' Abdul Salam, ex-operator and General Secretary of Marker Employees' Union (Registered) Quetta, has moved this application purporting under section 25-A of the Industrial Relations Ordinance, 1969 against the present respondents for his re-instatement and consequential benefits.
2. The case of the applicant, briefly stated, is that he is a permanent workman initially employed on 1st March, 1967 as a general worker in the factory. He is also the duly elected General Secretary of Marker Employees' Union which is the sole registered Trade Union of the establishment of M/s. A. D.
Marker & Sons (Marker Alkaloids Limited), Quetta, and the Union has also been certified to act as C.
B. Agent. He was served with a show-cause notice bearing No, P. D./69 dated 31st March, 1981 issued for Marker Alkaloids as to why he should not be proceeded against for submitting a false and misleading complaint against the officers of the Management which was accordingly replied by him on 5th April, 1981 wherein be submitted that complaint lodged by him was genuine and correct and as a counterblast the officers concerned had illegally levelled false and frivolous allegations against him and on the basis of their complaint show-cause notice had been issued to him, praying therein also for withdrawal of notice. After completion of enquiry, which according to 'the applicant was illegal, partial and mala fide, he was served with a second show-cause notice No, PD/154. Dated 12th May 1981 which was accordingly replied by him on 14th May, 1981 ; where after vide No, PD/168 dated 18th May, 1981 issued for Marker Alkaloids he was dismissed from service with immediate effect on the alleged charge of misconduct 'purporting under Order 15 (3) (h) of the West Pakistan Industrial and Commercial Employment (Standing Order Ordinance, 1968. The applicant contended that he has been subject to punishment and victimization by the Management adopting unfair labour practices and in violation of Statutory provisions and principles of natural justice on account of his Trade Union activities under the garb of dismissal; the action taken by the Management is therefore, illegal and mala fide.
3. The present respondents contested the application on merits and raised the following preliminary objections with respect to maintainability of the application under the law :- "(i) That the present application filed under section 25-A of the Industrial Relations Ordinance. 1969 is ipso facto not maintainable in law on the ground that the only necessary party in such proceedings that is to say the Company, Marker Alkaloids Limited who employed the applicant before his dismissal has not been impleaded in these proceedings and instead the Manager Administration and the Director, Marker Alkaloids Limited respectively have been made respondents.
(ii) That without prejudice to the aforesaid contention it is submitted that there are several Directors on the Board of Directors of the Company and without indicating as to which Director has been made a party in the present proceedings, the same are not maintainable.
(iii) That neither the Manager Administration nor the Director as such in their respective individual capacity as Member of Management of the said Company are necessary parties to these proceedings inasmuch as ultimately whatever relief that may be given to the applicant (although it is denied that the applicant is entitled to any relief whatsoever) will be against the company as such, and not against the individual Members of Management of the Establishment.
(iv) That the application has not been filed against the Company as such but against individuals and that too by reference to designation merely to confuse the issues and harass the individuals."
4. It is pertinent to mention here that initially the application had been moved before Labour Court No, 1, Baluchistan, Quetta, who has territorial jurisdiction concerning the matter, subsequently on application moved by the applicant before hon'ble Labour Appellate Tribunal, Baluchistan, and has been pleased to pass Order on 12th December, 1981 for the transfer of the case to this Court.
5. In view of circumstances of the case and preliminary objections having been raised, the issue relating to the competency and maintainability of the application against the present respondents had to be considered first. On behalf of the parties it was stated that no evidence was sought to be produced by them concerning point in issue.
6. I have heard at length the counsel for the parties and perused the entire material available on record and the authorities cited in support of their respective contentions.
7. Mr. Burney contended that since Marker Alkaloids Limited (hereinafter called as Marker Alkaloids) is a company incorporated under the Companies Act, 1913, it is a body corporate and can only be sued and sue in its corporate name and that the application filed is against the Manager Administration and the Director which is a mere designation and not a person and, therefore, cannot be bound by the decision, and that application not having been brought against legal or natural person is bad in form, incompetent and not maintainable. In support thereof he has relied on the case of Abdul Batin Kazi and others v. Sind Labour Court No, VI, Hyderabad and 2 others (1), and this contention does find force. Apart from dismissal order dated 18th May, 1981 the other documents placed on record concerning the applicant while in service of Marker Alkaloids purport to have been issued for Marker Alkaloids against whom the applicant feels to have been aggrieved but not joined as a party. And this non-joining of. Marker Alkaloids as a party in the application is fatal to applicant's cause.
