts and the explanation clarifies that not merely a right to property but also a right to an office can be decided in a civil suit. The Specific Relief Act explicitly ordains that suits seeking declaration as to legal character are also maintainable before a Civil. Court. One is conscious of the fact that prior to the existence of constitutional remedies civil servants would almost invariably question their removal from service through declaratory suits filed in civil suits as is inter alia evident from the well-known case of Noorul Hassan v. Federation of Pakistan reported in PLD 1956 SC 331. I am, therefore, unable to reconcile to the proposition that there could be a suit justiciable before a Civil Court without any quantification as to the value of its subject-matter.
30. Indeed where a suit does not involve a specific amount different methods for its valuation for the purpose of jurisdiction of a Court have been provided by the law itself. The Suits Valuation Act, 1887 is a statute which provides how value of the subject-matter in respect of certain suits not involving monetary claims is to be determined for the purpose of conferring pecuniary jurisdiction upon Courts to try them. Indeed in certain cases such valuation is left to the plaintiff's discretion. In such cases the determination of the forum of trial or appeals may be premised upon such valuation. Reading the pre-Constitutional provisions of sections 109 and 110, C.P.C. In the above context, however, it appears that with respect to appeals to the apex Court the Legislature consciously intended that a right of appeal should not be destroyed merely on account of technical modes of valuation or the personal choice of one of the parties by effecting valuation in his discretion. It is with this object that section 110 contemplated that an appeal be maintainable not merely when the amount or value of the subject-matter before the original Court exceeded a certain amount but also where even an indirect claim in respect of property exceeding such amount was involved.
31. Mr. M.M. Aqil Awan referred to the following observations of this Court in the case of Muhammad Inayat and others (supra) that a right of appeal was only available when tangible property was involved. After relying upon inter alia the cases of Rai Kumar v. Resh Behari Mandal AIR 1931 PC 125 and State of Maharashtra v. Mishi Lala Tarachand AIR 1964 SC 457. Their Lordships observed as follows:--- "In our view also, the expression "subject-matter of dispute in the Court of first instance" in clauses
(d) and (e) means that market value thereof at the time of institution of the suit and also filing of appeal before this Court should be more than Rs,50,000 and not the "valuation" fixed in the plaint".
32. A careful reading of the judgment however shows that their Lordships were not concerned with the distinction between clauses (d) and (e) of Article 185(2) or the first and the second paragraphs of the erstwhile section 110. Basically what they held was that the appellant was entitled to file an appeal as of right against a judgment of the Courts below where rights of pre-emption regarding immovable property were in issue. Their Lordships correctly held that sections 109 and 110 were subject to rules framed by the Supreme Court and entertainment of an appeal was, therefore, dependent upon Order XII, rule 1 read with Forms 13 and 14 of the sixth Schedule to such rules. In any event the above quoted observations clearly indicate that the subject-matter of any dispute is always quantifiable in monetary terms. Moreover, reliance of the Court on a certificate relating to clause (d) in the context of a matter relating to rights in immovable property clearly dispels the impression that only clause (e) was held applicable to such cases.
33. The excerpt quoted by Mr. Awan read in the context of the judgment, in my humble view, does not support the contention advanced by him. On the contrary by referring to both clauses (d) and
(e) of Article 185, all their Lordships intended to say was that if by application of some technical mode of evaluation, the subject-matter of the dispute in the Court of first instance was shown to be less than Rs,50,000, a direct appeal against the judgment of the High Court reversing that of the Court immediately below would be clearly entertainable. With profound respects however, when the right to appeal was available under constitutional provisions, such view could only be taken on the basis of the wider language of clause (e) and not the Rules of this Court.
