1. ' AJMAL M IAN, J. The brief facts leading to the filing of the above petition are that the petitioners were served with a notice of demand in 1978 under the Sind Workers Children (Education) Cess Ordinance, 1978 (hereinafter referred to as the Ordinance). Upon the receipt of the above demand notice, the petitioners filing the Constitutional Petition No, 870/78 challenged the above demand inter alia on the ground that some of the petitioners' employees were not covered by the definition of the worker given in the Ordinance. However, the above petition was dismissed in limine by a Division Bench of the Court by an order dated 17th June, 1978 (to which one of us was a party) on the ground that under the Education Cess Rules, an appeal was provided for before the Director Excise and Taxation and, therefore, the petitioners should first exhaust the alternate remedy in the form of the appeal. While dismissing the above writ petition the following observations were made :- "We are of the view that it is for the Director to apply his mind independently in case an appeal is filed before him to determine the workmen who come within the provision of the said Ordinance.
2. Furthermore, even in the letter from the Secretary to the Government of Pakistan Excise & Taxation Department it is not stated that the workmen drawing more than 12,000 per annum come within the said Ordinance. Since the question whether or not workmen employed with the petitioner- Company are covered by the Ordinance is a mixed question of fact and law the proper remedy for the petitioner is to take advantage of the appeal provided by the Statute."
2. It seems that after the dismissal of the aforesaid writ petition In limine, the petitioners filed an appeal before the Director (Collector) Taxes, i,e, the respondent No. 1, before whom it was urged that attendants, delivery peons, bill distributors, telephone operators, lift operators, drivers working with officers employees in the dispensary, watchmen and staff of security department were not covered within the definition of worker given in the Ordinance. However, the respondent No. 1 through the impugned order rejected the above contention and has held that every persons except those getting more than Rs, 1,000 per month as salary are workers for the purpose of the Ordinance. The petitioner being aggrieved by the above order have fixed the present petition, wherein they have prayed for the following reliefs : "(i) Declare that definition given in the Ordinance namely Ordinance XI of 1972 alone will determine the number of workers on which Cess under the said Ordinance is leviable on an employer.
(II) Declare that the Respondent No, l's interpretation of the definition of 'worker' in the said Ordinance No, XI of 1972 that it includes all employees receiving wages less than Rs, 1,000 p. m.
3. Irrespective of the nature of their duties is erroneous, invalid and ineffectual.
(iii) Declare that Education Cess is not loveable on the employees mentioned in Col. 2, para. 9(11) hereof namely sweepers, Chowkid are and security staff, drivers, peons, telephone operators, superintendents and Foremen and all such employees whose duties do not involve skilled or unskilled labour, inannual or clerical work."
3. (a) In support of the above petition Mr. Abdul Aziz, learned counsel for the petitioners has urged that the respondent No. 1 has failed to apply his mind to the question, as to whether a person falling within the categories referred to hereinabove in para. 2 are outside the ambit of the definition of the worker given in the Ordinance. His further submission was that the persons categorized and referred to hereinabove in para. 2 are not workers within the compass of the Ordinance. In furtherance of his above submission, he has referred to para. 9 of the petition, wherein the list of the above persons and their duties are specified.
4. ' In furtherance of his above submission he has referred to the case of M/s. Pakistan Tobacco Co.
5. Ltd., v. Mls. Pakistan Tobacco Employees' Union Dacca, the case of the Workers of Bata Shoe Company, Lahore v. Bata Shoe Company Ltd. And another the case of Mohammad Yakoob v.
6. Managing Director Punjab Vegetable Ghee & ganeral Mills Ltd., Lahore, the case of Mohammad AO v. SF' Labour Appellate Tribunal. The case of Gulab Khan v. Abba:i Texrile ;ills Ltd. and the case of Staff Union v. Pakistan Security Printing Corporation Ltd..
(c) On the other hand, it has been urged by Mr. A. R. Akhtar learned counsel for the respondents that the Ordinance being a taxing statute the presumption is that it is applicable to everyone unless any exception is made therein expressly. His further submission was that it is not the designation of an. Employee which can determine the factum as to whether he falls within the ambit of the definition of the worker given in the Ordinance but his duties and functions will be the determining factor. In support of his above contention he has referred to the case of Bashir Malik v.
7. Punjab Labour Courts, the case of Dost Mohammad Cotton Mills Ltd., Karachi v. Mohammad Abdul Ghani and another, and the case of Pak News Ltd. v. Sind Labour Court 2 Karachi and 2 others.
4. (a) Before taking up the above contentions of the learned counsel for the parties, it may be advantageous to refer to the definition of' 'worker' given in section 2 (2) of the Ordinance which reads as follows : "2. (c) Worker means any person employed, whether directly or through any other person, in any establishment to do any skilled, or unskilled manual or clerical work for hire or reward whose monthly wages do not exceed one thousand rupees, but does not include-
(i) persons in the service of the State including members of the Armed Forces, Police Force, Railway servants :
(ii) persons employed in any undertaking under the control of any defence organisation or railway administration ;1 2 3 4 5 6 7 8 9
(iii) persons in the service of a Local Council, a Municipal Committee a Cantonment Board or any other local authority."
