JUDGMENTAJMAL MIAN, J.-This is an appeal with the leave of this Court against the judgment dated 20-4-1986 passed by a Division Bench of the High Court of Sind in Constitutional Petitions Nos.D-37 of 1984 and D-406 of 1984, filed by respondent No.1 and the appellant, respectively, against the judgment dated 3-12- 1983 passed by the learned Sind Labour Appellate Tribunal, Karachci, hereinafter referred to as the Tribunal, in Appeal No.KAR-84/83 filed by the appellant against the order of dismissal fo his application (18 of 1982) under section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., passed by the Yth Sind Labour Court at Karachi, allowing respondent No.1's above petition and dismissing the appellant's petition. Leave to appeal was granted to consider the questions; whether the learned Judges of the Division Bench erred in holding that the nature of duties performed by the appellant involved supervisory work though he was working under the Chief Accountant and was not Incharge of the Establishment or Section of the Establishment, and whether they were justified in holding that respondent No.1's office and factory were two establishments or two separate entities
2. The facts to be noted are that the appellant was employed by respondent No.1 as an Accountant in their office situated at Qamar House, Karachi, on 22-5-1981. The appellant's services were terminated on 9-12-1981 without assigning any reasons. The appellant served a grievance notice dated 12- 12-1981 under section 25-A of the I.R.O, upon respondent No.1, which was respondent to by the latter by sending a reply dated 14-12-1981 refuting the appellant's averments in his above grievance notice. Thereupon, the appellant filed aforesaid application on 13-12-1982 under section 25-A of the I.R.O, in the Court of Vth Sind Labour Court at Karachi.
7. The above application was resisted by respondent No.1, inasmuch as it was averred that the appellant was employed as an Executive with a salary of Rs.2700 per month and that he did not fall with the definition of the 'workman' given in the I.R.O./The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Standing Orders. It was also pleaded that the Head Office where the appellant was employed, was far away from the factory premises and that they were two separate entities. It was further averred that respondent No.1's Head Office at Qamar House does not fall within the ambit of the definition of 'commercial establishment' given in the Standing Orders, as the strength of the staff had always remained below ten.
8. In support of the above application under section 25-A of the I.R.O., the appellant examined himself, whereas the respondent No.1 did not examine any witness, but brought certain documents on record through the cross-examination of the appellant in order to show that he was the Incharge of the Accounts Department. The learned Vth Sind Labour Court, after hearing the arguments of the learned counsel for the parties on the question, whether the appellant was a workman within the ambit of section 2(i) of the Standing Orders Ordinance concluded as follows:- "The applicant himself has admitted this work of supervisory nature and the documents Exh.3/A, 3/B, and 3/C. From the admission of the applicant himself in the cross-examination and documents produced I am satisfied that the applicant was doing the work of supervisory nature.
From the nature of duties performed by the applicant coupled with the monthly salary drawn by the applicant of Rs.2700,1 am satisfied that the applicant is not a workman."
9. Whereas on the question, whether 0ie respondent No.1's Head Office where the appellant worked was a separate establishment, the ^learned Labour Court recorded the following finding:-The Respondent has produced the photostat copy of the Registration Certificate issued on Form 'C' under the West Pakistan Shops and Establishments Ordinance, 1969. This certificate has been produced as Exh.3/F. I have perused this Registration Certificate Form 'C'. This shows that the Respondent Establishment was registered under the Shops and Establishments Ordinance, 1969, on 31-3-1979. It was also renewed on 27-2-1981 from lst July 1981 to 30-6-1983. This shows that the Respondent Establishment is registered under the Shops and Establishments Ordinance, 1969 and the provisions of I.R.O. 1969 as well as Standing Orders Ordinance, 1968 are not applicable. During the cross-examination of the applicant, the learned Representative for the Respondent has produced the Salary Register as Exh.3/E. This Exh.3/E pertains to the year 1981 commencing from January, 1981. I find in this Register that the maximum number of employees working in this office is shown 7 persons. From these two. Documents viz. Exh.3/F Registration Certificate issued under theWest Pakistan Shops and Establishments Ordinance as well as Salary Register I am satisfied that the provisions of Shops and Establishments Ordinance, 1969 are applicable in the present case and as such the application is not maintainable in law."
