JUDGMENT Z. A. Channa, J.--This Constitutional petition by the Sind Road Transport Corporation, hereinafter referred to as the Corporation, and its District Managers at Malir and Korangi, calls in question the decision of the Sind Labour Appellate Tribunal, hereinafter referred to as Tribunal, delivered on 21-7-1973, whereby it reversed on appeal the "award" dated 30-3-1973, of the Sind Labour Court No. IV, Karachi, declining to entertain two applications made by respondent No. 1 on the ground that the Court had no jurisdiction to determine industrial disputes in respect of persons employed in the field of transport. The Tribunal held that the Labour Court did have jurisdiction in the matter and directed it to dispose of the two applications filed by respondent No. 1 according to law.
2. The facts which form the background of this petition may be briefly stated as follows:-- The Corporation is a statutory corporate body which has been set up by the Provincial Government pursuant to the provisions of section 70 of the West Pakistan Motor Vehicles Ordinance, 1965, for the purposes of operating road transport services in the Province. Respondent No. 1, hereinafter referred to as the Union, is the Trade Union of the workers of the Corporation. The Union submitted two applications to the Labour Court, Karachi. The first application was under section 34 of the Industrial Relations Ordinance, 1969, hereinafter referied to as the Ordinance, and contained the allegation that the Corporation, in violation of the provisions of section 23 of the Ordinance, had failed to deduct the monthly subscriptions payable to the Union from the wages of the workmen of the Corporation. The second application was under section 32 of the Ordinance and related to a charter of demands submitted by the Union to the Corporation. It was alleged that as the Corporation did not accede to the said charter of demands, the Union after serving a strike notice on the Corporation, initiated conciliation proceedings under section 29 of the Ordinance, but these proceedings failed.
3. Before the learned Labour Court, the Corporation took the plea that the said Court had no jurisdiction to entertain and hear the applications of the Union as the West Pakistan, Essential Services (Maintenance) Act, 1958, was applicable to all transport workers and the said Act ousts the jurisdiction of the Labour Courts to determine industrial disputes in respect of the persons to whom it is applicable. This objection found favour with the Labour Court which took the view that not only the provisions of the said Act are applicable to the workmen of the Corporation, but that further rules had been framed regarding the conditions of service of road transport workmen which should be deemed to have been framed under the Act, and as the mode and method provided under the Act and the said rules was materially different from those provided under the Ordinance, the provisions of the Ordinance could not be at the same time extended to road transport workmen.
4. The Union preferred two appeals against the above order of the Labour Court which were heard together and disposed of by the Tribunal by the impugned order. The learned Tribunal repelled the contention that any rules relating to the terms and conditions of service of road transport workers had been framed under the aforesaid Act and correctly pointed out that the West Pakistan Road Transport Workers Rules, 1962, on which reliance had been placed by the learned counsel for the Corporation, had been framed under the Road Transport Workers Ordinance, 1961, and could not be deemed to have been framed under the aforesaid Act, and that further no authority had been empowered under the Act to regulate the wages and other conditions of services of the workmen of the Corporation. On this view of the matter, the learned Tribunal held that the Labour Court had jurisdiction to decide the two applications filed by the Union and directed it to do so.
5. Mr. A. K. Brohi, the learned counsel for the petitioners while very fairly stating that he was not challenging the impugned order on the basis of the West Pakistan, Essental Services (Maintenance) Act, 1958, has impugned it on two grounds, firstly, that the employees of the Corporation are employed in the "administration of the State" and hence are outside *he purview of the Ordinance by reason of the exception provided in section 1 (3) thereof, and secondly, that the ord'T of the Labour Court which was reversed by the Tribunal, though it is headed as ''AWARD", is in fact not an award but a decision and hence the same was not appealable.
6. Subsection (3) of section 1 of the Ordinance, on which the first contention of Mr. Brohi is based, is to the following effect:-- "(3) It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance factory maintained by the Central Government or to any person employed in the administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Departments."