34. These provisions however, became dormant upon the enforcement of the 1956 Constitution which itself contained provisions relating to appeals to this Court. Indeed that Constitution as well as those of 1962 and 1972 (interim) did not contain provisions regarding right of appeal in civil matters and as such they could only be entertained through leave of the Court. It was only the 1973 Constitution, which permitted appeal as of right in civil cases as well under clauses (d) and (e) of Article 185(2). The constitutional right was not subjected to any sub-constitutional conditions i,e, those required' by the Supreme Court rules or any other legislation. However, the right of appeal was whittled down to the extent that only appeals against judgments of High Court could be entertained unless provided elsewhere in the Constitution itself. As regards the types of cases falling in the first category mentioned in the preceding paragraph, the pre-condition of variation of the judgment of the Court below by the High Court was imposed. With respect to the second category the mere involvement of a substantial question of law in a judgment affirming the decision of the Court below was not considered adequate. In such cases leave to appeal had to be obtained unless the question pertained to the interpretation of the Constitution itself and the High Court had certified it to be so. It was only after the enforcement of the Constitution that section 109, C.P.C. Was amended and section 110 repealed through the Federal Adaptation of Laws Order, 1975 in fulfilment of the obligation under Article 268(3).
35. Coming to the existing constitutional provisions, the contention that clause (d) of Article 185(2) of the Constitution is only relateable to monetary claims appears ex facie untenable in that the words "amount or value" are not identical. Indeed all claims relating to any right or interests in tangible property are to be adjudicated upon through suits and value of the subject-matter is to be determined in accordance with various statutory provisions. I am, therefore, unable to conceive of a situation where a claim before a Civil Court does not contemplate a "value" of the subject- matter. Therefore, clause (d) of Article 185(2) in itself covers not merely monetary claims but all other claims where the value of the subject-matter in the Court of first instance and in subsequent proceedings in appeal exceeds Rs,50,000.
36. It now needs to be determined what clause (e) of Article 185(2) entails. The assumption that it is only relateable to tangible property appears untenable in view of the definition of the expression "property" contained in Article 260 of the Constitution itself to "include any right, title or interest in property moveable or immovable and any means and instruments of production". In all classical textbooks of Economics land, labour, capital and entrepreneurship are defined as means of production. Moreover, the word "includes" indicates that even this broad definition is not exhaustive.
In any event a person's work, skill or experience by which he earns his livelihood would be clearly covered by the expression "means and instruments of production". Obviously the aforesaid widely worded definition would be applicable to the expression property occurring in Article 185(2)(e) which itself not merely relates to a particular right as to property but also covers any claims or question directly or indirectly respecting property of the amount or value exceeding Rs,50,000.
37. A comparison of the definition of the expression "property" occurring in Article 242 with the above mentioned Article 260 would show that the words "means and instruments of production" were consciously included in the aforesaid definition of the expression for the first time in the present Constitution. This clarification appears to be premised upon the recognition of the concept in contemporary jurisprudence that several important rights and interest emerging from the functioning of a modern welfare State may be far more valuable to an individual as compared to ownership of money or tangible goods or immovable property which were treated as property in classical terms. In an interesting Article "The New Property" by Charles A. Reich 'published in Yale Law Review in 1964, the author contends that several new forms of wealth are emerging which may be far more precious to an individual as compared to classical forms of tangible property in the form of social benefits, occupational licenses, employments, franchises, contracts and other forms of State largess. Illustrating his point the author argues that an individual's profession or employment may be far more valuable than his house or bank account as a new house could always be bought account created once his profession or job is secured. Likewise franchises of an automobile dealer acquired from a manufacturer through a contract giving him exclusive distributing rights within a territory may be far more valuable than the stock in his possession. The author concludes by stating that it is necessary for an individual to survive in a collective society that the right to property must be given an expanded meaning.
38. The above principle appears to have been acknowledged by our legal system with the expanded meaning of the expression "property". The development of case-law shows that several benefits which were treated as privileges in the classical sense came to be recognized as legal rights and Courts of law have evolved means to protect them. The expression "property" has not been defined in the Indian Constitution. Nevertheless it might be pertinent to consider two important cases decided prior to 1955 (when the right to property was severely impaired) namely Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Company Ltd. And others AIR 1954 SC 119 and The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, where the import of the expression "property" was examined. In the first case it was observed that the said expression must be construed in the wider sense as connoting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both Corporeal and incorporeal rights. It was held that a contract or agreement which a person may have with the company which is cancelled by the Directors under statutory powers would clearly amount to deprivation of property. In the second case decided by a seven member Bench, the Court held that the expression covers both concrete and abstract rights of property and forfeiture of the rights of Mahant of a temple to enjoy beneficial interests in an endowment during the continuance of his office would constitute deprivation of property. Our Constitution makers, therefore, appear to have consciously expanded the concept of property in terms of Article 260 and there appear no reasons to ignore the same.