8. ' It may be observed that in order to bring a person within the definition of a worker, it is necessary that he must be doing some skilled or unskilled manual or clerical work for hire or reward either directly or through any other person in an establishment as defined in the Ordinance and must be drawing monthly wages not exceeding Rs, 1,000. The above definition of a worker also excludes a person in service of the State including the members of the Armed Forces, police force, railway servants, persons working in any undertaking under the control of any defence organization or railway administration or in service of Local Council, Municipal Committee, Cantonment Board or any other local authority.
(b) With reference to Mr. A. Aziz's above contention referred to hereinAbove in para. 3 (a), it may be advantageous to refer to the cases cited by him. The first case is PLD 1961 SC 401, wherein, a Full Bench of the Supreme Court, while construing the definition of workmen given in section 2 (c) of the Industrial Disputes Act (XIV of 1947) has held that the persons, whose are engaged exclusively in the field of distribution through proper agencies of the products of the company do not fall within the definition of the workman given in the aforesaid Act. It may be advantageous to reproduce hereinbelow the definition of 'workman' as given in the said Act, which reads as follows : "any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes for the purposes of any proceedings under this Act in relation to an industrial dispute. a workman discharged during the dispute, but does not include any person employed in the naval, military or air service of Pakistan or in the Police."
9. ' It may be observed that the language employed in the above definition of the term 'workman' has more or less the same wordings as used in the definition of the word 'worker' in the Ordinance, but the Supreme Court held that a salesman is not covered by the above-quoted definition.
(d) With reference to 1971 PLC 1, which is also a case decided by a Full Bench of the Supreme Court of Pakistan and wherein also the subject matter of in erpretation before the Supreme Court, was the definition of the term 'workman' given in section 2(h), it was held that a foreman holding a supervisory and managerial post is not covered by the above definition of workman given in the Act merely for the reason that while discharging his duties he has to do something with his own hands by way of checking or testing work done by other workmen. The view taken by the Supreme Court in its earlier aforesaid Supreme Court of 1961 was reiterated in the above case.
(d) As regards 1970 PLC 137, it will suffice to serve that it was a case decided by a Bench of the Industrial Court, in which while construing the definition of 'workman' given in section 2 (i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was held that a chemist in the ghee production mill incharge of the dispensary was not covered by the above definition. It may be advantageous to reproduce hereinbelow the definition of the workman given in the aforesaid Ordinance, which reads as follows :- " 'Workman' means any person employed in any Industrial or commercial establishment to do any skilled or unskilled manual or clerical 'labour' for hire or reward."
(d) With reference to PLD 1978 Kar., it may be stated that in the above case also the subject matter of a writ petition before a Bench was the interpretation of the term 'workman' given in the aforesaid West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, wherein it was held that the incharge of the printing section of the respondent textile mill drawing a salary of Rs, 580 per month was not a workman within the above definition.
(e) Reverting to 1961 PLC it may be observed that this case was also decided by a Bench of the Industrial Court, West Pakistan. In the above case while construing the definition of a workman given in section 2(s) of the Industrial Disputes Ordinance (LVI of 1959), it was held that a 'mistre doing duties essentially of supervisory character except when he had to demonstrate to trainees how to work. Was not a workman within the above definition. It may be advantageous to reproduce hereinbelow the definition was given in the aforesaid Ordinance, which reads as follows :- "Workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Ordinance in relation to any industrial dispute, a workman discharged during that dispute, but does not include any person employed in the police or armed forces of Pakistan.
(d) With reference to 1966 PLC it may be stated that the question before a Bench of the Industrial Court West Pakistan, was whether the members of security staff were 'workman' within the definition given in the aforesaid Industrial Disputes Ordinance, 1959, it was held that they were not workmen.
(e) Reverting to the case reported. In PLD 1973 Lahore, it may be stated that the subject-matter of writ petition before a learned Single Judge of the Lahore High Court was the interpretation of the definition of workman as given in the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968, it was held that an engineer is no longer a supervisory officer, but may be a workman doing skilled and unskilled labour, in order to bring him within the ambit of the definition of the workman given in the aforesaid Ordinance.