7. The argument of Mr. Brohi, if we have understood him correctly, is that as the Corporation is not only wholly owned and controlled by the Provincial Government and its Chairman and Directors are the creatures of the Provincial Government, but further as the Government alone is empowered under section 70 (v) of the West Pakistan Motor Vehicles Ordinance, 1965, to frame rules prescribing the powers and functions of the Corporation, the Corporation is deemed to be performing its statutory function of operating Road Transport Services in the Province for and on behalf of the Provincial Government and hence it should be considered to be a limb or at lea't agent of the Government and all its employees should be considered as "employed in the administration of the State". Mr. Brohi also referred us to the West Pakistan Road Transport Corporation (Removal of Undesirable Employees) Ordinance, 1965, under which Govemment has almost unfettered powers to remove any employee of the Corporation, as further evidence of the extent of the control and power of the Provincial Government over.the Corporation. The argument of Mr. Brohi further proceeded that his contention that the employees of the Corporation were outside the pale of the Ordinance should not be construed as suggesting that these employees were helpless or without any protection or that as respects workers in other spheres they were at a great disadvantage or that perhaps there was perhaps a void in the law so far as the employees of the Corporation are concerned, for there are separate laws regulating their terms and conditions of service and providing them with adequate protection. Mr. Brohi specifically invited our attention to the Road Transport Workers Ordinance, 1961, and the West Pakistan Road Transport Workers Rules, 1962, framed under the said Ordinance. This Ordinance, which is applicable to all Road Transport workers engaged on mobile duty, including drivers, cleaners, conductors and checkers employed by or in the Road Transport Services, fixes the minimum age limits of such workers, their hours of work and rest periods and the amount of leave admissible to them and lays down the acts and omissions for which and the procedure to be adopted for the termination of their services. The West Pakistan Road Transport Workers Rules, 1962, which have been framed under section 10 of the aforesaid Ordinance, inter alia provide for the maintenance by employers of Road Transport Workers of prescribed registers and records and lay down further conditions for terminating the services of such workers. These Rules specifically provide that any such worker is not to be dismissed for misconduct unless he is informed of the alleged misconduct and is given an opportunity to explain the same and that further termination of service can only be made by or with approval of the employer. It may not be out of place here to mention that the provisions in the aforesaid Ordinance and Rules in respect of termination of services of Road Transport workers correspond to Standing Orders Nos. l2 and 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968, the provisions of which Ordinance have been specifically made inapplicable, vide the proviso to section 1(2) thereof, to industrial and commercial establishments carried on by or under the authority of the Central or a Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. However, neither the Road Transport Workers Ordinance, 1961, nor the West Pakistan Transport Workers Rules, 1962 provide for the formation of associations or Unions of workers, or the raising of industrial disputes or their determination and adjudication by a Labour Court or other independent Tribunal, which are essential features and valuable rights of workers under the Ordinance. Certain of the provisions of the 1961 Ordinance and the 1 ^62 Rules appear to be on the lines of the recommendations of the I. L C. covering maintenance of individual control books and registers in Road Transport, the method of regulating hours of work therein and the rest periods of Road Transport drivers.
8. Mr. Malik Muhammad Saeed, the learned counsel for the respondents, on the other hand submitted that the expression "persons employed in the administration of the State" in section 1 (3) of the Ordinance is to be narrowly construed, is of limited import and is restricted in its application to only such persons as are employed in the administrative and sovereign functions of the State and cannot, on a proper and reasonable construction, be extended to persons employed in any commercial enterprises that Government may choose to indulge in, much less to employees of statutory corporations engaged in commercial or industrial pursuits and enterprises. In support of his contention, the leamed Advocate relied upon two decisions of the Lahore High Court reported as Management of Municipal Committee, Mianwali v. General Secretary, Union (1) and Gulzar Ahmed v. Chairman, Road Transport Corporation (2). He also referred us to the decision of the Tribunal in Employees* Union v. Executive Engineer (3) and of theLabour Court, East Pakistan in Stramic Union v. Registrar of Trade Unions (4). In the case of the Municipal Committee, Mianwali, a Division Bench of the Lahore High Court, while considering the import and connotation of the word "industry" as used in the Industrial Disputes Ordinance, 1^59, made a distinction, relying on the judgment of Issacs, J., in the Federal State School Teachers* Association of Australia v. The State of Victoria (5) and the decision of the U. S. A. Supreme Court in Versimo Vasquez Vifas v. City of Manila (6) between the regal or sovereign functions of the Government and its non-regal functions and took the view that the levying and collection of taxes by a Municipality appertain to the sovereign or regal functions of the State whereas "other activities of a municipality such as making and preparing roads, sanitation and conservancy, running the hospitals and the schools do not exclusively pertain to the regal or .sovereign functions efthe State and the persons employed in the latter class of activities will be workmen for the purpose of the Industrial Disputes Ordinance, 1959.