' In this connection the provisions of Order I, rule 3 of Code of Civil Procedure may be relevant which require that all persons may be joined as defendants against whom any right to relief arises.
8. The applicant has approached this Court invoking the provisions of Industrial Relations Ordinance, 1969 (hereinunder called as Ordinance) for redress of his grievances as claimed, regarding his rights guaranteed under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as Standing Orders). Both the statutes i,e, Ordinance and Standing Orders do contain the definition of "Workman" and "Employer". But here we are concerned with the definition of "Employer" in order to determine the scope of the application against the present respondents. The "Employer" has been defined in section 2 (c) of the Standing Orders and section 2 (viii) of the Ordinance.
' Their Lordships of the Supreme Court held, while deciding the case of Shahzar Khan v. Sind Labour Court No, IV, Karachi and 2 others (2), preference given to the definition of workman and employer as in the Ordinance, The Legislature could not have intended to maintain two separate concepts of workman and employer, as one under Standing Orders and the other under the Ordinance.
Therefore, it would be' advantageous in order to reproduce the provision of the Ordinance concerning "Employer". "Employer" has been defined in section 2 (viii) of the Ordinance in the following manner:- "2 (viii) 'Employer' in relation to an Establishment means any: person or body of persons, whether incorporated or not, who or which employs workman in the Establishment under a contract of employment and includes-
(a) an heir, successor or assignee as the case may be of such person or body as aforesaid
(b) any person responsible for the management, supervision and control of the establishment ;
(c) in relation to an establishment ran by or under the authority of any Department of the Federal Government of Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department ;
(4) in relation to an establishment run by or on behalf of a local authority, the officer appointed, in this behalf or where no Officer is so appointed, the chief executive officer of that authority"; Special provision.-For the purpose of distinction from the category {{FOOT NOTE}}
(1) 1980 PLC 568 (r) (2) 1977 SCMR 103 {{FOOT NOTE}} ' of "Workers or Workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers in relation to any other establishment, the Proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof."
9. Mr. Iftikhar Muhammad, learned counsel for the applicant contended that the provision of section 2 (viii) (b) of the Ordinance would be attracted under the circumstances of the present case and the present respondents would be deemed to be `employers' for that purpose. Reliance in this behalf has been placed by him on in the case of Gul Ahmed Textile Mills Ltd. v. Presiding Officer, Sind Labour Court No, IV and another (1). I am afraid this reliance has no force in the given circumstances. In that case the definition of 'employer' as incorporated under Standing Orders has been considered. In the event of subject-matter being identical under both the statutes i,e, Ordinance and the Standing Orders, the Ordinance is to prevail, I am fortified regarding thereto by reported decision of Warner Lambert (Pakistan) Ltd. v. Sind Labour Court No, III, Karachi and another
(2) at page 339 it has been held "Now even a cursory look at the definition of workman in Industrial Relations Ordinance of 1969 will clearly establish that the definition of Industrial Relations Ordinance is much more wider and comprehensive than the definition of Standing Orders Ordinance and since Industrial Relations Ordinance is a latter Act and the application was made under section 34 of Industrial Relations Ordinance and was in respect of section 23 of the Industrial Relations Ordinance and there is no mandatory provision that the definition of Industrial Relations Ordinance of 1969 will not be applicable and no positive injunction - that definition as given in Standing Orders Ordinance (III of 1960) should alone be resorted to, therefore, I would hold that the definition as given in Industrial Relations Ordinance shalt have to be resorted to, to determine the status of a workman."