39. From the above the irresistible conclusion that I have been able to draw is that clause (e) of Article 185(2) is only intended to extend the scope of the right of appeal to cases not covered by clause (d). Indeed, the pre-condition that the judgment or order of the High Court should have modified that of the Court below is attached to both clauses, the former is further hedged by another pre-condition that the amount involved or the value of the subject-matter both in the Court of first instance and in appeal must exceed Rs,50,000. It is consequential what was the nature of right adjudicated upon. The ambit of clause (e) however, is much larger inasmuch as irrespective of the value or amount involved in the Court of first instance an appeal would lie when any claim in respect of property as defined in Article 260 whether directly or indirectly is involved.
There is nothing to indicate that the expression "property" ought to be given a restricted connotation contrary to the definition contained in the Constitution. It may well be that clause (d) is only attracted to cases where a certain amount is involved or in the subject-matter of the dispute is valuated in the Court of first instance no such condition however, applies for invoking the right of appeal under clause (e).
40. The above distinction can be best illustrated by a judgment of this Court in the case of Ajiruddin Mondal and others v. Rahman Fakir and others reported in PLD 1961 SC 349 wherein the plaintiffs claiming to be 75 per cent. Sharer in joint possession of a property valued at Rs,5,350 filed a suit for partition of their shares which was dismissed by the trial Court. An appeal was preferred before the Dhaka High Court, which was under the relevant law competent to entertain appeals where the value of the subject-matter, exceeded Rs,5,000 and otherwise before the District Judge only. The High Court returned the memo. Of appeal to be presented before the competent Court holding that the value of the subject-matter, being the extent of the plaintiffs' 75 per cent. Share in the property, was less than Rs,5,000. On further appeal this Court by majority affirmed the findings of the High Court and dismissed the appeal. Cornelius, C.J. However, took a contrary view and observed that the value of the subject-matter ought to be the value of the entire estate. Taking the majority opinion as binding law I have referred to the facts of this case to illustrate the point involved. Since the jurisdiction of the High Court to entertain appeals was only premised on the question of "value of the subject-matter" their Lordships were able to uphold the order returning the memo. Of appeal. Nevertheless if a provision similar to clause (e) was also available their Lordships would have found the appeal to be maintainable merely because it related to a claim with respect to property the value whereof exceeded a certain amount.
41. I am certainly conscious of the prevailing practice that most of the litigation in this Court is initiated through leave petitions and apprehensions that upon the above interpretation the work load of this Court might substantially increased. Nevertheless I am clearly of the view that expediency should never be a consideration for interpreting a constitutional provision conferring rights upon citizens. Even the rule of "stare decises" is not applicable in matters of Constitutional rights with the same strictness as held In Asma Jehangir v. Province of Punjab PLD 1969 SC 139. No doubt it is desirable that most disputes ought to be resolved at the lower tiers judicial hierarchy. At the same time what needs to be kept in view is that the right of appeal under Article 185 (2)(e) is available only when the High Court has varied or reversed the judgment of the Court immediately below and not when it has affirmed it. Article 37(d) contained in the principles of policy which have been described as the conscience of the Constitution by this Court in the epoch-making judgment in the case of Benazir Bhutto v. Federation of Pakistan and another reported in PLD 1988 SC 416 only speaks of the commitment to ensure expeditious and inexpensive justice and does not confer any special sanctity upon adjudications by the High Courts. Therefore, it might be against the spirit of the Constitution to overlook the opinions of the Court immediately below the High Court and impose a seal of finality over that of the latter.