In Gulzar Ahmed's caset a learned Single Judge of the Lahore High Court held that the Road Transport Corporation is not a Government Department and constitutional safeguards of service are not available to employees of the said Corporation. In the Sind case of the Employees* Union, the Tribunal, relying on the judgment of Issacs, J. in the Australian case and of the Lahore High Court in the case of the Municipal Committee, Mianwali, held that the employees of the Building Department of Government, consisting of operators, drivers, etc., were not excluded from the purview of the Ordinance, and the Tribunal repelled the contention that such employees were employed in the "administration of the State". In the East Pakistan case of Stramic Union, the East Pakistan Labour Court took the view that the workers of the Roads and Highways Directorate of East Pakistan engaged in field services were not associated with the administration of the State and were thus workmen for the purposes of the Ordinance and for forming Trade Unions.
9. Mr. Brohi, in reply, contended that section 1 (3) of the Ordinance did not make or envisage any distinction between the sovereign or regal functions and commercial activities of the Government and in support of his argument pointed out that though Railways, Posts, Telegraph & Telephone Organizations of the Government were clearly commercial departments and were run substantially in the manner of commercial organizations and enterprises, the workmen employed therein are, on the language employed in the said section, included in the category of persons "employed in the administration of the State" and would have been excluded from the application of the Ordinance but for the fact that the provisions of the Ordinance have been specifically made applicable to them. According to him this specific application of the Ordinance to such employees would have been unnecessary and superfluous if they were not deemed to be "employed in the administration of the State". Mr. Brohi also referred us to the preamble and certain (1) (2) 1972 PLC 614 (4) 1971 PLC 163 (6) 220 U S 3451968 PLC 270 (3) 1972 PLC 285 (5) (1928-29) 41 C L R 569 provisions of the Constitution, specially Articles 2, 3, 5,7 and 18 and item 3 of Part II of the Federal Legislative List, in support of his contention that the functions of the State also extend to commercial activities. Mr. Brohi also relied upon the judgment of a Division Bench of the Lahore High Court in the case of West Pakistan Road Transport Board v. Commissioner of Income-tax, substance of which judgment has been reported inPLD 1974 Note 64 at p. 103, wherein it was held that the West Pakistan Road Transport Board created under section 43-A of the Motor Vehicles Act, 1939, functions as a Government Department or Agency and is, therefore, not a taxable entity or liable to income-tax. Finally, Mr. Brohi contended that as the expression "administration of the State" had not been defined in the Ordinance, it is to be understood and construed in the Ordinary dictionary sense, and the dictionary, according to him, supported his contention.
10. In order to appreciate the respective contentions of the learned counsel, it would appear to be appropriate to briefly refer to the history of of Legislation in Pakistan on the subject of Trade Unions and the determina-pt tion of industrial and labour disputes. The earliest enactment on these subjects, which was in force at the time of the establishment of Pakistan was the Trade Unions Act, 1926, which provided for the registration, and later of recognition, of Trade Unions and their rights, functions and liabilites. In the said Act, "workmen" were defined to mean "all persons employed in trade or industry whether or not in the employment of employer with whom the industrial disputes arise." The subject of industrial disputes and their determination was covered, at the time of the establishment of Pakistan, by the Industrial Disputes Act, 1947. In the said Act, the words industry and workmen were respectively defined as follows:-- "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, e mployment, handicraft or industrial occupation or avocation of workmen." " Workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerial work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the Naval, Military or Air Service of the Crown." The Industrial Disputes Act, 1947, was repealed and replaced by the Industrial Disputes Ordinance, 1959. Section 2 (n) of this Ordinance defined workman as follows : \ri) 'workman' means any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the Police or Armed Forces of Pakistan." The definition of "workman" in the above enactment clearly included workman of all types, engaged in industry and trade, irrespective of the fact whether they were working for Government, a statutory body or a private company. The trade Unions Act, 1926, was repealed, in West Pakistan, by the West Pakistan Trade Unions Ordinance, 1968, and the Industrial Disputes Ordinance, 1959, by the West Pakistan Industrial Disputes Ordinance, 1968.
