DECISION This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 17-1-1989, whereby the grievance petition filed by the appellant was dismissed on the ground that it was not maintainable.
2. I have heard Mr. Mirza Muhammad Kazim, the learned Advocate for the appellant and Mr. Makhdoom Ali Khan, the learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. Admittedly the appellant was employed by the respondents as a school teacher when her services were terminated, vide order, dated 3-1-1987. Being aggrieved by this order, she served grievance notice upon the respondents and failing to receive relief, filed grievance petition before the learned Labour Court. The respondents resisted the grievance petition mainly on the ground that the appellant was not a workman and that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance) was not applicable to the establishment of respondents.
4. Admittedly the respondent is a Private Limited Company who runs a chain of Schools. Admittedly the respondent is a Unit of Joint Stock Company. Admittedly a Unit of Joint Stock Company is listed as one of the establishments within definition of a commercial establishment under Standing Order 2(b) of the Ordinance.
5. Only three points are raised by the learned counsel for the respondents which require consideration. Firstly, it is contended that the appellant is not a workman as defined under section 2(i) of the Ordinance. Secondly, there is no evidence to show that more than 20 workers were working in the establishment of the respondents so as to make the Ordinance applicable to the establishment. Thirdly, that the respondents being a company which promotes education for the welfare of the society is exempted from the application of the Standing Orders Ordinance.
6. A 'workman' as defined in the Ordinance means any person employed in a commercial establishment to do any skilled, unskilled, manual or clerical work for hire or reward. The appellant in her grievance application as well as in evidence has stated that she was performing manual and clerical work in checking class work and home work of students and in teaching work which includes writing on the blackboard, which work involves physical labour. It is admitted by the witness of the respondents, Mr. Rasheeduddin, that while taking the class, the applicant used to write on the blackboard. Mr. Makhdoom Ali Khan, the learned counsel contends that the main work for which the appellant was engaged was teaching and not writing, and that writing on blackboard was incidental or ancillary to her main work and, therefore, even such work would not bring her within ambit of the definition of a 'workman'. In support, he has relied upon the case of Security Papers Limited v. the Sindh Labour Appellate Tribunal reported in PLD 1988 SC 180, wherein their Lordships have observed-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. It is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition.
The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
7. Admittedly the appellant was engaged as a teacher. Mr. Makhdoom Ali Khan, the learned counsel for the respondents has relied upon the definition of `teacher' as defined in Black's Law Dictionary--Fifth Edition; which means "one who teaches or instructs; especially one whose business or occupation is to teach others". Word 'teach' is defined in the same Dictionary--"to impart knowledge by means of lessons; to give instruction in; communicating knowledge; introducing into or impressing on the mind as truth or information, and may be done as well through written communications, personal direction, through the Public Press, or through any means by which information may be disseminated." Thus, from the definition of words 'teacher' and 'teach', it is clear that one of the jobs of a teacher is to impress upon the minds of students information through written communication. A teacher has to teach the students not only to read but also how to write. The appellant was teaching the children and unless they could understand and know the letters and words, no knowledge could be imparted to them. Therefore, one of her main functions would be to impart the knowledge of letters and words to the students by writing the same on the blackboard, writing on their copies and checking and correcting the writing of the students. Therefore, this part of the job of the appellant which involves manual and clerical labour cannot be considered as only incidental or ancillary to her job, but, one of the main part of her job.
Applying the test as laid down by their Lordships in the aforesaid case, there can be no dispute that the appellant is a `workman/`woman', as defined in the Ordinance. It is not disputed, that the respondent is a commercial establishment and that the appellant was being paid her salaries for the work done by her. The first objection of the learned counsel for the respondents, therefore, stands disposed of.