42. It also needs to be considered that no substantial variation of the work lord is likely to take place inasmuch as Order XII, Rule 5 of this Court confer a discretion upon the respondent to file or not to file objections and an appeal can be listed for hearing immediately thereafter. On the other hand a petition under Article 185(3) could only lie on points of law and the merits cannot be considered except for the purpose of explaining the grounds as is evident from Order XIII, Rule 2. I may add that the practice of liberally granting leave to appeal on merits against concurrent findings of Courts below might not be consistent with the ethos of the Constitution.
43. In the facts of the instant appeals admittedly the appellant in C.A. No,697 of 2005 was dismissed from service on 22-1-1998. He moved an application before the Labour Court seeking reinstatement with all consequential benefits on 12-5-1998. He admittedly claims is emoluments to be Rs,15,000 per month. As such even in monetary terms the amount claimed by him on the date of the application exceeded Rs,50,000. Even in other cases the value of relief exceeded the amount of Rs,50,000 on the day the order of Labour Court was passed. I am unable to ignore relief of consequential benefits by assuming that it was merely incidental to the main relief and could be overlooked. By that token in all suits for declaration and consequential relief the nature of the relief would have to be ignored upon which, in most situations, the valuation of a suit depends. I am, therefore, clearly of the view that the impugned order of the High Court could be questioned by way of an appeal under Article 185(2)(e) of the Constitution and as such concur with the view taken in the case of Allied Bank Limited v. Mujeebur Rehman Qazi and others reported in SBLR 2006 SC 33 to the above extent.
44. Mr. M.M. Aqil Awan, learned counsel for the appellant alternatively argued that if this Court was of the view that only an appeal and not a petition under Article 185(3) ought to be filed it could always treat the petition as an appeal and condone the delay on grounds of bona fide mistake as to the state of law. He urged that the view taken by two Members Bench in the case of Allied Bank Limited (supra) was somewhat harsh and did not take note of all aspects of the matter. In support of his contention learned counsel relied upon certain decisions of three members Benches of this Court in the cases of (i) Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315, (ii) Sardar Abdul Rauf Khan and others v. Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1992 SCMR 1181, and (iii) Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621. In these cases it was held that if a leave petition under Article 185(3) was filed within period of limitation prescribed for the same instead of filing an appeal within thirty days of the impugned order this Court could under special circumstances condone the delay and treat the leave petition as an appeal. In the case of Sardar Abdul Rauf Khan and others (supra) the Court went to the extent of holding that delay could even be condoned at the oral request of counsel.
45. Mr. Mehmood Abdul Ghani, learned counsel for the respondents on the other hand referred to the cases of Water and Power Development Authority through its Chief Engineer v. Saadullah Khan 1999 SCMR 319 and Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371 where the stricter view appears to have been taken and the Court declined to condone the delay. In the former case decided by a three Members Bench it was observed that no application for condonation of delay was preferred even after an objection to its maintainability was raised. In the latter a two Members Bench after considering the cases where delay had been condoned proceeded to observe that indulgence shown by the Court earlier was encouraging negligence and carelessness instead of breeding caution and therefore, it was not appropriate or desirable to continue to show such a lenient tolerant treatment.
46. From a consideration of the above judgments I am doubtful whether a clear principle of law has been laid down by this Court to create a binding precedent. Perhaps a larger Bench of the Court may be able to affirmatively lay down the law on this question. Nevertheless for the time being I am of the view that condonation of delay in such circumstances is a matter in the discretion of the Court which ought to be exercised keeping in view the facts and circumstances of each case coupled with the broader principles of law to be applied. It might be worthwhile to refer to the principle laid down by a larger Bench in the case of Nazar Muhammad and another v. Mst.
Shahzada Begum and another reported in PLD 1974 SC 22 that at times mistaken advice of counsel could be a valid ground for condonation though a distinction between a wrong advice on the basis of opinion founded in good faith and one arrived through negligence should always be maintained.
47. In the instant case two other features need to be kept in view. The fact that I have arrived a conclusion as to the maintainability of the appeal which is different from the one reached by my learned brother can be considered as a factor excluding possibility of negligence and filing of a leave petition seems to be premised on a good frith opinion formed by counsel for the appellant. It also needs to be kept in view that leave to appeal was granted by a Bench of this Court and their Lordships at that stage considered a leave petition to be maintainable. In the circumstances I am of the view that reasonable grounds for condonation of delay has been made out to enable us to adjudicate the matter in accordance with our duty under Article 187 of the Constitution.