Clause (u) of section 2 of the latter Ordinance defined "workman" as follows:-- () 'workman* means any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical or clerical work, for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or in consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -- (/) who is employed in the Police or the Armed Forces of Pakistan ; (ft) who is employed in the service of a prison, or of a hospital for the treatement by Government of human patients; (ift) who is a Choukidar (guardsman) or is employed in a service declared by Government to be watch and ward or security service ; (/v) who is employed in managerial or administrative capacity ; or (v) who is a public servant engaged in the administration of State, not being employed in a factory or in the Railways, or in any other establishment, undertaking, department, profession or service declared by Government to be an industrial establishment or service for the purposes of this Ordinance. It was in this statute that for the first time the expression "administration of the State" was used in any law in this country. The definition of workman in the West Pakistan Industrial Disputes Ordinance, 1968, though somewhat similar, did not include the expression "administration of the State", but specifically included railway employees. The West Pakistan Industrial Disputes Ordinance, and the West Pakistan Trade Unions Ordinance, 1968, were both repealed and replaced by the Ordinance, which covered the fields of Trade Unions as well as industrial disputes and their determination. It may be mentioned here that the expression "administration of the State'* has been used in I. L. O. Convention No. 98, which concerns the application of the principle of the right to organise and to bargain collectively and which came into force on 18th July 1951, and to which Convention Pakistan is a signatory. Article 1 of this convention provides that "workers shall enjoy edequate protection against act of anti- Unton discrimination in respect of their employment".
Article 2 recites that 'worket's and "employers" organizations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration " Ariicle 3 requires that machinery appropriate to national conditions shall be established, for the purpose of ensuring respect for the right to organise. Article 5 provides that the extent to which the guarantees provided for in the .-aid convention are to apply to the armed forces and the police is to be determined by national laws and regulations. Article 6 excludes the application of the Convention to public servants" engaged in the administration of the State", but at the same time it provides that this is not to be construed as prejudicing their rights and status in any way. The convention also requires declartions to be made to the Director-General of I. L.O. Office by the countries ratifying the convention regarding the enforcement of the said Convention. We may also refer to the I. L. O. Convention No. 87 which was ratified by Pakistan on 14-2-1951. This convention is in respect of the freedom of association and protection of the right to organise. Article 2 of the said convention priovides that workers and employers, without distinction whatsoever, shall have the right to establish organisations of their own choosing without previous authorisation. Article 8 of this convention enjoins that the law of the land shall not be such as to impair the guarantees provided for in this convention. Article 9 lays down that the extent to which the guarantees provided in this convention shall apply to the armed forces and to the police is to be determined by national laws or regulations. Under Article 11, an undertaking was given by each member of the I. L. O. for which this convention is inforce to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise. We would perhaps not be wrong in presuming that the West Pakistan Trade Unions Ordinance, 1968, and the Ordinance have been framed keeping in view the provisions of the above two conventions and specially the undertaking given under Article 11 of Convention No. 87.
This inference against further support from the fact that section 1 (3) of the Ordinance makes special mention of the police and the defence services and makes the provisions of the Ordinance inapplicable to them. As in neither of these conventions, the expression "administration of the State" is either defined or its scope elucidated, it still falls to be considered what the true import of this expression is. The Oxford English Dictionary, 1961 Reprint, defines the word "administraten" as the action of administering or serving in any office service, ministry, attendance, performance of duty; the Management of public affairs; the conducting or carrying on of the details of Government; hence, sometimes, used for Government; the executive part of the Legislature; the ministry; now often loosely called the Government; the Management (of any business)". In the Chamber's Twentieth Century Dictionary, this word has been defined as : "the act of administering ; Management; dispensation of sacraments; the Govemment." Black's Law Dictionary (Fourth Edition) defines the word "administration" as follows:-- "Managing or conduct of an office or employment ; the performance of the executive duties of an institution, business, or the like. In public law, the administration of Government means the practical Management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign; direction or oversight of any office, service, or employment. The term "administration" is also conventional applied to the whole class of public functionaries, or those in charge of the Management of the executive Department."