10. After having held that the appellant was not a workman within the ambit of the above provisions of the Standing Orders and that respondent No.1's aforesaid office was a separate establishment having less than 20 persons, the learned Labour Court dismissed the appellant's aforesaid application by the aforesaid judgment dated 10-2-1983. Against the above judgment, the appellant filed aforesaid appeal which was allowed by the Tribunal by the afore-mentioned judgment dated 3-12-1983. On the question, whether the appellant was a workman or not, the learned Tribunal concluded as follows:-"On the admitted facts of the case, the appellant was working as an Accountant in the Head Office of the establishment at Qamar House at Karachi. It has been contended on behalf of the respondent that be was drawing salary at Rs.2,700 per month and that in fact he was holding a job of supervisory and managerial nature, inasmuch as he was supervising the work of 4 Accounts Clerks and 1 Peon. There is no doubt that the salary and the designation of the workman would not be a material factor to determine as to whether he was a workman within the meaning of section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, It would be a nature of duties which would determine his status as a workman. On the admitted facts of the present case, the appellant was working as an Accountant and was not doing, any managerial or supervisory duties except that four Accounts Clerks and a Peon were working under him in his Section. He was supervising and controlling only his branch of the establishment and was not supervising or controlling the entire establishment and, therefore, he cannot be considered to be doing a supervisory or managerial duties so as to be excluded from the definition of a workman within the meaning of section 2(i) of the Standing Orders Ordinance, 1968.
11. Whereas on the question, whether respondent No.1's aforesaid office was a separate establishment or not, the following was recorded by the Tribunal:- "The status of the establishment could .Not be altered only for the reason that the respondent obtained a certificate of registration- for the office situated at Qamar House under West Pakistan Shops and Establishments Ordinance, 1969. I find further from the record, the application made by appellant for calling documents from the '] ' respondent establishment obviously in support of the contention that. ,| ?Fn the establishment comprised of Head Office at Qamar House and factory at SITE area ;as< one entity^'with mor thanv 20 workmen . if employed in it, but the application was opposed by the respondent, and was rejected as belated. The fact speaks of the how fides on the part of the appellant. This fact coupled with the written reply filed by the respondent and sworn testimony of the appellant in that respect, would clearly establish the fact that the Head Office at the Qamar House and the factory at the S.I.T.E, area would form one entity and that there are more than 20 workmen employed therein, since there is specific and definite denial on the- part of the respondent establishment or any evidence led to the contrary in rebuttal, in my view the appellant has established satisfactorily that there are more than 20 workmen working in the establishment which includes as one entity the Head Office at Qamar House and the factory in the S.I.T.E, area and has discharged his burden of proof on that respect satisfactorily."
12. On the basis of the above conclusions, the learned Tribunal reinstated the appellant with 40% back benefits.
13. - Both the parties were aggrieved by the above judgment of the Tribunal, inasmuch as respondent No.1 filed aforesaid Constitution Petition No.D-37 of 1984 against the order of re- instatement of the appellant with 40% back benefits, whereas the appellant filed aforementioned Constitution Petition No.D-406 of 1984 against denying 60% of back benefits by granting only 40%.
