AJMAL MIAN, J.-This is an appeal with the leave of the Court against the judgment, dated 12-11-1985 passed by a Division Bench of the Lahore High Court in Writ Petition No.4074 of 1985, filed by the appellant, dismissing the same and maintaining the judgments of the Punjab Labour Court and the Punjab Labour Appellate Tribunal, dated 14-7-1985 and 23-9-1985, respectively, holding that the appellant was not a workman, being a salesman, and dismissing his petition under section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., and the appeal arising therefrom. Leave to appeal was granted to consider, whether the appellant is covered by the ratio of the judgment of this Court in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and 6 others PLD 1977 SC 237, wherein it has been held that a salesman working in the despondent-Company, is a workman falling within the definition of section 2(xxviii) of the I.R.O.
2. The brief facts are that the appellant was employed as a salesman in the respondent-Company.
On 19-6-1982, while the appellant was carrying cash amount of Rs. 71,090 for depositing the same in a bank, he was robbed by two robbers and was deprived of the above sum. An F.I.R, was lodged on the direction of the Sales Officer of the respondent-Company. The appellant was also charge- sheeted for the negligence in performance of his duties. Enquiry was conducted by Mr. Masood Butt, Advocate, who found the appellant as guilty of the. Charge. Consequently, the appellant was dismissed from service by an order, dated 23-6- 1983.
3. Thereupon, the appellant, after serving a grievance notice under section 25-A of the I.R.O., filed a petition under the above provision, which was heard and decided by the Punjab Labour Court No.2, Lahore, by its judgment dated 14-7-19S5 in the following terms, holding that the appellant was not a workman and could not seek remedy within the framework of section 25-A of the I.R.O.:- "Considering the entire evidence on record and the law produced before me, I hold that the petitioner is not a workman and cannot seek remedy within the framework of section 25-A of the Industrial Relations Ordinance, 1969. His petition is dismissed."
Against the above judgment, the appellant filed an appeal which was dismissed by the Punjab Labour Appellate Tribunal by a judgment, dated 23-9-1985, wherein reliance was placed on the judgment of this Court in the case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees Union, Dacca and others PLD 1961 SC 403. The appellant's effort to get redress through the above writ petition also proved to be Abortive, as the same was dismissed by the learned Judges of the Division Bench on the ground that the question, whether the appellant was a workman, depended upon the appreciation of evidence led by the parties with regard to the work performed by him and that there was a concurrent finding of the Labour Court and the Labour Appellate Tribunal, which they were competent to record. After that, the appellant filed a petition for leave to appeal against the above judgments, which was granted to consider the above question.
4. We have heard the appellant in person .And Mr. Khurshid Anwar Sheikh, learned Advocate Supreme Court for the respondent. The question which requires consideration is, as to whether the ratio of the ease of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees Union, Dacca and others PLD 1961 SC 403 or the ratio of the subsequent judgment of This Court in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and 6 others (supra) is applicable to the present case.
5. Before touching upon the above question, we may refer to the definition of the "workman" and "worker" given in clause (i) of section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, and clause (xxviii) of section 2 of the I.R.O., which read as follows:- Clause (i) of section 2 of Ordinance: "(i) "workman" means any person employed in any industrial or commercial establishment to do any Skilled or unskilled, manual or clerical work for hire or reward."
Clause (xxviii) of section 2 of the I.R.O: "(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."
6. A perusal of the above quoted definition of "workman" provided for in clause (i) of section 2 of the Ordinance indicates that a person is a workman if he is employed in any industrial or commercial establishment for doing any skilled or unskilled, manual or clerical work for hire or reward. Whereas, the definition given in above clause (xxviii) of section 2 of the Industrial Relations Ordinance provides a different definition than what has been provided for in above clause (i) of section 2 of the Ordinance by providing that "worker" and "workman" means any person not falling within the definition of the employer who is employed including employment as a supervisor or as an apprentice, in an establishment or industry for hire on reward either directly or through a contractor and whether the terms of employment are express or implied. It also includes for the purpose of the Industrial Relations Ordinance in relation to an industrial dispute, 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 it excludes 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.
