' This 2 appellants, who had an arrangement with the Cafe-de-Khan, the respondents herein, for serving and supply of food, etc., to customers wanting service outside the Cafe (Popularly known in Karachi as submitted separate grievance petitions to the learned Vth Labour Court, on 6th August, 1979, claiming that their services were unlawfully dipensed with by the respondent establishment, and praying for re-instatement in service with full back benefits. The learned Labour Court has dismissed their grievance petitions by separate but practically identical orders, holding, firstly, that as the appellants were engaged on commission basis for the supply and serving of food by them to customers outside the premises of the Cafe, they do not fall within the definition of "workmen" for the purposes of the Standing Orders, that secondly, it has been held in the proceedings initiated upon an application under section 34, I. R.
0. Made by the workers' union in the respondent establishment that the two appellants are not workmen for the purposes of the Standing Orders, and that finally, it has not been established that the Standing Orders are applicable to the respondent establishment. The appellants have now come up in appeal to this Tribunal against the said decisions of the learned Labour Court. This order will dispose of both the appeals.
2. I have beard Mr. S. P. Lodhi, who appeared for the two appellants, and Mr. Zamirul Hassan, who represented the respondent establishment.
3. Mr. Lodhi assailed the impugned decisions of the learned Labour Court on the following 3 grounds :-
(i) Whether the decisions of the learned Labour Court and this Tribunal on the application under section 34, I. R. Holding that the present appellants were not workmen at the relevant time, operates as constructive res judicata to the present grievance petitions?
(ii) Whether the provisions of the Standing Orders are applicable to the respondent establishment?
(iii) Whether the appellants are "workmen." for the purposes of the Standing Orders?
4. Before dealing with the above contentions of Mr. S. P. Lodhi, I would like to examine two legal objections raised by Mr. Zamirul Hassan to the maintainability of the present appeals. His first objection was based on the fact that both the appeals had been dismissed on 7th Dacember, 1980 dui to non-appearance of the appellants and their learned representative. On restoration applications being Wed, the Appeals were restored to file by my order, dated 7th May, 1981, but With the observation that the restoration was being ordered subject to any just exception. It was contended by Mr. Zamirul Hassan that apart from the fact that the restoration applications were filed more than two months after the dismissal of the appeals for default, the averments made in the restoration applications, on the basis of which the orders restoring the appeals were passed, are palpably false. The learned counsel submitted that the appeals were originally filed by Mr. Mohammad Iqbal, Advocate, but subsequently Messrs Shahzada Ashiq Ilahi and Iqbal Anwar filed their vakalatnamas and on 24th November, 1980. Mr. Iqbal Anwar appeared and sought and obtained an adjournment on the ground that the appeals would be argued by his senior, Mr. Shahzada Ashiq Ilahi. Mr. Zamirul Hassan contained that inasmuch as Mr. Mohammad lqbal, after getting the appeals admitted, was superseded by Mr. Shahzada Ashiq Ilahi and Iqbal Anwar, and had ceased to be their Advocate with effect from 30th September 1980, the averments made in the restoration application of the appellants that on 7th December, 1980 they were informed by their Advocate, Mr. Iqbal, not to appear before this Tribunal as their personal appearance was not required, is false. The contention of Mr. Zamirul Hassan has no force. In the first place, Mr. Mohammad lqbal, Advocate, had not withdrawn his vakalatnama despite the fact that Messrs Shahzada Ashiq Ilahi and Iqbal Anwar had also filed their vakalatnamas on behalf of the appellants and thus continued to be the representative of the appellants. He could, therefore, validly advise and represent the appellants even after the aforesaid two Advocates had filed vakalatnamas on behalf of the appellants. Moreover, in the restoration application, it is merely stated that Mr. Iqbal, Advocate, advised the appellants that it was not necessary for them to appear before this Tribunal as he would be appearing on their behalf. It may be mentioned that this reference could possibly be either to Mr. Mohammad Iqbal, Advocate, who originally appeared for the appellants, or Mr. Lqbal Anwar, Advocate, who subsequently appeared for them. In either case, it is not established that the averments made in the restoration applications regarding the advice that the appellants had received from their counsel is false. This position is clear that it was frankly and fairly conceeded by Mr. Zamirul Hassan.