Both the above petitions were disposed of by the aforesaid common judgment dated 20-4-1986, whereby respondent No.1's above Constitution Petition was allowed and whereas, the appellant's Constitution Petition was dismissed. Against the above judgment, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
14. In support of the above appeal, Mr. M.L. Shahani, learned A.S.C, appearing for the appellant, has urged as follows:-
(i) that the High Court was not justified to reverse the finding on the question of fact as to the status of the appellant recorded by the learned Tribunal, particularly keeping in view that respondent No.1 had not tendered any evidence in rebuttal of the appellant's evidence;
(ii) that the High Court was also not justified in concluding that respondent No.1's office and factory constitute two separate establishments particularly keegjng in view that there was unity of ownership, management and control; On the other hand, Mirza Abdul Rashid, learned ASC appearing for respondent No.1 has contended as under:-
(i) that respondent No.1's office was registered under the provisions of the West Pakistan Shops and Establishments Ordinance, 1969, hereinafter referred to as the Shops Ordinance, and, therefore, the appellant was entitled to one month's salary in terms of section 19 thereof and that the provisions of the I.R.O. Standing Orders Ordinance were not applicable to the appellant;
(ii) that the High Court was justified in holding that the appellant was not a workman as admittedly he was drawing a salary of Rs.2700 per month and that there was no other person Incharge of the appellant in the Accounts Section of the respondent No.1's office;
(iii) that the High Court has rightly concluded that respondent No.1's office and factory constitute two separate establishments or two separate entities.
15. We may first take up Mirza Abdul Rashid, learned counsel for respondent No.1's above first contention that the respondent No.s'l office was registered under the provisions of the West Pakistan Shops and Establishments Ordinance, 1969, and, therefore, the appellant was entitled to one month's salary in terms of section 19 thereof and that the provisions of the I.R.O./Standing Orders Ordinance were not applicable to the appellant it may be observed that in support of his above submission, he has invited our attention to the Certificates of Registration for the period from 1-7-1975 to 30-6-1977 and 1-7-1979 to 30-6-1981 issued under the Shops Ordinance by the Deputy Chief Inspector of Shops indicating that respondent No.1's office at Qamar House was registered under the provisions of the aforesaid Ordinance as a commercial establishment. On the basis of the above Certificates, he has referred to section 19 of the Shops Ordinance, which provides that for terminating employment of a permanent employee, one month's notice in writing shall be given either by the employer or by the employee and in lieu of notice, one month's wages calculated on the basis of average wages earned during the preceding three months and that for a temporary employee, whether monthly-rated, weekly-rated or daily-rated and for an apprentice, no notice is required for termination if termination is not as a punishment. Reliance was placed by him on the case of Sheikh Abdul Hafiz v. The Presiding Officer, Second Sind Labour Court and another (1976 PLC 846), in which a learned Single Judge of the erstwhile High . Court of Sind and Baluchistan has held that the provisions of the Standing Orders Ordinance were not applicable as the petitioner had not employed the required number of workmen as to make the provisions of the Standing Orders Ordinance applicable. It was further held that since the provisions of the Shops Ordinance were applicable, therefore, the petitioner could terminate the services in terms of section 19 of the said Ordinance.
16. We may observe that if the provisions of the Standing Orders Ordinance are attracted to a particular commercial establishment, the mere fact that such a commercial establishment might have been registered under the Shops Ordinance, would not exclude the application of the provisions of the Standing Orders Ordinance. In the present case, if we were to hold that the provisions of the Standing Orders Ordinance are applicable, the factum that respondent No.1's aforesaid office was registered under the Shops Ordinance would be of no consequence.
17. Adverting to the above first contention of Mr. Shahani that the High Court was not justified to reverse the finding on the question of fact as to the status of the appellant recorded by the learned Tribunal, particularly keeping in view the respondent No.1 had not tendered any evidence in rebuttal to the appellant's evidence, it may be observed that this Court in the case of GeneralManager, Hotel Intercontinental, Lahore, and another v. Bashir A. Malik and Others PLD 1986 SC 103 has laid down the following test in order to determine, whether an employee is a workman within the meaning of various statutes in the field of Labour Legislation: - "11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the filed of labour ' legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be 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 that 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."
