The 2 respondents, Muhammad Shall and Hyder Zaman, were the employees of the appellant establishment, which is one of the Units, the Management whereof has been taken over by the Government under the provisions of the Hyderogenerated Industries (Control and Development)
Ordinance, 1973, which was replaced by Act LXV of 1973. Muhammad Shall was dismissed from service on 19th July, 1979, for remaining absent from duties, without leave, and further for indulging in dishonesty in connection with the employer's business and property, while Hyder Zaman was dismissed on 18th July 1979, on the charge of attempting to steal the property of the appellant establishment. Both the respondents filed separate grievance petitions before the Labour Court challenging their orders of dismissal. The learned Labour Court, by 2 separate orders, has directed the re-instatement in service of the 2 respondents on the common ground that their orders of dismissal were passed by the factory manager, who was not their employer for the purposes of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
2. The learned Labour Court, in taking the view that the factory manager of the appellant establishment was not the employer of the 2 respondents has relied upon the decision of the Karachi High Court in the case of Gul Ahmad Textile Mills v. Presiding Officer, Labour Court No, IV, Karachi . In that case the question which fell to be examined by the High Court was whether Abdul Hadi Fareed, the Administrative Officer of Gul Ahmad Textile Mills, who claimed to have been given the powers of 'hire and fire' by the Management hut had not produced any authority in support of this claim, was the "employer" in respect of the workmen in the Gul Ahmad Textile Mills. It was in that connection that the High Court examined the definition of employer as given in section 2 (c) of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and observed1 that the third paragraph of the definition, which is the residuary clause, is applicable to cases not covered by the preceding two paragraphs and that further each paragraph of the definition is self- containect and excludes classes and establishments mentioned in the other paragraphs. A close examination of this decision does not support the view taken by the learned Labour Court that a factory manager in a Government establisnment is not the employer for the purposes of the aforesaid Act. The definition of "employer" as given in the aforesaici Act is as follows :- "(c) 'employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes-
(i) in a factory, any person named under clause (c) of subsection (I) of section 9 of the Factories Act, 1934 (XXV of 1934), as Manager of the factory ;
(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appointed by such Government in this behalf or where no such authority is so appointed the head of the Department ;
(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment."
4. A bare perusal of the aforesaid definition makes it clear that the primary employer is the owner of the establishment, but the persons specified in the 3 clauses of the definition are also to be deemed to be the employer in respect of the establishments to which these clauses respectively apply. It was specifically pointed out by the High Court in the Gul Ahmad Textile Mills' case that the third paragraph in the definition of "employer" was the residuary paragraph and is applicable to establishments other than those covered by the first and second paragraphs, which respectively apply to (a) factories and (b) to establishments under the control of Government. Since a separate clause in the definition refers to factories whether in the private sector or under the Government control, the "employer" in the case of a factory would include the factory manager. This in fact is indicated even in the judgment in Gul Ahmad Textile Mills' case where it was observed that each clause of the definition is self contained and excludes the clauses of establishments mentioned in other paragraphs. No doubt, the expression "industrial establishments", which is covered by the second clause and also referred to in the third and the residuary clause, includes industrial and other types of specified establishments, but since specific provision has been made in respect of factories in the first clause, the second clause, in my humble opinion, would be restricted in its application to industrial establishments other than factories. There is thus no escape from the conclusion that in the case of factories, whether privately owned or run by the Government, the factory manager would fall within the definition of "employer" as given in the Standing Orders.
4. It was contended by Mr. Syed Abul Kalam, the learned representative of the respondents, that even if it is held that the factory manager in the appellant establishment is the employer for the purposes of the Standing Orders, there is no tangible evidence to show that Mr. S. U. Zafar, who had issued the dismissal orders in respect of the 2 respondents. Was in fact the factory manager or had been so notified under section 9 of the Factories Act. I, however, find that both the appellants in their evidence before the learned Labour Court have considered Mr. S. U. Zafar to be the factory manager and not disputed his status as such. The contention of Mr. Abul Kalam thus has no substance.
5. As no other point is involved in these appeals, nor was canvassed before the learned Labour Court, I would set aside the 2 impugned decisions and allow both the appeals. PLD 1979 Kar. 351