7. It may be pertinent at this juncture to refer subsection (1) of section 25-A of the I.R.O, and clause
(3) of the Standing Order 12, which read as follows:-- Subsection (1) of section 25-A of the I.R.O: "(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the the being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises.
Clause 131 of the Standing Order 12:
(2) 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 tp the redress of an individual grievance."
8. A plain reading of the above subsection (1) of section 25-A of the Industrial Relations Ordinance shows .That a worker or a workman, who falls within the definition given in above clause (xxviii) of section 2 of the Ordinance can invoke the above provision of the Industrial Relations in respect of any right guaranteed or secured to him by or under--
(i) any law; or
(ii) any award; or
(iii) any settlement for the the being in force.
Whereas, the above clause (3) of Standing Order 12 contemplates 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 containing the reason for the action. It further provides that 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 and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. In other words, the above clause (3) of Standing Order 12 incorporates the provisions of section 25-A of the Industrial Relations Ordinance by reference for the purpose of enabling a workman as defined in clause (i) of section 2 of the Ordinance to get redress against termination of his services or removal or retrenchment, discharge or dismissal, in violation of above clause (3) of the Standing Order 12.
9. We may observe that as pointed out hereinabove, a workman falling within the definition of "workman" and "worker" given in clause (xxviii) of section 2 of the Industrial Relations Ordinance can press into service the provisions of section 25-A for the enforcement of any right guaranteed or secured to him by any law or any award or settlement. If the right which is sought to be enforced, is guaranteed or secured by the provisions of the Industrial Relations Ordinance or by the terms of an award or settlement, it is enough that the workman comes within the ambit of the definition given in the above clause (xxviii) of section 2 of the Industrial Relations Ordinance, but in case the claim of the workman concerned is founded on a provision of any other law, in that event if such law provides definition of a "workman", he should besides being covered by thd above definition provided for in clause (xxviii) of section 2 of the Industrial Relations Ordinance should also be covered by the definition given in the relevant law. For example, if a workman seeks the enforcement of the rights guaranteed under the various provisions of the Standing Orders Ordinance, he should also fall within the definition of the "workman" given in clause (i) of section 2 of the Ordinance. However, in case of termination of employment in violation of clause (3) of Standing Order 12 as pointed but hereinabove, it is sufficient that the workman concerned falls within the definition of the "workman" given in clause (i) of section 2 of the Ordinance and he need not be covered by the definition of the "workman" and "worker" given in clause (xxviii) of section 2 of the Industrial Relations Ordinance.
10. Having dilated upon the relevant provisions of the Ordinance and the I.R.O., we may revert to the above question involved in the present case. In the instant case, as the appellant complained of the violation of Standing Orders 12 and 15, it was incumbent upon him to have shown that he falls within the ambit of the definition of "workman" given in clause (i) of section 2 of the Ordinance. The Labour Court, after referring the duties of the appellant, concluded that he was not covered by the above definition. The Labour Appellate Tribunal concurred with the above finding. The appellant h his cross-examination made the following damaging admission:- "It is correct that every salesman has a vanman. Vanman cleans the depot premises, arranges the stock in the depot. The vanman takes the tea packets and delivers to the customers. The working hours of the salesman are the same as are of the local market. It is my main duty to meet the customers and promote the sales of the products of the company. Every salesman can appoint a temporary vanman."
11. On the basis of the above admission and keeping, in view the duties of the appellant, the Labour Court and the Labour Appellate Tribunal could have recorded as a finding of fact that the appellant's duties do not predominantly involve manual or clerical work as has been held by this Court in the case of Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees'
Union, Dacca and others (supra), wherein Cornelius, CJ. Made the following weighty observation in relation to a salesman with reference to the definition of the "workman" given in clause (s) of section 2 of the Industrial Disputes Act, 1947 (XIV of 1947), which is pari materia with the definition given in above clause (i) of section 2 of the Ordinance in material respects:- "I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper-agencies of the products of the Company, are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesman is in a wholly different category from manual work or clerical work, and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of "workmen".
