' Municipal Corporation, Faisalabad, in this Constitution petition has challenged the order dated 25th July, 1987, of the Commissioner Workmen's Compensation, Faisalabad, directing the Corporation to deposit a sum of Rs,15,000 for disbursement to the heirs of Yunus Masih, deceased employee of the Corporation as group insurance amount, as well as judgment dated 4-10-1987 of the Punjab Labour Appellate Tribunal, Lahore, dismissing the appeal of the Corporation and thereby affirming the aforesaid order of the Commissioner, Workmen's Compensation. The case of the petitioner Corporation, throughout, was that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, does not apply to the employees of the Municipal Corporation as the Corporation has its own statutory rules namely Municipal Corporation Bodies Group Insurance Conduct Rules, 1979, rule 4 of which provides group insurance amount of Rs,7,500 for employees in pay scales 1 to 4. Yunus Masih deceased was a Sweeper and in the capacity of regular employee of the Municipal Corporation was being paid monthly salary and the Corporation was agreeable to pay a sum of Rs, 7,500 to him as admissible under the aforesaid rules. The Commissioner, Workmen's Compensation as well as the President of the Punjab Labour Appellate Tribunal repelled the contention of the Corporation with the observations that, there is nothing on record to show that the Municipal Corporation, Faisalabad, is either a department of the Government or is functioning under the authority of the Government; the establishments which are running or have been found under a statutory provision do not require the authority of any sovereign body. The Standing Orders Ordinance, 1968, therefore, applies and according to clause 5 of Standing Order 10-B, group insurance amount is to be determined according to the provisions of Workmen's Compensation Act and that Schedule IV of the said Act fixes Rs,15,000 as the insurance amount for employees whose wages are from Rs,300 to 1,000.
2. Mr. Najam-uz-Zaman, learned Assistant Advocate-General argued that Standing Orders Ordinance is not applicable to the employees of the Municipal Corporations as these Corporations exercise sovereign and legal functions of the State and as such cannot be termed as an "Industrial or Commercial Establishment". In support reliance was placed on Muhammad. Nawaz v. Sindh Labour Appellate Tribunal 1982 PLC 1002, a judgment of the Division Bench of Karachi High Court, and on the case of Karachi Metropolitan Corporation v. Mst. Shamsul 1986 PLC 349. Mst. Nawab Bibi, respondent No, 1, widow of Yunus Masih, appeared in person and stated that she is not in a position to engage a counsel and that the Court may examine merits of the controversy itself and direct payment of amount legally due and payable to her.
3. I have examined the controversy on merits myself. The factual background of the controversy in the case of Muhammad Nawaz (Supra) was that Muhammad Nawaz along with others was charged under the Gambling Ordinance for gambling in the KMC Fire Brigade Building. The accused pleaded guilty and the accused were convicted and penalty of fine was imposed by the Court. The Corporation after conviction issued a show-cause notice which was replied and consequently Muhammad Nawaz with others was dismissed from service. The appeal filed under the rules was dismissed by the Chief Officer of the Corporation. Thereafter an application under section 25-A of the IRO was filed before the Labour Court which was allowed on the ground that there has been violation of the Standing Orders Ordinance as they were not charge-sheeted and no inquiry was held. The learned Judges with regard to the contention that the KMC being a statutory Corporation is not covered by the proviso to clause (c) of section 1 of the Ordinance, observed as under:- "In our view the above contention is devoid of any force inasmuch as the Ordinance is applicable to industrial and commercial establishments. It cannot be denied that respondent No,2 can be termed as an establishment which is being run under the Provincial Government though it has a corporate status. In support of the above contention Mr. Muslim Naqvi has referred to the case of KDA v. Presiding Officer, Sindh Labour Court, Karachi and 2 others PLD 1976 Kar. 514 wherein a learned Single Judge of the Erstwhile High Court of Sindh and Balochistan held that since the KDA has its own statutory rules namely the KDA Employees (Efficiency and Discipline) Regulation, 1970, the Ordinance was not applicable to it though a workman can approach a Labour Court under the IRO on the ground that the KDA has not followed its own statutory rules which question can be inquired into by the Labour Court."
' The learned Judges of the Division Bench further held that "we are inclined to hold that if there are statutory rules framed under law by a Statutory Corporation relating to its employees and if there is no inconsistency between the provisions of the Ordinance and the Rules, the Statutory Corporation can press into service its own statutory rules."
4. In the other case of KMC v. Mst. Shamsul (Supra) a learned Single Judge of the Karachi High Court observed that the KDA can be treated as an establishment which is being run under the Provincial Government though it has a corporate status. The reasons for recording the aforenoted view have not been given in the judgment, may be for the reason that reliance was placed before the learned Judge on three other decided cases noted therein.
5. As against the view taken by the learned Judges of the Karachi High Court in the aforenoted cases, the Presiding Officer of the Punjab Labour Appellate Tribunal in LDA (WASA) v. Salahuddin 1983 PLC 281 and Director Administration LDA v. Muhammad Razaq 1990 PLC 689 has held that LDA is. Not functioning under the authority of the Government and is covered by the definition of 'construction industry' and as such is not ousted from the ambit of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Both these are cases of employees of WASA a part of the LDA. In the latter case reference is also made to a judgment of the Supreme Court, Salahud din v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 observing that LDA has not been mentioned in the said judgment while enumerating the statutory corporations such as National Bank of Pakistan, WAPDA, National Shipping Corporation, Agricultural Development Bank of Pakistan and the Universities, as bodies performing functions in connection with the affairs of the Federation or a province. It is further observed that this does not mean that the aid bodies are working under the authority of the Government. Reference may also be made to the case of WAPDA v. Ch. Inayat Ali 1990 PLC 618 wherein the then Presiding Officer of the Labour' Appellate Tribunal held that WAPDA is not covered under the provisions of section 1(4)(c) of the Standing Orders Ordinance as it is neither carried on by or under the authority of Federal Government nor its Rules are statutory rules of service. It may be pointed out that reference to the Supreme Court case of Salahuddin (supra) is not apt as the question involved was altogether different in the said case.