48. As regards the merits of the controversy as well my view appears to be at variance with the one formed by my learned brother. Indeed a plethora of case-law was cited by learned counsel for the parties in support of their respective contentions and for their invaluable assistance we are extremely grateful. Mr. M.M. Aqil Awan referred, inter alia, to the pronouncements of this Court in the cases of (i) Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304, (ii) Allied Bank of Pakistan v. Muhammad Humayun 1997 SCMR 1630 and (iii) National Bank of Pakistan v. Punjab Labour Court No,7, Gujranwala and others 1992 SCMR 1891. In the first case the Chief Accountant of a corporate body was treated as a workman because he was required to take instructions from a superior officer in the performance of his duties. In the second case even a Manager of a Bank was held to be a workman for the purpose of the Industrial and Commercial Establishments (Standing Orders) Ordinance, 1968 (hereinafter referred to as "1968 Ordinance") on the ground that he was not answerable to the owner for supervision or control of a commercial establishment. In the third case this Court held that the respondent who was a Grade-III Officer in a Bank could not be taken out of the purview of the expression workman merely because he acted as Manager for a short while (when the alleged misconduct took place) but continued to perform his clerical duty as a Grade-III Officer. In the case of Yousaf Ali Shah v. Quetta Serena Hotel reported in 1997 SCMR 1630 the petitioner was working as an Assistant Manager in the hotel. This Court granted leave to appeal through an elaborate order to examine the question whether the definition of the expression "workman" contained in the Industrial Relations Ordinance (I.R.O. 1969) which was clearly different from the definition of the same expression in the Standing Orders Ordinance could at all be relevant when the employee complaining of removal from service in violation of the requirements of the 1968 Ordinance and approaches a Labour Court under section 12(3) by invoking the mechanism of adjudications of individual grievances under the I.R.O.
49. Mr. Mahmood Abdul Ghani, learned counsel for the respondent on the other hand referred to the large number of cases including the judgments of this Court in (i) Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511, (ii) Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488 and (iii) Ganga R. Madhani v. Standards Bank Ltd. And others 1985 SCMR 1511 which tend to support his point of view. It may be observed that in the last case this Court observed as follows:--- "A "workman" is employed in an industry to do skilled or unskilled work which is "manual" or clerical.
Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connote that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, central and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."
50. The reading of the above precedents cited by learned counsel for the parties tends to show (if I may say so with the profoundest respects) that no principle of law as to the precise scope of the expression "workman" has been laid down for the purposes of Article 189 of the Constitution. Only certain broad principles can be discerned and in this context I entirely agree with my learned brother that the designation accorded to an employee, the emoluments drawn and the kind of work which he may incidentally perform are irrelevant considerations. All that needs to be seen is whether the substantive part of the duties actually performed by him bring him in the fold of definition of "workman" contained in the law or, exclude him from such fold. Upon this consideration the Courts have arrived at their conclusions keeping in view the facts and circumstances of each case.
51. Keeping the above in view it cannot be overlooked as observed in the leave granting order that the respondents accorded all the rights available to workmen under the Standing Orders Ordinance by serving charge-sheets upon them and holding inquiries in accordance with the provisions of the Ordinance. They were not simply discharged upon the pretext of the so-called law of Master and Servant. Nevertheless once they were duly stigmatized on account of findings in the inquiry the plea of their not being workmen was raised only when they attempted to question such findings in the inquiry before a competent Labour Court. Viewing the matter in the context I am extremely doubtful if the appellants could, as a matter of law be found to be completely outside the definition of the expression.