The other learned Judges, who recorded their separate opinions in the above-cited case, did not differ with the above proposition of law.
12. In the ing Order, reference has been made to a subsequent judgment of this Court in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and 6 others (supra), in which this Court, while construing clause (xxviii) of section 2 of the I.R.O., held that a salesman working in the respondent-Company falls within the definition of the "workman" given in the above clause. However, it was pointed out that the definition provided for in above clause (xxviii) of section 2 of the I.R.O., was more comprehensive as compared to the definition given in the Industrial Disputes Act, 1947, and the Industrial Disputes Ordinance, 1959. The relevant observations read as follows:- "The definition of the term "Workman" in the Industrial Disputes Act, 1947 as well as in the Industrial Disputes Ordinance, 1959 was substantially the same. Workman means any person employed, including an apprentice in any industry to do any skilled or unskilled manual or clerical work for hire or reward. It was on the basis of this definition that in the two reported cases discussed above it was held that a salesman was not a workman as from the nature of his duties it appeared that he was not engaged in a manual or clerical work. But this definition was not adopted in the Industrial Relations Ordinance, 1969 ...........
It is clear that in enacting section 2(xxviii) of tins Ordinance the Legislature did not adhere to the old definition of the term "worker" given in the earlier enactments and has in fact altered the entire scheme behind it. The scope of this definition is more comprehensive. It includes all persons employed in an establishment or industry, other than the employer. But it does not include any person who is employed mainly in a managerial or administrative capacity, or who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees 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 a managerial nature."
13. In the above case of 1977, since the right which was pressed into service was guaranteed or secured by the provisions of the I.R.O., it was held that respondent No.3, which was a registered trade union representing workers including salesmen and vanmen, was lawfully constituted as their collective bargaining agent, as the salesmen fell within the definition of "workmen" as given in clause (xxviii) of section 2 of the I.R.O. The question, whether the salesmen were covered by the definition of clause (i) of section 2 of the Ordinance, was not involved and, therefore, the above case has no application to the instant case. The ratio of the earlier judgment of this Court in the case of Pakistan Tobacco Company Ltd, v. Pakistan Tobacco Company Employees' Union, Dacca and others (supra) is very much applicable to the present case. The above appeal has no merits and, therefore, it is dismissed. However, there will be no order as to costs.
Nasim Has ABDUL SHAKURUL SALAM, J.--I have gone through the judgment proposed to be delivered by my learned brother Amal Mian, J. But regret that I look at the case differently. My reasons are as follows:-
1. The appellant was a salesman in the respondent Brooke Bond Company. He was carrying company money for deposit in the Bank. While on the way, he was robbed. On the instruction of the Sales Officer, F.I.R, was lodged. He was departmentally proceeded and dismissed from service. He filed an application under section 25-A of the Industrial Relations Ordinance, 1969. The Labour Court dismissed the application on the ground that he was not a workman as defined in section 2(1) of the Industrial and Commercial (Standing Orders) Ordinance, 1969. His appeal was dismissed by the Punjab Appellate Tribunal and a Constitution Petition by a learned Division Bench of the Lahore High Court. He was granted leave to appeal in view of the decision of this Court in "Brooke Bond Pakistan Limited v. Conciliator appointed by the Government of Sind and 6 others" (PLD 1977 SC 237) wherein salesmen of the respondent-Company were held to fall within the definition of workmen under section 2(xxviii) of the Industrial Relations Ordinance, 1969.
2. Appellant has reiterated his submission in person. The respondent Company is represented by a learned counsel who has relied on "Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca, etc. (PLD 1961 SC 403) to contend that salesmen of the Company are not workmen. Secondly, that a worker entitled to maintain a petition under section 25- A of the Industrial Relations Ordinance must also fall within the definition of a worker in the (Standing Orders) Ordinance. He submitted that this aspect was not considered by this Court in "Brooke Bond Pakistan Limited v. Conciliator appointed by the Government of Sind and another." (PLD 1977 SC 237), as held by Mr. ZA. Channa, Labour Appellate Tribunal, Sind in "Messrs Johnson and Johnson (Pakistan) Ltd. v. Zubair Ahmed" (1980 PLC 622). He also referred to some other decision of the Tribunals in the same strain.