5. It was next contended by Mr. Zamirul Hassan that the appeals were time-barred. The learned representative submitted that the impugned decisions were given on 5th August, 1980 the appellants applied for copies of the decisions on 20th August, 1980, on which date the copies were actually delivered to them, but the appeals were filed on 7th September, 1980, beyond the period of 30 days within which the appeals were required to be filed. According to subsection (21 of section 12 of the Limitation Act, which would be applicable to the present proceedings by virtue of the provisions of section 29 of the said Act, the date on which the judgment or order is announced and the time requisite for obtaining a copy of the said judgment or order are to be excluded from computing the prescribed period of limitation. As such the 6th of August, 1980, on which date the decisions were given, as well as the 20th of August, 1980 on which date the copies of the decisions were supplied to the appellants, are to be excluded. The appeals would thus appear to have been filed within the prescribed period of limitation as they were filed on the 30th day of the period which is to be reckoned for the purposes of limitation. This contention of Mr. Zamirul Hassan thus also appears to have no Substance.
6. I will now proceed to deal with the 3 objections raised by Mr. S. P. Lodhi in respect of the two impugned decisions. It may be convenient to deal with his last contention first, namely, whether by reason of the fact that the appellants were receiving commission and not regular wages, as alleged by the respondents, the appellants do not fall within the definition of workmen as given in the Standing Orders. The said definition reads as follows :- "Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical, work for hire or reward."
7. In my opinion, the mere fact that an employee receives commission for his labour and is not in receipt of regular wages, would not exclude him from the definition of "workman" as given in the Standing Orders. It may be pointed out that the words used in the definition are "hire or reward", and not wages, allowance or remuneration. The words "hire or reward" are words of wide amplitude. According to Ballentine's Law Dictionary, "hire" means : "to employ a person, the amount paid or to be paid for the services of a person". The same Dictionary defines the word "reward" as:- "A sum of money or other recompense offered by the Government, a natural person, an association, or a corporation to the members of the public generally, or to persons of a particular class, for the performance of a particle of property, locating a missing person or a lost particular service, such as the finding of a lost child, or the giving of information leading to the arrest of a person for a crime recently committed, and paid to a person for the performance of such service in accord with the offer and the conditions imposed in the offer. Zwolane v. Backer Mfg. Co. 150 Wis 517, 137 NW 769.
' The words 'reward' and 'bounty' are nearly allied in meaning. Reward is said to be the appropriate term to apply in the case of a single service, which can be only once performed, and therefore, will be earned only by the person or cooperating persons who succeed while others fail, while the term bounty applies where the services or action of many persons are desired, and each who acts upon the offer may entitle himself to the promised gratuity without prejudices from or to the claims of others. (Ingram v. Colgan 106 Cal. 113, 39 pat. 437)."
8. In the case of Cooks v. Mayne (1), where omnibuses were placed at the disposal of the public free of charge, but the public were invited to make voluntary contributions to support the omnibuses, and many passengers did contribute while some did not, it was held that this was a plying for hire and that it was not essential that any profit should be made by the operation.
9. The ordinary definition of reward, according to the Short e Oxford Dictionary, is a return or recompense made to or received by person for same service or merit. In Law Terms & Phrases, Judicial! Interpreted, by Sardar Mohammad Iqbal Khan Mokal, the word "reward" has been defined as : "a recompense for anything done". Recompense can take any form and may be in cash, kind, and service or in some other mode.
10. I would also in this connection refer to the interpretation of the term "remuneration" as given by Blackburn, J. In the case of R. v. Post
(1) (1893) L T 403 ' and reproduced in Words and Phrases Legally Deftman employed to do any work normally accepts and is on. The learned Judge thus construed the word se word 'remuneration' means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them. Consequently, I think if a person was in the receipt of a payment, or in receipt of a percentage, or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be 'remuneration'."