(i) Whereas in PLD 1975 Kar. a learned Single Judge of this Court while construing the term 'workman' given in the West Pakistan Industrial and Commercial Employees (Standing Orders)
10. Ordinance, (VI of 1968) held that the question, as to whether a person is a 'workman' or not within the definition given in the said Ordinance does not depend upon his designation or salary but is to be determined on the basis of the work which he performs and that if such work answers the description of the works given in the definition., he will fit within the compass of workman as defined in the Ordinance:
(j) Reverting to 1976 Karachi 73, it will suffice to observe that in the above case again the subject- matter of the writ petition was inter alia the interpretation of the definition of 'workman' given in the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968, it was held that a circulation manager in the respondent newspaper was not a workman. It was further held that the question, whether a person is workman will depend on the nature of his duties irrespective of his designation or post. It was also observed that in the above case the maxim .Expressio unius est exlusio alterius' (express mention of one implies exclusion of another) is to be applied cautiously, and it is not to be, applied particularly when it leads to inconsistency or injustice and that while construing an Act each part of the status must be given its meaning and it is to be construed in the manner which mike; a c3nsistent enactment as a whole.
(5) (a) From the above-cited and discussed CiSeS, it is evident that the superior Courts and the Industrial Courts while interpreting the definition of the term 'workman' couched in more or less same language used in the various Acts/Ordinances, have held that a person engage in the distribution of the products, a foreman, a chemist, an incharge of the printing section of a textile mill and a mistri are not covered by the definition of the above term, 'workman'. It is also evident that the question, as to whether a particular employee is covered by the definition of the terms 'worker' or 'workman' is also to be judged on the basis of the duties and the functions which he performs irrespective of his designation. If an employee performs the work which falls within the works mentioned in the definition, he will be covered by the definition of 'workman' or worker subject to ceiling of the salary provided in the relevant enactment. It may be pertinent to mention again that a Division Bench of this Court while dismissing the aforesaid earlier petition, namely, C. P.
11. 970/ 78 in limine, observed that the question whether or not the workmen employed with the petitioner Company are covered by the above Ordinance is a mixed question of fact and law, to be decided by the Appellate Court. However, from the impugned order, it is evident that the respondent- No, I was of the view that every employee except those getting more than Rs, 1,000 is covered by the definition of the term 'worker' given in the Ordinance irrespective of his nature of the work. It may be advantageous w quote hereinbelow the relevant portion of the impugned order, which reads as follows :- "They have now filed the returns. The returns admittedly consists of employees exceeding 8,000 workers but this figures includes those getting more than 1,000 per month who are not liable to payment of Education Cess under the Ordinance. The learned counsel contend that supervisory staff, getting less than 1,000 Chowkidars, Office attendance and Delivery Peons, Bill Distributors, Telephone Operators, Lift Operators, Drivers working With Officers, employees in the Dispensary, Watchmen and staff of Security Department are not covered by the definition of workers as contained in the Ordinance. The learned counsel further refer to various rulings in connection with in contention that the employees referred to above are not workers for the purpose of this Ordinance. These tulings are related to cases under various enactment ad not in respect of Educations Cess Ordinance. I therefore feel that all workers other than those getting more than per month are workers for the purpose of Education Cess Ordinance. I, therefore accept the contention of K. E. S. C. To the extent that those officers and staff who are getting more than Rs, 1,000 per month should be deducted from the total number of workers and Education Cess. Levied on the same figure. I therefore set aside the order of the Excise and Taxation Officer P Division dated 8th March, 1978 and direct that Education Cess for the year 1975-76 be recovered on the basis of 5,414 workers and for the year 1976-77 on the basis of 4,340 workers and for the year 1977-78 5,682 workers. The counsel are requested to file similar returns for the year 1972 to 1974 to enable the Excise and Taxation Officer to compute the proper dues and recover the balance if any."
(b) From the above-quoted passage of the impugned order, it is clear that the respondent No. 1 while acting as the appellate authority has not approached the matter keeping in view the fact that it is not only the amount of the salary, which determines the question as to whether a particular employee of the petitioner-Company falls within the ambit of the definition of the 'worker' given in the Ordinance, but the nature of his duties is also pertinent. It may be observed that simpliciter the fact that a person is drawing less than Rs, 1,000 will not make 'him a worker within the definition of the Ordinance. But it is also to be examined as to whether his work falls within the compass of the works mentioned in the definition of the term worker'. If the work of an employee does not answer the description of the works given in the aforesaid definition, he is not covered by the Ordinance. Since the appellate authority has not applied its mind to this aspect, the impugned order cannot be sustained and, therefore, we declare the same as being without lawful authority and remand the case to the respondent No. 1 with the direction to decide the appeal afresh after notice to the parties. The question as to whether the employees enumerated in para. 9 of the petitioner namely, Chowkidars, security staff, medical assistants Industrial health assistants, lift operators, telephone operators, bill distributors and office attendants, delivery peons, supervisory or managerial staff and the drivers working with the officers fall within the terms of 'worker', as defined in the Ordinance is to be decided with reference to their salaries and the nature of their duties. The petitioner company will be at liberty to produce any evidence or the appellate authority may require the petitioned-Company to produce evidence for the purpose of substantiating that the duties of the above categories of the employees do not answer the description of the worker given in the definition of the Ordinance.
12. ' In the circumstances of the case there will be no order as to costs. PLD 1961 SC 403 1971 PLC 1 1970 PLC 1371 2 3