In the above case, it was held that the respondent, who was a $hift Engineer for maintenance and rectification of Air-conditioning plant, boilers, laundry equipments, kitchen equipments and whose job included repairs of the electrical and mechanical parts, was not a workman in terms of section 2(i) of the Standing Orders Ordinance by applying the above test. Reference may also be made to the case of Rehmat Ali v. The Security Papers Ltd. And another PLD 1982 Karachi 913), in which a Division Bench of the Sind High Court to which one of us (Ajmal Mian J.) was a member, with reference to, inter alia, section 2(i) of the Standing Orders Ordinance, observed as follows:- "7. (a) We are inclined to hold that the words "any manual" and "work" employed in section 2(i) of the Ordinance are susceptible to a very wide connotation, and, therefore, they will cover a person, who performs any manual work while discharging his duties irrespective of the quantum of such manual work, provided he belongs o.a labour class. In our view the question, whether person predominantly performs a manual work or that manual work is incidental to his main work will be relevant when the question for consideration is, as to whether the person concerned falls within the category of worker or in a category which is excluded from being worker like in section 2 (xxxviii) of the I.R.O., the managerial staff or the person who supervises the work of others and draws monthly salary of Rs.800 are excluded from the ambit of the definition of worker and workman given in the above provision. It may be observed that when a Court is to determine whether a person falls within the category of a managerial staff or within the category of worker or workman, in that event this question is to be determined with reference to the factum as to whether the person concerned predominantly performs manual work or predominantly performs managerial work. Similarly if a person falls in the class of Executives like a General Manager or an Executive in a Company, in that even the mere fact that such a person uses his hands, which takes a fraction of the the of his working hours, will not make him a worker or workman within the ambit of either section 2(i) of the Ordinance or section 2(xxxviii) of the I.R.O.
However, where a person admittedly belongs to the labour class, in our view he cannot be excluded from the definition of the workman given in section 2(i) of the Ordinance on the ground that the performance of duties by him involves insignificant use of hands or that manual work takes a fraction of the as compared to the hours of duties. We cannot be unmindful of the fact that the Labour laws are beneficial laws provided for the labour class with the object to provide inexpensive and expeditious remedy before a Labour Court and, therefore, the Ordinance being a beneficial enactment is to be construed liberally in favour of the labour class and no restriction can be placed to the scope of the definition of workman, given in section 2(i) of the Ordinance."
It was held that a Security Guard was covered by the definition given in above section 2(i) of the Standing Orders Ordinance.
18. The above judgment of the High Court was upheld by this Courtthrough the judgment in the case of Security Paper Limited v. Sind Labour Appellate Tribunal and another PLD 1988 SC 180. The criterion laid down in the case of General Manager, Hotel Intercontinental, Lahore, and another v.
Bashir A, Malik and Others (Supra) was also reiterated.
19. In the present case, the learned Tribunal after appraising the evidence, concluded that the appellant fell within the ambit of the definition of the workman provided for in section 2(i) of the Standing Orders Ordinance. The High Court in constitutional jurisdiction could not have sat as a Court of appeal on the question of fact. The finding of fact recorded by a competent Tribunal can be interfered with by a High Court in exercise of constitutional jurisdiction if the same is based on no evidence or is rounded on misreading of evidence or is recorded by ignoring material evidence on record. However,a finding of fact cannot be interfered with by the High Court in exercise of constitutional jurisdiction merely on the ground that a different view on the basis of same evidence was possible.
20. In the instant case, as observed hereinabove, the appellant had examined himself in support of his application under section 25-A of the I.R.O., but respondent No.1 had not examined any evidence in rebuttal to the appellant's evidence. However, it had brought on record through the cross-examination of the appellant, statement book (Exh.3/4) prepared by one Mr. Iqbal, which used to be checked up by the appellant, Register of daily purchases (Exh.3/B) prepared by one Oamar, a Clerk employed by respondent by respondent No.1 containing some initials of the appellant against daily entries, Cash Book (Ex.3/C), vouchers prepared by aforesaid Iqbal containing appellant's initials in red ink made after checking the same, Salary Register (Exh.3/E) containing appellant's initials in redink and photostat copy of Form 'C' (Exh.3/F). The above dociunents no doubt indicate that the appellant was checking the work of his subordinates but this fact alone would.Not be sufficient to exclude him from the purview of the definition of workman given in section 2(i) of the Standing Orders Ordinance.