52.. Be that as it may, in my humble view when the appellants have alleged violation of the requirements of the provisions of the Standing Orders Ordinance and sought enforcement of a right under S.0.12(3) only the definition of the expression "workman" contained in that Ordinance would be relevant and not the one contained in any other law. In fact, S.0.12(3) itself stipulated that only after a workman aggrieved by the action taken against him invokes the mechanism stipulated in section 25-A of the Industrial Relations Ordinance, 1969 Ordinance, provisions of the said section would apply as they apply to the redress of an individual grievance. Moreover, it makes little sense that when a person defined as a workman under the 1968 Ordinance is conferred certain rights under the Ordinance which also enables him to invoke remedies for enforcement of such rights, the remedy should become illusory merely because he does not qualify to be a workman under another statute. I, therefore, entirely agree with the observations of the three Members Bench made in' the leave granting order in the case of Yousaf Ali Shah (supra).
It may be pertinent to mention here that in the final judgment 2001 SCMR 1813 the appeal was dismissed because the IP appellant had chosen not to lead any evidence but the legal principle stated in the leave granting order was not demurred from.
53. The expression "employer" under section 2(c) of 1968 Ordinance means the owner of the establishment and includes a person responsible to the owner for supervision and control of the establishment. On the other hand, the definition of the expression "workman" under 1969 Ordinance apart from being substantially different, specifically excludes persons employed in managerial or administrative capacities but also those performing supervisory duties and drawing wages exceeding a certain amount. The rationale for excluding certain employees from the ambit of the definition of the expression "workman" in the 1969 Ordinance and not doing so in the 1968 Ordinance is not far to seek.
54. Under section 2(i) of the 1968 Ordinance any person employed in an industrial or commercial establishment to do any skilled or unskilled manual or clerical work for "hire or reward" has been defined to be a workman. Indeed, the 1969 Ordinance relates to formation of trade union settlement of disputes through collective bargaining and also confers a right to strike upon workmen. It is perfectly understandable that the Legislature in its wisdom considered it proper to exclude persons employed in managerial or supervisory capacity and deny them the privileges available to ordinary workers. On the other hand the Standing Orders Ordinance guarantees certain basic minimum terms of employment to persons employed in industrial or commercial establishments. There appears no rational basis for denying rights like protection against removal from service without cause to those working in slightly higher positions in the hierarchy of such establishments. Indeed most of the rights of such nature are available to civil servants upto the top of the hierarchy.
55. I anr fortified in my view upon a consideration of the provisions of the predecessor statute of the 1969 Ordinance namely the West Pakistan Industrial Disputes Ordinance, 1968 which was, incidentally promulgated on the same day as the Standing Orders Ordinance. In the aforesaid statute PLD 1968 W.P. Statutes 170 section (2)(u) defined the expression "workman" in the same terms as Standing Orders Ordinance but explicitly excluded persons working in managerial or administrative capacity from the definition of workman, though it was not done in the Standing Orders Ordinance. It is well-settled that when a statutory provision excepts certain persons or excludes from its purview it presupposes that such persons would be covered by the broad ambit of the provision itself but for the exception. The legislative intent therefore, appears manifest indicating that even persons employed in managerial or administrative capacity would fall within the broad ambit of the identical definition of workman in the two statutes but were excluded in one and not in the other unless of course if he is covered by the definition of employer.
56. In view of the foregoing with profound respects I am entirely unable to persuade myself to subscribe to the view that a person working in supervisory capacity would stand excluded from the definition of workman in the Standing Orders Ordinance. It is well-settled that the provisions of welfare legislation ought to be liberally construed. There seems no justification for denying the benefit conferred by law to persons working in supervisory capacity when the Legislature itself has not done so. I am, therefore, clearly of the view that performance of supervisory duties is entirely irrelevant for the purpose of excluding a person from the definition of workman under the Standing Orders Ordinance. It may also be pertinent to note that while persons performing supervisory duties and drawing monthly wages above Rs,800 were excluded from the ambit of the definition of workman under the Industrial Relations Ordinance, 1969 the present law on the subject has removed the clog and section 2(xxx) of I.R.O. 2002 only excludes persons employed mainly in managerial or administrative capacity.
57.. In my view, therefore, the controversy in the above appeal ought to be resolved strictly on the basis of the definition of the expression "workman" contained in the 1968 Ordinance in its plain natural sense and keeping in view the broad principles of interpretation of welfare statutes without importing restrictions borrowed from other laws. It needs to be kept in view that several statutes intended to confer benefits upon working people contain different definitions of the expression "workman" or worker depending on their respective context and tenor and are progressively moving towards extending benefits to employees. For instance, the restriction of the application of Payment of Wages Act to persons drawing wages not exceeding Rs,3,000 per month has been removed through an amendment effected in 2001 and it now applies to everybody working in a factory or industrial establishment.