3. Reliance by the learned counsel for the respondent on "Pakistan Tobacco Company Ltd. v.
Pakistan Tobacco Company Employees' Union, Dacca, etc." PLD 1961 SC 403 is no more at. At the the the decision was handed down the definition of a workman under Industrial Disputes Act was, 'Any person employed (including an apprentice) in any*Industry to do any skilled or unskilled manual or clerical work for hire or reward....". Now, the definition in clause (xxviii) of section 2 of the Industrial Relations Ordinance is "Any person not falling within the definition of employer, who is employed (including employment as a supervisor or as an apprentice) in any establishment or industry for hire or reward....But does not include--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding eight hundred rupees 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."
In other words, under the earlier definition a workman had to be employed to do any skilled or unskilled manual or clerical work. But under the later definition any person who is not an employer and is employed in any establishment or industry is a workman, except the two categories (a) and
(b) i.e. Employed in a managerial or administrative capacity and employed in a supervisory capacity drawing as wages more than the specified amount.
It is not the case of the respondent-company that the appellant falls within the two exclusory clauses. Nor is it the case of the company that the appellant does not fall within the definition of a worker as given in the Industrial Relations Ordinance. Therefore, the reliance on earlier decision "Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees Union, Dacca, etc." (PLD 1961 SC 403) holds no water. The later decision "Brooke Bond Pakistan Limited v. Conciliator appointed by die Government of Sind and 6 others" (PLD 1977 SC 237) taking note of the earlier case had pointed out the change in the law and held the salesmen of the respondent Company as workmen. This clinches the matter.
4. The second contention that since the appellant does not fall within the definition of a workman as given under the (Standing Orders) Ordinance, therefore, he cannot seek redress of his grievance under section 25-A of the Industrial Relations Ordinance, is misconceived. A person is allowed to seek redress under a given statute and the person falls within the definition of the person under the said statute. Why recourse be had to another statute to deprive him of relief? A statute which is complete is to be construed according to its own terms and not with reference to .Another statute to whittle down the beneficial provision of the former.
5. It was also argued that provisions of section 25-A of the Industrial Relations Ordinance can be invoked when a "right is guaranteed or secured to him by or under any law or any award or settlement for the the being in force.... ". The precise contention was that if the right is guaranteed or secured by an award or settlement, the section will be available but if the right is guaranteed or secured by any law, then the workman must satisfy the definition of the workman under the (Standing Orders) Ordinance. There is no justification to make a distinction between the right guaranteed or secured by an award or settlement on the one hand, and right guaranteed or secured by any law. In the former case, benefit of invocation of section 25 of Industrial Relations Ordinance, is allowed, but contended that it is not available in the later case. This is on history. It may also be noticed that the Industrial Relations Ordinance is of subsequent date i.e. 1969 and the (Standing Orders) Ordinance, is of 1968. The statute later in date prevails it is also to be kept in view that there is no good reason to interpret the word "worker" or "workman" defined in the different statutes so as to bring differentiation or conflict in the meaning of the same word. The basic principle of interpretation of statutes is to harmonize the different provisions, rather than to interpret in a manner that what is given by one statute is taken away by another statute.
6. The first Court denied the relief to* the appellant on the ground that the appellant was "not a workman and cannot seek remedy within the framework of section 25-A of the Industrial Relations Ordinance, 1969", as he did not fall within the definition of a worker under the (Standing Orders)
Ordinance, 1968. The definition of a workman under the latter statute is as follows: "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.
Designation of a person is immaterial. It is the job which he performs. No doubt in the earlier case Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees Union, Dacca, etc. PLD 1961 SC 403 it was observed by the learned . Chief Justice, A.R. Cornelius, as follows: 1 consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company are not assimilable either-to the group of workers whose manual labour contributes to that product or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesmen is in a wholly different category from manual work or clerical work, and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of "workmen".