21. At this juncture, we may point out that there is a marked distinction between the definition of a 'workman' given in above section 2(i) of the Standing Orders Ordinance and that provided for in section 2(xxviii) of the I.R.O. It may be advantageous to reproduce the same hereinbelow:-"Section 2(i) of the Standing Orders Ordinance.-(i) "workman" means any person employed in any industrial or commercial extablishment to do any skilled or unskilled, manual or clerical work for hire or reward."
Section 2(xxviii) of the /.R.O.-"Worker" and "workman" means any person not falling within the definition of employer who is employed (including emloyment 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, lain-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."
22. A perusal of the above-quoted definitions indicates that the definition given in section 2(i) of the Standing Orders Ordinance is simpler as compared to the definition given in sub-clause (xxviii) of section 2.Of the I.R.O., inasmuch as it provides that the workman means any person employed in any industrial or commercial extablishment to do any skilled or unskilled, manual or clerical work for hire or reward. It does not speak of excluding a person who is employed mainly in a managerial or administrative capacity or who is employed in a supervisory capacity and draws wages exceeding Rs.800 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.
23. On the other hand, the above quoted definition of the terms "worker" and "workmap" provided for in clause (xxviii) of section 2 of the I.R.O, expressly excludes the above categories of persons as is evident from the perusal of it. In the instant case as the appellant had complained that there was breach of Standing Order 12(3) of the Standing Orders Ordinance, we will have to decide the question, whether the appellant is a workman or not with reference to the definition given in section 2(i) of the Standing Orders Ordinance and not with reference to the definition provided for in clause (xxviii) of section 2 of the I.R.O. An employee would not be a workman if he does not perform any skilled or unskilled, manual or clerical work or he is covered by the definition of 'employer' given in clause (c) of section 2 of the Standing Orders Ordinance, which provides as follows:- "(c) "employer" means the owner of an industrial or commercial establishment to which this Ordinance for the the being applies, and includes-
(i) in a factory, any person named clause (c) of sub-section (1) of ^ section 9 of the Factories Act, 1934 (XXV of 1934), a manager of the factory;(ii) in any industrial extablishment under the control of any department of the Federal or any Provincial Government the authority by such Government in this behalf, or where no such authority is so appointed, the head of the department;(iii) in any other industrial or commercial extablishment, any person responsible to the owner for the supervision and control of such establishment."
24. There is nothing on record to indicate that the appellant falls within any of the categories mentioned in above sub-clauses (i), (ii) and (iii) of above, clause (c) of section 2 of the Standing Orders Ordinance as to make him an employer in order to exclude him from the purview of the definition of "workman" provided for in above clause (i) of section 2 of the Standing Orders Ordinance. The High Court while setting aside the finding recorded by the Tribunal though has referred to the factum that the appellant used to supervise the work of Book Keeper, Cashier and Clerks, but at the same the, relied upon the definition of the 'worker' and 'workman' given in above clause (xxviii) of section 2 of the I.R.O, and observed as follows:- "A bare perusal of the definition of workman would show that a "supervisor" has been expressly included as a workman, a person employed in a "supervisory capacity" has been excluded, who either draws wages Rs. 800 per month or performs functions mainly of a managerial native There is a real distinciton between a "Supervisor" and a person employed in a "supervisory capacity." A supervisor is a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but has no power to engage or remove, take any other disciplinary action against the workers by his own authority. A person employed in a "supervisory capacity" on the other hand, is person who is head and incharge of his section in the establishment."
