This is an appeal against an award dated April 27, 1971, Karachi. The facts giving rise to the appeal Labour Court, appeal briefly put are these.
2. The General Secretary, Provincial Buildings Employees, Union made an application under section 34 of the Industrial Relations ordinance, 1969 whereby he challenged the removal from service of one Muhammad Yousuf. The General Secretary alleged that the dismissal of Muhammad Yousuf from service was illegal as it was in violation with the principles of natural justice. Muhammad Yousuf was not given a show-cause notice as to why he should be dismissed from service.
3. A preliminary objection was taken before the learned Labour Court that the Industrial Relations Ordinance did not apply to the parties. The learned Court came to the conclusion :- "The Ordinance applies to persons employed as a workman by the Railways, Posts, Telegraph and Telephone Departments so far as the administration of the State is concerned and it does not apply to persons employed in the administration of the State in any other Department. This application is, therefore, not maintainable here and is dismissed as such.
The Implication of the above order appears to be that Muhammad Yousuf was employed in the administration of the. State and, therefore, the Ordinance was not applicable.
4. Subsection (3) of section 1 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) reads as under :- "(3) It shall not apply to any person employed in the Police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an ordnance factory maintained by the Central Government; or to any person employed In the administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Departments."
In order to get the true import of the exception to the applicability of the Ordinance it is necessary to view the enactment in retros--pect, the reason for the exception, the evil it was to end and the object it was to serve. The Ordinance must be viewed as a whole and its intention determined by construing all the provisions of the Ordinance together and not by taking one section.
5. I would now proceed to consider the Labour Legislation in retrospect to find out the intention of the Legislature as regards the applicability of the Ordinance to a person who would be covered by the definition of a workman. The earliest Legislation on the subject was the Industrial Disputes Act, 1947. The Act consists of forty sections and a Schedule. A perusal of the various provisions of the enactments would show that the provisions of the enactment applied to all persons who were covered by the definition of workmen. There were however certain reservations relating to service which come within the definition of "Public Utility Service" for instance railway service, postal, telegraph or telephone service, any undertaking, establishment or installa--tion relating to the Defence Services. The persons employed in Public Utility Services were prohibited to go on strike in breach of contract without giving to the Employer notice of Strike. The Employer carrying on any Public Utility could not lock--out any of the workmen without giving them notice of lock-out. The procedure for Notice of Strike or lock-out was provided tender section 22 of the Act.
6. The Industrial Disputes Act, 1947 was repealed by Industrial Disputes Ordinance of 1959. The definition of "work--man" in 1959-Ordinance is substantially the same as in 1947 Act except that the Ordinance did not apply to persons employed in Police besides armed services. Under section 18 of the Ordinance which is similar to section 22 of the 1947-Act, persons employed in Public Utility Service could go on strike and be locked-out only after complying the procedure prescribed under section 18 of the Ordinance.
7. The Industrial Disputes Ordinance of 1959 was repealed by the West Pakistan Industrial Disputes Ordinance, 1968. The definition of "workmen" as given in 1968-Ordinance did not apply to the following persons :-
(i) who was employed in the Police or the Armed Forces of Pakistan ;
(ii) who was employed in the service of a person, or of a hospital for the treatment of human patients ; (i.e) who was a Chowkidar (guardsma n) or is employed in service, declared by Government to be watch and ward or security service ;
(iv) who was employed in a managerial or administrative capacity; or
(v) who was a public servant engaged in the administration of State, not being employed in a factory or in the railways, or in any other establishments, undertaking, department, profession or service declared by Government to be an industrial establishment or service for the purposes of this Ordinance.
While under 1947 Industrial Disputes Act a person employed in the Navy. Military or Air Service of the Crown was not covered by the definition of workman. Under 1959-Ordinance persons employed in the Police besides Armed Forces of Pakistan could not be said to be Workmen.
8. Industrial Disputes Ordinance, 1968, was repealed by the Industrial Relations Ordinance, 1969. It is noteworthy that the definition of "Workman" in 1969-Ordinance is silent as to who could not be said to be a Workman. In the previous Legislation on Labour Laws certain categories or persona for instance person employed in Police or Armed Forces of Pakistan could not be said to be "Workman". This object, however, has been achieved by subsection (3) of section 1, which has already been reproduced above.