8. With regard to the second objection, admittedly, there is no direct evidence on record led by any party to show as to what number of the workmen/teachers. was employed by the respondents. Mr. Mirza Muhammad Kazim, the learned Advocate for the appellant contended that the very fact that the appellant had alleged that while terminating her services, the provisions of the Standing Orders had been violated, would show, that the appellant claimed that the Standing Orders Ordinance was applicable. It is further submitted that in para. 2 of the grievance petition which had been adopted as part of the evidence y the appellant in her affidavit-in-evidence, she has alleged that the respondents ere running various commercial schools. He further contends that admittedly he appellant was transferred by the respondents from one school to another school, which shows that the respondents were running more than one school. It is further submitted that these averments of the appellant have not been challenged in the cross-examination. It is submitted that it would be respondents ho would know the fact as to how many teachers were employed in their various schools and who had the record of such employees, therefore, it was for the respondents to prove and to show that they did not employ more than 20 workers/teachers. It is further submitted that the grievance petition under section -A, I.R.O., 1%9, for the enforcement of the rights under Standing Orders Ordinance; filed by the appellant was admitted by Labour Court and it was the respondents, who claimed ouster of the jurisdiction of the learned Labour Court y claiming that the Ordinance was not applicable to their establishment, therefore, the burden of proof shifted upon them. It is, therefore, submitted by r. Mirza Muhammad Kazim, learned Advocate for the appellant that non- production of the evidence, which was within the power and possession of the respondents, would raise presumption against them.
9. Mr. Mirza Muhammad Kazim had relied upon a decision of this tribunal in the case of Abdul Wahid v. Messrs Bombay Silk Mills, reported in 988 PLC 221. In that case, the provisions of the Ordinance were asserted to be applicable, but, the respondents took the plea that the number of workers were than 50. As no document in support of such plea was produced, the plea that e Ordinance was not applicable was rejected. Mr. Makhdoom Ali Khan, the learned counsel for the respondents has, however, contended that the burden of roof was upon the appellant as she has asserted that the provisions of the ordinance were applicable. In my view, there appears to be great force in the contentions of Mr. Mirza Muhammad Kazim, learned Advocate for the appellant. am inclined to agree with him that the burden of proof was upon the respondent ho has failed to prove that the number of workmen employed by them was less than 20 or 50. This objection of the learned counsel for the respondents is also rejected.
10. With regard to third objection, admittedly, the respondent runs schools where they teach the children. Admittedly, they charge fees and the respondent is a private limited company. Mr. Makhdoom Ali Khan, the learned counsel has relied upon the decision of a learned Division Bench of Sindh High Court at Karachi in the case of Employees' Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 others, reported in 1981 PLC 403; where their Lordships have held that the University and Board was not an industry as defined under section 2(xiv) of the Industrial Relations Ordinance, 1969." Their Lordships came to the conclusion "that the services rendered by University and Board of Education entirely depended upon contribution of learning, research, study, knowledge of men of letters and the benefit which a student gets or community at large receives from University is completely different and distinguishable from benefit of service which provides community with use of some thing such as hotel, electric power, transportation, main delivery etc. Such distinctive character of University distinguishes it from institutions providing material service and absence of material nature of service keeps University and Board out of pale of word "industry".
Duties performed by employees of University and Board were incidental, ancillary or an adjunct to main object and purpose of University and Board and, therefore, cannot determine their character".
In the reported case, the question at issue was whether the University or Board of Education was 'industry' as defined in the Industrial Relations Ordinance, 1969, and whether the employees of such University or Board could form a Union under the Industrial Relations Ordinance. Reliance is also placed on the decision of this Tribunal in the case of Ghulam Sarwar v. Principal, Government Teachers Training College, Khairpur, reported in 1982 PLC 771, wherein this Tribunal has held that "the Teachers Training College and Educational Institutes did not fall within the definition of 'industrial' or 'commercial' establishments and the employees of such Institutes were not entitled to file grievance petition against the termination of their services under Industrial Relations Ordinance. Standing Order 12(3) of the Ordinance was held to be not applicable to the case of such teachers." In the case of Muhammad Manshah v. All Industrial Technical Institute, reported in 1985 PLC 604; it was held by the learned Labour Appellate Tribunal, Punjab; "that Industrial Technical Institute imparting training, charging fee for training and selling machinery parts manufactured in process of training was not an industry to make labour laws applicable." Grievance petition of employee of such Institution seeking reinstatement in service was held "rightly not entertained by Labour Court on grounds of jurisdiction."