It may be particularly noticed that the observation was based on the finding of the Tribunal which was not challenged that the salesmen were not workmen within the meaning of the Industrial disputes Act, nor the point was raised nor pressed before the Court. Mr. Justice Hamoodur Rehman had observed that "As to whether a person does or does not fall within this category is necessarily a question of fact to be determined upon the evidence in each case. In the present case the Tribunal has upon an elaborate ad detailed examination of the evidence come to the conclusion that the salesmen in the employ of the appellant do neither manual nor clerical work, skilled or unskilled, in the sense of the above definition. It is not for this Court to go behind this finding of fact, which appears to be supported by sufficient evidence on the record as to the nature of the work of these salesmen. This conclusion is furthermore neither perverse nor arbitrary and cannot, therefore, be disturbed by this Court". When the dispute between the respondent Company and its employees, salesmen arose more than a decade later and the matter was referred to the Arbitrator, the latter found the salesmen of the respondent-Company as workers within the definition of section 2(xxviii) of the Industrial Relations Ordinance, 1969. This finding was upheld by this Court in "Brooke Bond Pakistan Limited v. Conciliator appointed by die Government of Sind and 6 others" (PLD 1977 SC 237). When the salesmen of the respondent- Company have been held to be workers under the definition of section 2(xxviii) of Industrial Relations Ordinance, 1969 by the Arbitrator as well as by this Court, there does not appear to be any good reason to hold that the appellant who is also a salesman of the company is not a workman. Reliance on the earlier decision "Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca, etc. (PLD 1961 SC 403) is not relevant as the salesmen of one company may be found to be not workmen whereas the salesmen of another company may be so found. In the earlier case the salesmen of the Pakistan Tobacco Company were found not to be workmen. But that does not mean that the salesmen of the respondent-Company are also not workmen, especially when the salesmen of the respondent-Company were found to be workers -and the finding was upheld by this Court in the subsequent case of "Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sind and six others" (PLD 1977 SC 237). It will be extremely incongruous that the salesmen of this company were found to be workers and the efforts of the respondent-Company failed to get them declared as non-worker, but 14 years later when the appellant salesman of the company sought relief he was denied the same on the ground, that he was not a workman. The fact that the appellant in reply to a question stated that "it is correct that every salesman has a vanman. Vanman cleans the depot premises, arranges the stock in the depot. The vanman takes the tea packets and delivers to the customers. The working hours of the salesman are the same as are of the local market. It is my main duty to meet the customers and promote the sales of the products of the company. Every salesman can appoint a temporary vanman", is to be seen in the context that the appellant a layman was answering questions from an experienced lawyer with reference to the observations made in an earlier case. The answer has to be seen in the totality of his statement and deposition of the company's own representative. Further, in view of the fact that the salesmen of the respondent-Company were previously given relief on the ground that they were workers and the decision was upheld on the appeal of the respondent-Company by this Court, it was not open to the latter to raise the same question. Nor could the appellant be refused relief on the contention earlier raised and rejected.
7. The definition of workman given in the (Standing Orders) Ordinance is any "person employed in any industry or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". It need not be construed narrowly so as to destroy the purpose of the beneficial legislation. The definition appears to exclude those who do intellectual or managerial work and not other employees. Harmonizing construction is one of the basic rules of interpretation, I am of the view that in accordance with the finding of the Arbitrator that the salesmen of the respondent- Company are workers, which was upheld by this Court in the latest decision, the appellant is entitled to get relief. The appellant was dismissed for negligence and carelessness in the handling the Company money. His defence was that he was robbed. It was not refuted nor any finding given on the point. The first Court upheld the contention of the appellant that it is habitual negligence which entails punishment under the Standing Order 15, but non-suited the appellant on the ground that he was not a workman. Having seen above that the appellant was a workman, I am of the view that the appeal deserves acceptance and it is so ordered. However, as the case involved construction of two statutes the parties are left to bear their own costs.