AJMAL MIAN, ACTG. C.J.--This petition is directed against the orders dated 13th July, 1986 and 30th September, 1986 passed by the respondents Nos.3 and 2 respectively in application No.94/86 and Labour Appeal No.8 of 1986 respectively.
The brief facts leading to the filing of the above petition are that the petitioner was initially employed on 29th December, 1960 as a "Block Cleaner". He was promoted as "Block Misery" and "Block Maintainer" in February, 1970 and on 29th March, 1979 respectively. He was posted as Block Maintainer in Quetta Division at Mach Railway Station on 31st March, 1980. It is the case of the petitioner that 3 posts of Block Maintainer which existed in Quetta Division were up--graded from RNSP-8 to RNSP-11 and the post was re-designated as "Sub-Engineer (Block)". It is also the case of the petitioner that he drew officiating pay in RNSP-11 from 19th April, 1980 onwards, which was thereafter, fixed vide order No.275-E/7-11(R-1), dated 15th May, 1983, but the same without any notice to the petitioner was revised by an order dated 30th June, 1985 retrospectively w.e.f. 19th April, 1980. The petitioner after serving a grievance notice under Section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "I.R.O.") filed the aforesaid application No.94 of 1986 in the Court of Presiding Officer, IInd Labour Court Baluchistan, Quetta, which was resisted by respondent No.1, interalia, on the ground that the petitioner was not a workman within the ambit of the I.R.O. The petitioner in support of his application examined 3 witnesses in addition to himself, namely, AW-1 Shah Safdar Hussain, a Block Inspector, AW.-2 Muhammad Shareef, a Block Mistry and AW-3 Darwaish, a Mistry. Whereas, respondent No.1 examined one Muhammad Azam, a Head Clerk. The above objection found favour with the learned Labour Court . Consequently, by the aforesaid impugned order dated 13th July, 1986, the petitioner's application was dismissed. He being aggrieved by the above order filed the aforesaid Labour Appeal No.8 of 1986, which was also dismissed by the aforesaid impugned order dated 30th September, 1986. The petitioner being aggrieved by the above orders has filed the present petition.
2. In support of the above petition, Mr. Rafiqul Hassan Siddiqui, learned counsel for the petitioner has vehemently urged that the petitioner was a workman within the ambit of the I.R.O. And, therefore, his application could not have been dismissed on the ground that he was not a workman.
Whereas Mr. Shakeel Ahmed learned counsel appearing for the respondent No.1 has tenaciously submitted that the concurrent finding of the two courts is in consonance with the provisions of the I.R.O. Read with Notification No.S.R.O.No.EI/83-NI/1 (hereinafter referred to as "the Notification") issued by the Federal Government under Section 2(viii) of the I.R.O. Declaring Sub-Engineers Grade-II as "Employer" under the above provision. He has further submitted that the Notification was not impugned by the petitioner prior to the filing of the present petition.
3. Before dilating upon the above contention, it may be pertinent to mention that the petitioner's work as a Block Mistry is to look after the Signal Box. In his work, he is assisted by two subordinates.
The learned Labour Appellate Tribunal in its order has quoted the relevant general instructions for staff from Chapter-VI of the Railway Manual pertaining to the organization of the Signal Branch in addition to the re-production of the Notification. It may be advantageous to reproduce the aforesaid general instructions, which read as follows:- "CHAPTER VI.-GENERAL INSTRUCTIONS FOR STAFF.
1. Organization of the Signal Branch. --The present organization of the Signal Branch of the Pakistan Western Railway is on the divisional system and the general supervision of signalling and interlocking work on each open line division is under the charge of Divisional Signal Engineer or Divisional Assistant Signal Engineer working directly under the Divisional Superintendent.
2. Maintenance of electrical works.--The electrical work of the Signal Branch will be maintained by separate subordinates and his staff, according to the sanctioned scale for the division.
3. Designation of; Supervising staff--The supervising staff employed on maintenance work will be designated as follows:- Code Initials.
Block Inspector---------.B. I.
Assistant Block Inspector. ---------------. A. B. I.
4. Distribution of work.--The work on a division will, ordinarily, be divided of into inspector's charges, 'and according to the density of work etc. Each inspector will have one or more assistants working under him:
5. Distribution of electrical staff.--The following chart for electrical staff shows the principle of distribution on a division:-- INSPECTOR.