58. Reverting to the present controversy it needs to be mentioned that the mere fact that a person supervises the work of another may not necessarily imply that he is not performing any manual or clerical work. Indeed a head clerk even while performing duties of a routine nature may be supervising the work of certain subordinates. Likewise some factory workers might be required to take orders from a foreman who is himself substantially performing manual work. These factors in my view would not excluded a head clerk or a foreman from the definition of workman.
' It is also important to keep in view that the expression "work" occurring in section 2(i) was substituted for the word "labour" through a substantive amendment effected by the section 3(d) of Labour Laws (Amendment Act) 1973 (Act XXIII of 1973). The word "labour" being generally used for the more onerous and inferior kind of work (Blacks Law Dictionary). The legislative intent to the effect that benefits of legislation were intended to be extended appears quite clear.
59. With profound respects I may further observe that the expression "clerical work" has been generally assigned a somewhat restricted connotation by some Courts, premised upon the colloquial view of the expression "clerk" existing in the colonial period relating to "natives". However from Wahrton's Law Laxicon it appears that originally this expression was applicable to a learned man in the clergy. In England even today the expression Clerk of Parliament Clerk of Court or Town Clerk are relateable to administrative officers exercising high level of discretion. Perhaps this concept may also require reconsideration.
60. Nevertheless for the purpose of these appeals even if the view taken in the case of Ganga R.
Madhani (supra) be taken as a binding precedent it needs to be kept in view that even in the observation quoted in para. 28 their Lordships observed that intellectual exertion was always involved in clerical work but it do not require any great amount of initiative, directions or control of the establishment. A careful reading of the judgment shows that while the appellant was performing clerical work but the power of attorney granted to him, inter alia, to buy and sell shares of joint stock companies and other securities, to purchase buildings for carrying on work of the Bank and to assign insurance policies etc. Were of such nature which would take him out of the purview of the definition of workman. Indeed assignment of such important functions of executive nature might make him answerable to the owner for the supervision and control of the establishment and bring him in the category of employer. The appellants simple designation as Grade-III officer was considered insignificant. In the cases before us however, upon the evidence, which has been appropriately analyzed by my learned brother, there seems nothing on record to indicate that any such level' of high discretion was conferred upon any of the three appellants. The law being that it is the nature of work being performed by a particular person is the only criteria for determining whether he is workman or otherwise the mere fact that other officers in the same grade were assigned managerial functions is entirely irrelevant. Likewise the question of membership of a trade union is also irrelevant because the right to join a union is conferred by another law. Interestingly, section 27-B of the Banking Companies Ordinance, which is a special law applicable to banks, a person not being a bank employee, is barred from becoming a member or officer of a trade union. Nevertheless the same law does not place any embargo upon employees of any grade or class from doing so.
61. Therefore, I am clearly of view that the appellants were workmen for the purpose in the Standing Orders Ordinance and the impugned judgment of the Honourable High Court holding otherwise requires to be set aside. Nevertheless, since no finding as to the merits of the orders of the Labour Court was recorded in Civil Appeals Nos.697-K and 698-K of 2005 both these appeals be remanded to the High Court for a decision on merits. As regards Civil Appeal No,699 of 2005, it appears that even the Labour Court did not pronounce judgment and the matter on the question of maintainability of the applications was raised before High Court in revision. In this appeal, therefore, the appellants' application before the Labour Court be deemed to be pending and be decided in accordance with law.
62. We must once against record our gratitude to Mr. Aqil Awan, learned counsel for the appellants and Mr. Mahmood Abdul Ghani, learned counsel for the respondents for their invaluable assistance.
(Sd.) Sabihuddin Ahmed, J ORDER OF THE COURT ' By majority of two to one, these appeals are dismissed with no order as to costs.
(Sd.) Zia Perwez, J