9. To sum up a perusal of Industrial Disputes Act, 1947 and Industrial Disputes Ordinance of 1959 would show that the only persons who were not covered by the definition of "Workmen" were those who were employed in Police or Armed Forces of Pakistan. The intention of the Legislature to frame these to enactments was to confer the benefits of Labour Laws on as many persons as possible.
There was, however, a departure in the policy of the Legislature in 1968 and 1969 as to the applicability of the provisions of Labour Laws to various category of persons. In 1947 and 1959 enactments only those persons could not derive the benefits of Labour Laws who were employed in Police o; Armed Forces of Pakistan. On the other hand in 1968. Ordinance five categories of persons could not be said to be "Workmen" and, therefore, could not take advantage of 1968--Industrial Disputes Ordinance. The Industrial Relations Ordi--nance, 1969 is to some extant more liberal in its application to workmen as compared to 1968-Ordinance. It may be argued for instance that subsection (3) of section I of the I. R. O., 1969 would not be applicable to a person who is employed as a Chowkidar.
10. Taking into consideration the history of the Labour Laws it would appear that I. R. O., 1969 has been deviced with the object of maintaining Industrial pace so as to prevent interference with the public safety or, public order or with the maintenance of supplies and services essential to the State. The object of the Ordinance is to give freedom of Strike and Lock-out but not at the cost of public safety or State. The Legislators, by I. R. O., 1969 intended to give benefits of Labour Laws to a many persons who would be covered by the definition of "Workman" but at the same the to safeguard Strike and' Lock-out by persons employed in the services essential to they State and also persons employed in the administration of the State.
11. I would now proceed to consider as to what is meant by the phrase "any person employed in the administration of the State" occurring in subsection (c) of section I of the Ordinance. The word "administration" in Chamber's Twentieth Century Dictionary means the at of administering ; management ; dispensation of sacraments; the Government". The word "Admi--nister" means-to govern; manage as a steward, substitute or executor ; to dispense (as justice, rites); to tender (as an oath, medicine).
12. Keeping in view the intention of the Legislature to confer the benefit of Labour Laws on as many persons as would be covered by the definition of "Workmen", the phrase "employed in the administration of the State" must be strictly construed. In this connection it is noteworthy that the Legislature did not say "any person employed in Government Service". The intention of those who framed subsection (3) of section 1 of the Ordinance was not to deprive the benefit of the Ordinance to all persons who are serving the Government. Had it been so they would have said so. The phrase "employed in the administration of the State" therefore, must be given a meaning other than `-- person employed in Government Service." There is a line of demarcation in the functions undertaken by Government which can be divided into to classes of cases, namely:
(1) the primary and inalienable function of a Government ;
(2) the function undertaken by the State but which is primarily subject of private individual enterprise such as construction of houses, road, building etc. It is difficult to define as to what are the primary functions of the Government. Some assistance, however, can be derived from the observation of Isaacs, J., in The Federated State School Teachers Association of Australia v. The State of Victoria ((1928-29) 41 C L R 569) which is reproduced by Iqbal, J., in Management of Municipal Committee, Mianwali, In re: (1968 PLC 270). It runs as under :- "Regal functions are unescapable and inalienable. Such are the Legislature power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of legislative power. But when they are assumed the State acts simply as a huge corporation with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of law is merely analogous to that of a private company similarly authorised.
A question arises as to whether Muhammad Yousuf can be said to be performing function which can be said to be "administra--tion of State". It would appear from the application under section 34 of the Ordinance that Muhammad Yousuf is Operator-cum-Driver in Provincial Building Division, Tando Jam. There is no evidence on the record to show that Muhammad Yousuf was performing any administrative function in the sense of "governing or managing" In the Provincial Building Sub- Division, Tando Jam.
13. I would hold that subsection (3) of section 1 of the Ordinance is not applicable to the case of Muhammad Yousuf. The provisions of 1969-Ordinance are applicable to his case.
14. The award of the learned Court is set aside. The learned Court to dispose of the application under section 34 of the Ordinance In accordance with the law.