Assistant Assistant Inspector Inspector Maintainer Maintainer Maintainer Maintainer Gang.Gang.Gang.Gang.
4. A perusal of the above-quoted extract from the aforesaid instructions indicates that in the hierarchy of organization of the Signal Branch, the Block Inspector is at the top of the hierarchy He has two Assistant Block Inspectors. Each Assistant Block Inspector has two Block Maintainers and each Block Maintainer has a gang under him to assist. It may also be noticed that under para.3 of the above instructions under the caption "Designation of Supervising Staff", only Block Inspector and Assistant Block Inspector are specified. In other words, according to the above instructions, only Block Inspector and Assistant Block Inspector fall within the category of supervising staff and not the Block Maintainer.
5. This leads us to the basic question, whether under the I.R.O. The petitioner falls within the ambit of worker or workman and, whether by virtue of the Notification, the petitioner stood excluded from the ambit of the worker or workman under the I.R.O.
"(viii)"Employer" in relation to an establishment means an person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under contract of employment and includes ---
(a) an heir, successor or assign 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 run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) 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 of "worker 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 directional, 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 employer:
(e) 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."
"(xxviii) "Worker" and "Workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-of or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of, or removal has led to that dispute but does not include any person -
(a) who is employed mainly in a managerial or administrative capacity; or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
The above-quoted clause (viii) gives definition of the term "Employer". The special provision to the above clause empowers, inter alia, the Federal Government through an official Gazette to notify its officers and employees belonging to the superior, managerial, secretarial, directional, supervisory or agency staff, as falling within the category of "Employer" for the purpose of distinction from the category of "worker or workmen". Whereas, the above-quoted clause (xxviii) provides the definition of "worker" and "workman" and excludes from its ambit a person falling within the category of "Employer" or who is employed mainly in a managerial or administrative capacity or who is employed in supervisory capacity and draws wages exceeding rupees eight hundred per mensem.
6. In the instant case, from the evidence on record, it is evident that the petitioner does the manual work with the assistance of two subordinates. It is also evident from the above-quoted departmental instructions, that the petitioner does not fall within the category of supervisory staff, as only the Block Inspector and Assistant Block Inspectors have been mentioned in the said category.
Mr. Rafiqul Hassan Siddiqui, learned counsel for the petitioner has referred to the case of Karachi Electric Supply Corporation v. National Industrial Relations Commission, reported in 1984 PLC page-408, in which, the then Chairman of the N.I.R.C. Held that categories of employees besides doing work themselves doing supervisory work in view of hierarchy of grades and layers of checking belonging to Grades-4 to 7 cannot be said to be employed in supervisory capacity, mainly because their pay exceeds Rs.800 per month. It was held that they fall within the definition of workman given in the above-quoted clause (xxviii) of Section 2 of the I.R.O.
He has also referred to the case of The Divisional Superintendent, Pakistan Railways Sukkur and another v. Abdul Aziz and 7 others, reported in 1986 PLC page-142, in which, the learned Labour Appellate Tribunal, Sind held that Grade-I Sub-Engineers who were doing manual work were workmen and were subject to the labour laws. It was further held that status of the respondent's employees as workmen was not challenged by the railway management before the Labour Court and, therefore, they cannot be allowed to raise the above point in appeal.
Reliance has also been placed on the case of Chief Personnel Officer, Pakistan Railways and another v. Bashir Ahmad, reported in 1986 PLC page 609. In this case, the learned Labour Appellate Tribunal, Punjab held that the burden to prove that the workman falls within the exception clauses
(a) and (b) of clause (viii) of Section 2 of the I.R.O. Is on the party pressing into service -the said clauses.
7. In the instant case, respondent No.1 has not led any evidence to indicate the nature of petitioner's duties. On the contrary, the petitioner's evidence that he performs manual work in maintaining the Signal Box with the assistance of two railway employees remains unchallenged. According to the petitioner, he draws wages sometimes of Rs.1,135 and sometimes of Rs.1,140 per month. It is true that the petitioner's wages are more than Rs.800 per month, but the mere fact that he draws wages more than Rs.800 per month would not attract the application of sub-clause (b) of clause (xxviii) of Section 2 of the I. R. O., as to exclude the petitioner from the ambit of the definition of worker and workman given therein.