6. There is yet another case of Municipal Committee decided by the learned Presiding Officer of the Punjab Labour Appellate Tribunal, namely Municipal Committee, Hafizabad v. Munawar Tahir 1989 PLC 646 wherein the view taken is that Municipal Committee constituted under Punjab Local Government Ordinance, 1979, is an autonomous body, neither a department of Government nor working under the authority of the Government and as such is not ousted from the ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. This was a case of misconduct.
7. In all these cases the basis for applying the Standing Orders Ordinance is that the establishment should not be running under the authority of the Government and should have statutory rules. The matter is not as simple as it has been taken for bringing these bodies within the ambit of the provisions of Standing Orders Ordinance, 1968. The relevant extract of the provisions of he Ordinance may be reproduced:-- "1(4) It applies to--
(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months; and (c)Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein:
2. Definitions--- In this Ordinance, unless there is anything repugnant in this subject or context--
(b) `commercial establishment' 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, employes 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 establishment for the purpose of this Ordinance;
(bb) 'Construction industry' means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundation of, any such work or structure;
(f) 'industrial establishment' means---
(v) the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry;"
8. The learned Presiding Judge of the Punjab Labour Appellate Tribunal has taken the view that the bodies created under the statute like L.DA./WASA, WAPDA, Municipal Committees can be termed as a person and as the L.DA./WASA are engaged in maintenance and construction of roads, sewer, water works etc. They fall within the definition of the term `construction industry' and as such are to be treated as an industrial establishment. As regards Municipal Committees it has been observed that as these bodies are running under the statute and not under the authority of the Government, they do not fall within the purview of the proviso to clause (4) of section 1 of the Standing Orders Ordinance, 1968 and hence the provisions of the Ordinance are to prevail.
9. To hold and lay down and direct that to every employee of the municipal body, the provisions of Standing Orders Ordinance apply, would not be in accord with the provisions contained in the Ordinance itself. It will be seen that in so far as Municipal Committees perform the functions of levy and collecting of taxes or maintaining cleanliness, providing health care services, they are performing Government functions. The workmen engaged by the Municipal Committees to perform the functions which are in the nature of the regal or the sovereign functions of the Government which stand delegated to the Committees under the law will not fall within the purview of the terminology employed while defining the term 'construction industry', a term with reference to which such bodies are being treated as industrial establishments. The question of applying the proviso would arise if the B particular body itself can be termed as an 'industrial establishment' or `commercial establishment'. At the same time a body in its entirety may not be a commercial or industrial establishment but a cart of it may be such an establishment and to the workers of such part the Standing Orders Ordinance may be applicable but not to the whole. The application of the Ordinance in case of each worker has to be decided on consideration of necessary facts and C the attending circumstances. In the instant case the worker whose heirs are seeking the benefit of Standing Order 10-B of the Standing Orders Ordinance was a sweeper employed at best for sanitary work. He by no stretch of imagination can be claimed to have been employed directly or indirectly for the purpose of construction industry.
10. I may add that the view of the Presiding Officer that the municipal bodies cannot claim that the proviso to clause (4) of section 1 of the Ordinance applies to them is correct as the Municipal Committee cannot be considered to be carried on by the Government or under the authority of the Government. The powers conferred on certain officers to perform certain functions or to regulate or supervise the functions of the municipal bodies or local councils do not mean that these bodies are being carried on by the Federal or the Provincial Government or under the authority of these Governments. The learned Judges of the Supreme Court of India in Heavy Engineering Mazdoor Union v. State of Bihar AIR 1970 SC 82 considered the question 'is the undertaking carried on under the authority of the Central Government' and observed that the word 'authority' must be construed according to its ordinary meaning and therefore, must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. There clearly arises in such a case the relationship of a principal and an agent. The words 'under the authority of mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. Can the respondent-company, therefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a company incorporated under the Companies Act, whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association.
11. Similar is the situation here. These bodies are creation of the statute. As they are performing statutory functions they cannot be held to be acting under the authority of the Federal or Provincial Government. In the instant case though the Municipal Committee cannot avail the provisions contained in the proviso yet the respondent cannot be held to be employed in a construction industry/industrial establishment so as to avail the provisions of Standing Order 10-13 of the Standing Orders Ordinance, 1968. This being the position the Ordinance did not apply to the deceased employee of the Municipal Corporation, Faisalabad, as its employees are admittedly governed by statutory rules whereunder the heirs are entitled to receive insurance amount of Rs,7,500 only which amount has already been received by them. The impugned order of the Presiding Officer of the Labour Appellate Tribunal is thus unwarranted in law and merits to be quashed. This petition, therefore, succeeds with the result that the impugned judgments are hereby declared to have been passed without lawful authority and hence of no legal effect. The parties are, however, left to bear their own costs.