10. So far as respondent No, 1 is concerned, it has not been disputed that he is 'not supervising or controlling entire establishment but only a branch or department of establishment ; so as regards him the provisions of definition of `employer' as contained in section 2 (viii) o the Ordinance would not be applicable. In this connection regarding the case of Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul. Ghani and another (3), may be referred to. At page 351 thereof his Lordship Justice Abdul Hayee Kureshi, observed:- "I must also record a further contention of Mr. Naimuddin to the effect that the respondent, if he was to be held to occupy a position of supervision or control, could not be termed to be supervising or {{FOOT NOTE}}
(1) PLD 1978 Kar. 35 2) 1979 PLC 370 {{FOOT NOTE}} ' controlling the entire establishment but only a branch or department of this establishment and for such reasons could not be said to be covered by the definition of "employer" as stated in section 2
(c) (iii) of the Ordinance. I am inclined to agree with such contention but it is not necessary to pursue the point any further."
' I am surther fortified in this view with reference to case of Dost Muhammad Cotton Mills Ltd., Karachi v. Fourth Sind Labour Court and 2 others (1).
11. As regards respondent No, 2, although the Directors are the mainspring of a Company occupying a very important position in all its affairs ; but it is established legal proposition that a Company incorporated under Companies Act, 1913, as also in the present case, consists of Board of Directors. The Director/Directors act for and on behalf of the Company and his/their personal liability is exceptional. Marker Alkaloids not having been impleaded as a party, it is not convincing that the Directors would therefore incur any liability as such. The respondents in their joint written reply have also taken objection connected therewith. Para. No, 48 of the same reads as under :- "That without prejudice to the contention that the application filed under section 25-A is not maintainable also for the reason that it has been filed against the Director without indicating which one of the several Directors has been impleaded, this statement has been signed by Mr. M. K.
Marker, one of the Directors without in any way admitting any liability whatsoever."
' Order XXIX of the Code of Civil Procedure, 1908 is relating to suits by or against corporations. It would be advantageous to, reproduce the provisions of Order XXIX, rule 2 of the C. P. C. For enunciation, The same reads as follows :- "2. Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-
(a) on the secretary, or any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business."
A bare reading of the abovesaid provision reveal that in case a Company having been impleaded a party in a suit/application, then service on any director would be due compliance of law. Marker Alkaloids not having been joined as a party in the present application the service on any director would be deemed to be redundant, without having any force of law.
12. Examining the provisions of section 2(viii) of the Ordinance concerned with the definition of 'employer' although quite wide but is still restricted to those persons who are concerned with Management of D affairs of the establishment, and the same refers to establishment as whole and the Management should also refer to the whole of the establishment.
' Regarding concept of 'Management' 1979 PLC 370 is also relating thereto. His Lordship Justice Zahoorul Haq observed at page 341 :- "The word 'Management' has a particular significance. Mr. Sharif pointed out that according to Black's Law Dictionary (1968 Edition), page 1172 'manage' means to control and direct, to administer, to conduct, to carry on the concern of a business or establishment. Generally applied to affairs that same are completed and that involves skill and judgment. 'Manager' means in the same dictionary as one who has charge and control of the corporation, of its business and branch establishment and who is vested with certain amount of discretion and independent judgment. He has relied upon (1926) L J R KB 397 where it was held that Management is not a term of art, it has no precise legal meaning. A Captain was held to be concerned with the management or mismanagement. It was however also observed in that judgment that application of terms of management depends upon facts and circumstances of such case. I also find that my learned brother Agha Ali Hyder, J.
Has held in 1977 PLC 640 that the determination of the status of a workman and employer would depend upon duties and responsibilities in each case. I am in respectful agreement with the view of Agha Ali Hyder, J. Mr. Sharif also wanted to contend that any establishment and even a part of the establishment can be considered for determining the status of a workman if he is incharge of that part of establishment. He relied upon PLD 1978 Kar. 649 where in a Division Bench Judgment my learned brother Fakhruddin G. Ebrahim, J. Held, after considering the circumstances of the case, that the incharge of a printing section was not a workman. I think that decision was given in the circumstances of that particular case."
Under the circumstances of the case, it can safely be held that respondent No, 2 i. e. a Director of the Company in his personal capacity as such shall not fall within the purview of definition of 'employer' as given in the Ordinance.
13. For the reasons stated above and in view of legal position enunciated in the rulings quoted above, it is my considered opinion that the application against the present respondents is legally defective, incompetent and not maintainable. The same is hereby dismissed leaving the parties to bear their own costs.
14. Needless to add that dismissal of the application does not preclude the applicant from pursuing any other remedy that may be legally available to him for the enforcement of his claim.