But the moot point is, as to whether, the factum that under the Notification issued under the special provision to clause (viii) of Section 2 of the I.R.O. Declaring Sub-Engineer of Grade-II as "Employer" would exclude the petitioner from the purview of the worker and workman, as defined in the above clause (xxviii). As pointed out hereinabove, the above-quoted clause (xxviii) itself excludes an "employer" in terms of the I.R.O. From the definition of the worker and workman. We have to, therefore, examine, whether the petitioner has been properly declared as an "employer" in terms of the special provision of clause (viii) of the I.R.O., as it is an admitted position that the petitioner had obtained a Diploma from the Railway Technical School, Lahore and that the post of the Block Maintainer was re-designated as Sub-Engineer and upgraded to RNSP-11 in terms of the letter dated 4th April, 1979 referred to in Para-4 of the petition.
8. In order to attract the aforesaid special provision to clause (viii), it is necessary that the officers and employees of the department should belong to the superior, managerial, secretarial, directional --supervisory or agency staff. If an employee of the department does not fall within any of the above categories, he cannot be declared as an employer by issuing a notification in the official Gazette. Admittedly, the petitioner cannot be said to belong to managerial, secretarial or agency staff of the railway. It remains, therefore, to be examined --whether the petitioner can be said to belong to the superior, directional and supervisory staff. Since the above words have not been defined in the I. R. O., we will have to place literal construction upon them.
The Black's Law Dictionary, revised 4th edition defines the above words as follows:- "DIRECTION (Page-547)
"The act of governing; management; superintendence. Denton v. Yazoo & M.V.R.Co.Miss.284 U.S.305, 52 S.Ct.141, 142, 76 L.Ed.310. Also the body of persons (lolled "directors") who are charged with the management and administration of a corporation or institution. "The charge or instruction given by the Court to a jury upon a point of law arising or involved in the case, to be by them applied to the facts in evidence. The clause of a bill in equity containing the address of the bill to the Court. That which is imposed by directing; a guiding or authoritative instruction; order, command. State ex r.1: Johnson v. Tilley, 137 Neb 173, 288 N.W.521, 524; Hughes v. Van Braggen, 44 N.M.534, 105 P.2d 494, 496.
The line or course upon which anything is moving or aimed to move. Ruff v. Federal Tea Co; 129 Conn.455, 29 A.2d 441, 442.
SUPERIOR(Page-1606) n. One who has a right to command; one who holds a superior rank.
SUPERIOR adj. Higher; belonging to a higher grade. People ex r.1. McCoy v. McCahey, 296 111. App.310, 15 N.E.2d 988, 993. More elevated in rank or office. Possessing larger power, Entitled to command, influence, or control over another.
"SUPERVISOR.(Page-1607)
A surveyor or overseer; a high-way officer.
"Also, in some states, the chief officer of a town; one of a board of county officers. In a broad sense, one having authority over others, to superintend and direct. Cafferty v. Southern Tier Pub. Co; 226 N.Y.87, 123 N.E.76, 77."
It is doubtful that the petitioner can be said to fall within the category of the staff belonging to directional or supervisory as per above-quoted definitions of the above words. However, one view can be that as in the hierarchy, the petitioner belongs to the third ladder from the bottom i.e. Lowest being a Block Cleaner, then al Block Mistry and then comes a Block Maintainer, he has command influence or control over another and, therefore, is covered by the: above-quoted definition of the word "Superior".
9. Since we are hearing a Constitutional Petition against the orders of two competent forums, we cannot declare their orders as being without lawful authority, unless the view found favour with them is directly in conflict with the relevant provisions of law. If two views were possible and if the two forums below had taken one of the views, which this court might have not taken, it would not attract the Constitutional jurisdiction of this court.
We are, therefore, inclined to hold that the two courts in question could on the basis of the above special provision to clause (viii) of Section 2 of the I.R.O. Read with the Notification take the view that the petitioner was excluded from the ambit of the definition of "worker and workman" given in clause (xxviii) of Section 2 of the I.R.0., with the result that the petition has no merits and, therefore, it is dismissed, but there shall be no orders as to cost.
K. B. A. / M-279 / Q