11. Mr. Mirza Muhammad Kazim, learned Advocate on the other hand has relied upon the decision of the learned Single Judge of Lahore High Court in the case of Anjuman Faizul Islam v. Pakistan etc. reported in 1988 PLC 937; wherein it was held that employees of organisation of a charitable and religion nature were entitled to Old Age Benefits and such an organisation would for under definition of 'establishment' as defined in the Employees Old Age Benefits Act, 1976--section 2(e)."
12. It is submitted by Mirza Muhammad Kazim, learned Advocate for the appellant that all the cases relied upon by Mr. Makhdoom All Khan, the learned counsel for the respondents, pertain to Educational Institutions and not to private companies. The purpose of educational institutions in the reported cases was only to impart education and knowledge to the public-at-large. However, the purpose of a limited company can be gathered from its memorandum and Articles of Association which have not been produced by the respondents before the learned Labour Court. It is further submitted that the appellant is not the employee of an educational institution, but, is an employee of a private limited company who runs certain schools on commercial basis and where main purpose is to earn profits and to distribute the same amongst the stock-holders of the company. It is submitted that the Companies Ordinance, 1984 has special provision with regard to companies which are registered only for the charitable and educational purposes. It is section 42 of the Companies Ordinance 1984, which is equivalent to section 26 of the repealed Companies Act. Section 42 is reproduced as under:- "42. Power to dispense with 'limited' in the name of charitable and other companies:--(1) Where it is proved to the satisfaction of the Authority that an association capable of being formed as a limited company has been or is about to be formed for promoting commerce, art, science, religion, sports, social services, charity or any other useful object, and applies or intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Authority may grant a licence and direct that the association be registered as a company with limited liability without the addition of the words 'limited', "(Private) limited" or "
(Guarantee) limited", as the case may be, to its name and the association may be registered accordingly.
(2) A licence under subsection (1) may be granted on such conditions and subject to such regulations as the Authority thinks fit and those conditions and regulations shall be binding on the association and shall, if the Authority so directs, be inserted in the memorandum and articles, or in one of those documents.
(3) the association shall on registration enjoy all the privileges of a limited company and be subject to all its obligations, except those of using the word or words 'limited' (Private) limited' or '(Guarantee) limited', as the case may be, as part of its name.
(4) A licence under this section may at any time be revoked by the Authority, and upon its revocation the Registrar shall enter the word or words 'limited', Private) limited', or '(Guarantee) limited', as the case may be, at the end of the name of the association upon the register, and the association shall cease to enjoy the exemptions and privileges granted by the proceeding subsections; Provided that, before a licence is so revoked, the Authority shall give to the association notice in writing of its intention, and shall afford the association an opportunity of submitting a representation in opposition to the revocation."
13.The companies registered under section 42 are also entitled to exemption from Income-tax under section 15-D of the Income Tax Act of 1952. It is not the case of the respondents that their company is registered under section 42 of the Companies Ordinance or that they have obtained any exemption under section 15-D of the Income Tax Act. The memorandum and Articles of Association of the company have also not been produced to show that the profits earned from the company would be applied to promote its charitable educational objects or they would not be distributed amongst the stock-holders. It is not denied that the respondents earn profits.
Admittedly their accounts are audited every year but the balance-sheets of their accounts have not been produced to show whether the respondents have earned profit or not and that for what purpose same were applied.
14. The mere fact that the company is running some schools where they charge fees would not necessarily mean that the company has been floated only for the purpose of imparting education to the public-at-large or transmitting knowledge to the society. If the contentions of the respondents are accepted then any publishing company, which prints books would also be exempted from the Standing Orders Ordinance, because by publishing books they would also be helping in imparting knowledge to the public-at-large and helping in the education of the society.
15. As pointed above, the respondents fall within the definition of a commercial establishment as defined in the Ordinance as admittedly it is a Unit of Joint Stock Company. It has already been held that the respondents have failed to prove that they engage less than 20 workers. As such, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would be applicable to the respondents under section 1(4-A) of the Ordinance. The Ordinance does not provide for exemption from the application of the Ordinance to the companies running schools.