11. It has been held by the Supreme Court of India that remuneration to a workman may be paid on pro rata basis (See, Dharangadharo Chemical Works Ltd. v. State of Saureshtra (2), or even on commission basis, See Charity Aids Bus Service v. T. S. Narayane Swami (3), and Rhagan & Colliery v. Their Workmen (4), and that remuneration so paid amounts to hire or reward for the purposes of the Labour Laws. I am thus clear in my mind that if there is a contract of employment between the parties and the employee or the person engaged receives payment in cash, kind or in any other form, including commission, he would fall within the definition of workman as contained in the Standing Orders if he is employed to do any manual or clerical work. It may, however, be emphasized that the essential link between the parties is the contract of employment which may be written or oral. The old conception that a person would be deemed to be in the employ of his employer only if the employer has the authority not only to direct that work is to be done by such a person but also to supervise the manner in which such work is to be performed would appear, at least in certain case, to be no longer quite valid. I may ask does the employer have the ability or the physical capacity to supervise the work of a pilot while he is piloting a Supersonic plane in the air. No doubt, the example of the pilot may be an extreme one, though even in his case the employer determines the places where the plane will go, the route to be taken by the plane and further the pilot is required to comply with the detailed regulations, directions and instructions laid down by the authorities and the employer in regard to the operation of the plane and the safety measures to be adopted in respect of the passengers in the plane. There may be other workmen engaged in performing equally or even more sophisticated, complicated or intricate duties, requiring a very high degree of specialized skill whose work the employer may not have the ability, the capacity or even the sense to control or supervise. In such cases at least the bitterest for determining whether the person performing work for the employee is a workman is to see or determine if he is under the disciplinary control of the employer. In this view of the matter a person engaged to do any work on commission basis, if he is under the disciplinary control of the employer, would be deemed to be a workman for the purposes of Standing Orders,-if the work for which he is employed is of manual or clerical nature.
12. It next falls to be considered whether the Standing Orders are applicable to the respondent establishment. According to the affidavits of the appellants, 28 workmen were employed during the relevant period in the respondent establishment. The appellants have given the names of these 28 workmen in their affidavits. Further, they are supported by the General Secretary of the Workers'
Union in the respondent establishment. However, the appellants claim is completely shattered by their own cross-examination. It was admitted by appellant Munir that Kala Khan son of Ajaib Khan had left the services of the respondents on 1st July, 1979 and that in his place Mohammad son of Ajab Khan was employed. Despite this fact, the names of both these persons have been given in the list of 28 persons who according to the appellants were employed in the respondent establishment at the relevant time. It has further been admitted by appellant Munir that Isamdar was a contractor of chiken-tikka and that Aftab "Pervaiz, Ghulam Hassan and Saleem were the employees of the above-named contractor. However, the names of these 5 persons also appear in the list of 28 persons allegedly employed in the respondent establishment. Finally, appellant Muneer has stated that he does not know if Jameel Khan, Irshad, Mulla and Sultan Munshi, whose names appear in the list of 28 parsons allegedly employed in the respondent establishment, have ever been the employees of the respondent establishment. It would thus appear from the admission of the appellants themselves that less than 20 persons were employed in the respondent establishment at the relevant time. In view of this position, the Standing Orders would not appear to be applicable to the respondent establishment and the appellants would not be entitled to file grievance petitions under clause (3) of Standing Order 12 read with section 25-A, I. R.
0.
13. Finally, I would like to observe that I find little substance in the contention of Mr. S. P. Lodhi that the decision in the earlier case under section 34, I. R.
0., filed by the Union against the respondent establishment in which it was held that the appellants are not workmen in the respondent establishment, cannot be taken into consideration in the instant cases, as has been done by the learned Labour Court. It is true that the earlier matter was under section 34, I. R.
0., and related to the claim for bonus. However, one of the issue in that case was whether the appellant were entitled to bonus from the respondent establishment. That claim in turn was sought to be based on the contention that the appellants were workmen in the respondent establishment.
The issue, therefore, in that case and the present 2 appeals at least as regards the question whether the appellants are workmen for the purposes of Standing Orders was the same. The proceeding under section 34, I. R.
0. Were taken by the Collective Bargaining Agent in the respondent establishment, which is the statutorily representative of all workmen in the establishment. A such, the decision in that case in respect of the issue whether the appellants are workmen for the purposes of the Standing Order would operate as constructive res judicata in the present appeals.
14. For the foregoing reasons I would concur in the view taken by the learned Labour Court and dismiss both the appeals,