25. It may be pertinent to point out that Standing Order l2 deals with the termination of employment. Clause (3) of the same provides that "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 the 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".
26. The above clause in fact incorporates section 25-A of the I.R.O, by reference for the purpose of the breach referred to therein and not for the purpose of enforcement of other provisions of the Standing Orders Ordinance. As a corollary, it must follow that if the services of an employee are terminated in breach of above clause 3 of the Standing Order l2, he should fall within the ambit of the definition given in section 2(i) of the Standing Orders Ordinance and need not fall within the purview of the definition of worker' and 'workman' provided for in clause (xxviii) of section 2 of the I.R.O. However, if an employee wants to press into service section 25-A of the I.R.O, for enforcing any other right granted under the Standign Orders Ordinance other than the right covered under clause (3) of Standing Order l2, he should also fal within the definitin of the 'worker' and 'workman' provided for in above clause (xxviii) of section 2 of.The I.R.O., which is somewhat different from the definition given in the Standing Orders Ordinance, inasmuch as it excludes an employee who is employed mainly in managerial or administrative capacity and who is employed in a supervisory capacity and draws wages exceeding Rs.800/- per mensem or performs either because of the nature of duties attached to the office or by reason of power vested in him, functions mainly of managerial nature as pointed out hereinabove.
23. It is apparent from the judgment under appeal that the High Court has misapplied the definition of the 'worker' and 'workman' given in the I.R.O, to the present case. Since there was no evidence produced by respondent No.1 in rebuttal to the appellant's evidence or to show that the appellant does not perform the works specified in section 2(i) of the Standing Order Ordinance or that he falls within the ambit of any of the categories specified in the definition of the term 'employee', the Tribunal could hold that the appellant fell within the definition of the 'workman' under section 2(i) of the Standing Orders & Ordinance and the High Court was not justified in reversing the above finding in the absence of any legally admissible ground. The mere fact that the appellant was drawing a salary of Rs.2700/- per month itself was not sufficient to hold that he was not a workman within the ambit of the above provision. In this regard, reference may be made to the judgment of this Court in the case of Dost Mohammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1969 SCMR 304), in which respondent No.1 was appointed as the Chief Accountant in March, 1969, and was drawing a salary of Rs.1,050/- per month.. This Court maintained the judgment of the High Court, which upheld the judgment of the Labour Court on the question that respondent No.1 was a workman within the purview of section 2(i) of the Standing Orders Ordinance as he was to at on the instructions from one Farid Khan, though he was designated as the Chief Accountant. In the present case, according to the appellant, he was to at under the supervision of Mr. Zafar, Chief Accountant, who was Incharge of the three concerns of respondent No.1.
24. Reverting to the above second contention of Mr. Shahani that the High Court was also not justified in concluding that respondent No.1's office and factory constitute two separate establishments particularly keeping in view that there was unity of ownership, management and control, it may be stated that clauses (b) and (f) of section 2 of the Standing Orders Ordinance define the terms "commercial establishment" and "industrial establishment", respectively. The former has been defined ^as means "an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishment or class thereof, as Government may by notification in the official Gazette, declare to be a commercial extablishment for the purpose of this Ordinance;" Whereas, the latter term has been defined as means-
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or(ii) a factory as defined in clause (j) of section 2 of the Factories Act, 1934 (XV of 1934); or(iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on; or(v) the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry;Explanation.-"Contractor" includes sub-contractor, headman or agent."
25. It may be observed that from the definitions of the above terms, it is evident that a clerical department of a factory has been included in the definition of the term "commercial establishment" and not in the term "industrial establishment". Even under the Factories Act, the above distinction has been kept inasmuch as the term "factory" has been defined as means any premises including the precincts where ten or more workers are working or were working on any day of the preceding twelve months and in any part of which, a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power excluding a mine which is subject to operation,of the Mines Act, 1923. In the above Act, "worker,'has been defined as means a person employed directly or through an agency whether for wages or not, in any manufacturing process or cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work whatsoever, incidental, to or connected with the subject of manufacturing process but it excludes any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on.