There is also another distinction between the facts of the cases relied upon by Mr. Makhdoom Ali Khan and in the instant case. The educational institutions, Universities and Boards are not included in the definition of commercial establishments under the Ordinance. However, in the aforesaid decision, these institutions have been distinguished from the industries as defined in the Industrial Relations Ordinance, 1969, and have been held not to be 'industry' within the meaning of Industrial Relations Ordinance. Even, if it is held that the respondents are not 'industry' as defined in Industrial Relations Ordinance, still the appellant would not be barred from enforcing her rights guaranteed under Standing Orders Ordinance by filing petition under section 25-A, I.R.O., 1969, because that section entitles the workman to seek relief to enforce the rights which are guaranteed to him by any law. Word 'any' is wide enough to include the right guaranteed under the Standing Orders Ordinance.
16. It is contended by Mr. Mirza Muhammad Kazim that while terminating the services of the appellant, the respondents have committed violation of Standing Order 12(3) of the Ordinance, which reads as under:- "12(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
17. In the termination order which has been produced as Annexure 'C' with the grievance petition, the appellant was informed that the respondents would not require her services from 5-1-1987 and since she was a confirmed employee, she would be paid one month's salary. It is submitted by Mr. Makhdoom Ali Khan that this order complied with the provisions of Standing Order 12(3) as it shows the reasons for termination of services of the appellant and also gives her one month's pay in lieu of notice. He had relied upon a decision of a learned Division Bench of Peshawar High Court in the case of Saadat Khan v. N.-W.F.P. Labour Appellate Tribunal and 2 others, reported in 1989 PLC 506, wherein it has been held that "the service of a permanent workman can be terminated if no longer required, but, then he has to be given one month's notice or one month's wages in lieu of notice".
This case was decided on 12-2-1989. However, there is an unreported decision of a learned Division Bench of Sindh High Court at Hyderabad in Constitution Petition No, D-31 of 1985, Ghulam Ahmad v.
S.L.A.T. and 2 others, decided on 31-10-1989. In that case, their Lordships have observed as under:- "The statement that service is no longer required, in our view cannot be a reason for terminating the services because it calls for further inquiry that what are the reasons that the service is no longer required. This cannot be a ground or reason for termination. It is merely the outcome of the undisclosed reasons which seem to be disclosed in the evidence. The reasons for termination should be clear, unambiguous, and understandable. Mere statement that service is no longer required is an expression of desire, whim and caprice which is absolute without any reason or ground. These words do not give any reason except that this is what the employer wants to do. The law provides and imposes restrictions on such unfettered powers of the employer and therefore, such a statement will not be in accordance with law."
Their Lordships have further observed that "the wisdom behind this provision seems to be that the workman whose services are terminated must be made aware of the facts leading to termination, or else it will not be possible for him to challenge it in a proper manner".
18. In the evidence it has come in para. 7 of the affidavit-in-evidence, filed by Mr. Rasheeduddin, witness of the respondents that "the management was compelled to discontinue the services of the applicant because she failed to improve her teaching standard and class control". In view of the decision of their Lordships in the aforementioned case of Ghulam Ahmad, the words "service no longer required" do not disclose any reason for the termination of service, in fact, such an undisclosed reason would seem to be disclosed in evidence. As pointed above, in evidence it seems that the services of the appellant were terminated for inefficiency or misconduct as she had failed to improve her teaching standard. Standing Order 12(3) would apply only in those cases where the services of the workman are terminated for reasons other than the misconduct. But, if the services of the workman are terminated for misconduct, the provisions of Standing Order 15(4) would be applicable. Admittedly these provisions have not been complied with by the respondents in the present case. Thus, while terminating the services of the appellant the respondents have neither complied with the provisions of Standing Order 12(3) nor with the provisions of Standing Order 15(4) of the Ordinance. As such, this termination order is illegal and not sustainable.
19. I, therefore, allow the appeal, set aside the impugned order of the learned Labour Court and order terminating the services of the appellant. The appellant is ordered to be reinstated in service with full back benefits. The order is to be complied within one month. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.