11. The various definitions of "administration" referred to above, coupled with the fact that the administration which we are required to consider is of the State, inclines us to the view that the expression "administration of the State" is to be interpreted in the limited and narrow sense of the practical Management and direction of the executive machinery or of the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government. If the Legislature had intended by this expression to include not only every Government servant, but also every employee of a statutory body performing functions on behalf of or as an agent of the Government, as contended by Mr. Brohi, there was no reason to specifically exclude from the purview of the Ordinance, as has been done, persons employed in the police, the defence services and services or the installations connected with the armed forces, including Ordnance factories maintained by the Central Government. These persons would obviously, on the interpretation which Mr. Brohi invited us to give to the above expression, be included within that expression. The fact that a special exception has been made in respect of the above classes of persons would seem to suggest, firstly, that the Legislature was apparently of the view or at least thought that a possible view could be taken that calsses of persons may not be included in the expression "persons employed in the administration of the State", and secondly, so that the law may be in consonance with the two I. L. O. Conventions referred to above, which specifically exclude from their purview the Police and the Armed Forces.
The reason for specifically excluding workmen in Railways, Posts, Telegraph & Telephone Departments, as we have been able to understand section 1 (3) of the Ordinance, apparently was not so much the fact that they are included or deemed to be included in the expression "persons employed in the administration of the State" as the historical fact that Unions in these Departments had been in existence since a very long time and the Legislature wanted to make it clear that workmen in these Departments were not to be excluded from the application or denied the benefits of the Ordinance. The definition of workman in the West Pakistan Trade Unions Ordinance, 1968, while excluding Government servants specifically includes railway employees. A reference to the West Pakistan Industrial Disputes Ordinance, 1968, shows that Railways service and employment in the Postal, Telegraph and Telephones services have been included in the Industrial Disputes Ordinance, 1959, the definition of "public utility service" included Railways service as well as the Postal, Telegraph and Telephones services. We take the view that as the earlier labour laws were specifically made applicable to the workmen in the Railways, Posts, Telegraph and Telephones Departments, the Legislature was anxious to avoid the possibility of a misunderstanding that such workmen had been excluded from the application of the Ordinance and hence, as in the case of employees in the Police Department and the Defence Services, out of abundant caution, specific mention was made of them, including the former classes of workmen within the application and excluding the latter classes of employees from the purview of the Ordinance. l2. We do not consider it necessary to consider the scope or connotation of the expression "administration of the State" with reference to the provisions of the 1972 Constitution, firstly, because the Constitution is prospective in effect and came into force much before the Ordinance was enacted, and secondly because the said expression has not been defined in the Constitution. 14.
13. The conclusion thus, which we have reached, is that the employees of the corporation, though the corporation may be performing functions as an agent of or on behalf of the Provincial Government and its employees are public servants, are not persons "Employed in the administration of the D State" and hence are not excluded from the application of or the benefits provided under the Ordinance. There remains for consideration the second objection of Mr. Brohi, namely, that the Tribunal acted without jurisdiction in entertaining the appeals against the orders of the Labour Court. As already indicated, there were two applications by the Union to the Labour Court, one under section 34 of the Ordinance and the other under section 32 of the Ordinance relating to its charter of demands. So far as the application under section 34 is concerned, since it sought only the enforcement of a right conferred upon the Union by the Ordinance and not the determination of any industrial dispute, the order of the Labour Court was clearly a decision and not an award and hence under section 37 (4) of the Ordinance, the decision was final and not appealable to the Tribunal. We are fortified in this view by a decision of a Division Bench of this Court in the case of Muhammad Aqil v. Sind Labour Appellate Tribunal (1) where it has been held that the decision of a Labour Court on an application under section 34 cannot be described as an "Award". The Labour Court, however, had not only decided the application of the Union under section 34, but also its application made under section 32 of the Ordinance in respect of its charter of demands. This second application thus related to an industrial dispute and the order of the Labour Court that it had no jurisdiction to entertain such an application, was in our opinion, the determination of a matter relating to an industrial dispute. In the case of Municipal Committee, Mianwali it was held by a Division Bench of the Lahore High Court that the decision of the Industrial Court on the question of jurisdiction is an award and an appeal against the same is competent.
Though this decision is in respect of the provisions of the Industrial Disputes Ordinance, 1959, it will also be applicable to similar cases under the Ordinance, for the definition of "award" unuer the Industrial Disputes Ordinance, 1959 is practically identical with the definition of this term as contained in the Ordinance. An appeal to the Tribunal thus, in our opinion, was competent in respect of the application of the Union relating to its charter of demands.
15. On the view that we have taken of the matter, we are of the opinion that the petition has no merits. We accordingly dismiss the same with costs. K. b. A.. Petition dismissed. (1) PLJ 1974 Kar. 252