26. It is, therefore, evident that for the purpose of Standing Orders Ordinance, the clerical department of a factory is distinct from the industrical establishment. However, Mr. Shahani has relied upon the case of The Associated Cement Companies Ltd., Chaibasa Cement Works, Jhinkpani v. Their Workmen (S.T.R. 1960 S.C.56), in which the Indian Supreme Court has held though the limestone quarry was situated in Agra, and the factory was istuated in Delhi but since there was unity of ownership, unity of management, supervision and control, unity of finance and employment, unity of labour and conditions of service and workmen, functional integrality, general unity of purpose and geographical proximity, it was one establishment in the absence of any test provided for in the Industrical Disputes Act, 1947.He has also referred to an unreported judgment of a leamed Single Judge of the Sind High Court in the case of Pakistan Steel Peoples Workers' Union v.
The Registrar of Trade unions, Government of Sind, Karachi (Constitution Petition No.S-33 of 1990 decided on 19-4-1990), in which the above judgment of the Indian Supreme Court was followed.
He has further referred to the judgment in the case of Messrs Jang Publications Ltd. v. Registrar of Trade Unions, Sind and another (PLD 1984 Kar 292), in which a Division Bench of the Sind High Court to which one of us (Naimuddin, J.) as a member, while construing sections 22-EE, 22-A(8)(e) and 22 of the I.R.O., held that the petitioner had establishments in three different Provinces of the country which are managed and controlled under one Board of Directors, who formulate policy and switch policy decision from one centre and have three segments of work force, each independently working under the banner of its own trade union, yet has a unity of interest because of its working under one umbrella.
27. On the other hand, Mr. Mirza Abdul Rashid has relied upon the case of Muhammad Aqil v. Sind Labour Appellate Tribunal and another (PLD 1978 Kar 649), in which a Division Bench of the erstwhile High Court of Sind and Baluchistan with reference to the term "establisment" defined in the I.R.O., has inter alia held as follows:-- "7. From the aforesaid definition it would appear that an employer may have more than one establishment, for example, offices in a commercial area, shops in business area or one or more industrial units in an industrial area and the expression "establishment" would include not whole of the establishment of an employer but each of them individually. That an employer may have more than one establishment for carrying on his industry or for the purpose of his industry is clearly envisaged by provisions contained in the then section 22-A of the Industrial Relations Ordinance, 1929."28. The above judgment of the Indian Supreme Court is distinguishable as the relevant statute which was the subject-matter of the case, did not provide any test for determining the question, whether there would be one establishment or two establishments, if an employer had establishment at more then one place of the same factory. Whereas, the Standing Orders Ordinance has clearly demarcated an "industrial establishment" and a "commercial establishment" separately. The above judgment of the Division Bench of the Sind High Court has also no relevancy as it deak with the question of the election of a bargaining agent and it was held that there could be different unions working in three different cities and that there could be a bargaining agent for a particular union or establishment.
29. Having held that under the Standing Orders Ordinance, the clerical office of an industrial establishment will fall within the ambit of the definition of "commercial establishment" and not within the purview of the difmition of "industrial establishment", it must follow that respondent No.1,s office at Qamar House was a separate establishment from the factory. The learned Labour Court found that there were only seven persons working in the office on the basis of Salary Register (Exh.3/E), whereas the appellant in his cross-examination stated that there were about 19 persons working in respondent No.1's office at Qamar House. In any case, the total strength of the staff was less than 20 and, therefore, the provisions of the Standing Orders Ordinance were not applicable to respondent No.1's office. The High Court Judgment is, therefore, sustainable on the above ground.
We would, therefore, dismiss the above appeal, but there will be no order as to costs.