' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 8-3- 1992 passed by a learned Single Judge of the High Court of Sindh in Miscellaneous Appeal No, 38 of 1990, filed by the appellant under section 64 of the Employees' Social Security Ordinance, 1965, hereinafter referred to as the Ordinance, against the judgment dated 12-11-1990 of the 1st Sindh Labour Court, Karachi, dismissing the appellant's appeal and upholding the order of the Commissioner, Sindh Employees' Social Security Institutions, Karachi, holding that the appellant was liable to make contribution under section 20 of the Ordinance, dismissing the above appeal by maintaining the above judgments/ordeRs, Leave to appeal was granted to consider the following two questions:-- "(1) Whether the relationship between the appellant and porters working at the airport is that of employer and employee?
(2) Whether the amount of Rs,2 received by porter, per trip, out of the A total amount of Rs,10 paid by every passenger at the airport falls within the definition of 'WAGES' ?"
2. The brief facts are that the appellant is a subsidiary of Shaheen Foundation which was registered as a trust to cater to the serving as well as the retired personnel of the Pakistan Air Force. The appellant renders various services at the airport including providing porter services to the passengers at the Karachi Airport at the request of the Civil Aviation Authority, which has been entrusted with the management and control of the various civil airports in Pakistan. It appears that in the year 1988 upon checking the record of the appellant, the respondent raised a demand of Rs,2,20,300.15 against the appellant through letter dated 18-9-1988 being the amount of contribution under section 20 of the Ordinance for the period from January, 1987, to December, 1987. In response to the above demand, the appellant admitted its liability to the extent of Rs,730.14 but filed objections in respect of the rest of the demand. It seems that subsequently the appellant's Assistant Manager (Accounts) appeared before the Director of the respondent and admitted the appellant's liability to the extent of Rs,14,884.15, but the Director reiterated the above demand and called upon the appellant to pay an amount of Rs,2,13,199.01, which was followed by a formal notice of demand dated 20-10-1988. Thereupon, the appellant raised a dispute under section 57 of the Ordinance before the Commissioner, Sindh Employees' Social Security Institutions, Karachi. It appears that the Commissioner, after hearing the parties by his decision dated 19-12-1989, held that the appellant was liable for the payment of contribution amounting to Rs,2,13,199.01. The appellant, being aggrieved by the above decision, filed appeal under section 59 of the Ordinance, which was heard and dismissed by the learned 1st Sindh Labour Court, Karachi by its aforesaid judgment dated 12-11-1990. After that, the appellant filed the above Miscellaneous Appeal under section 64 of the Ordinance, which was dismissed by the judgment under appeal. Against the above judgment, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
3. In support of the above appeal, Mr. Shahenshah Hussain, learned Advocate Supreme Court appearing for the appellant, has urged as follows:-
(i) Though the Ordinance is a beneficial statute and is to be construed liberally, but the Court cannot construe the same in a manner which may violate the provisions of the same;
(ii) that the porters employed at the airport are engaged in contract for service and not contract of service as neither the appellant nor the porters are covered by the definitions of the words "employer" and "employee" given in clauses (9) and (8) respectively of section 2 of the Ordinance, nor remuneration received by the porters can be treated as "wages" in terms of clause (30) of section 2 of the Ordinance.
(iii) That there was no express or implied agreement between the appellant and the porters in order to bring about the relationship of employer and employee. On the other hand, Mr. Sheikh Abdul Sarwana, learned Advocate Supreme Court appearing for the respondent, has submitted as under:--
(I) That the Ordinance is a specie of statutes which have been enacted in terms of clause (c) of Article 38 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as to Constitution, which enjoins that the State shall provide for all persons employed in the Service of Pakistan or otherwise, social security by compulsory social insurance or other means and, therefore, the provisions thereof are to be construed liberally with the object to extend the benefits of the same to the maximum people.
(ii) That the relationship between the appellant and the porters in terms of above clauses (9) and
(8) of section 2 of the Ordinance respectively is that of employer and employee and that what a porter receives as remuneration for the services, is covered by the term "wages" as defined in clause (30) of section 2 of the Ordinance.
(iii) That there is no legal requirement that in order to make the appellant liable for contribution under the Ordinance, there should be an express or implied agreement between the appellant and the porteRs, What is required is that the services should be rendered pursuant to an agreement which, in the present case, was admittedly between the appellant and the Civil Aviation Authority.
4. Before dealing with the contentions which touch upon the merits of the case, it may be pertinent to dilate upon the above first contention of the learned counsel for the parties i,e. As to the rule of interpretation. Mr. Shahenshah Hussain, in support of his above first contention, has referred to the case of the Workmen of M/s. Firestone Tyre and Rubber Co. Of India (Pvt.) Ltd. v. The Management and others (1973) 1 Supreme Court Cases 813) and the case of Lalappa Lingappa and others v.
Laxmi Vishnu Textile Mills Ltd. (1981) 2 Supreme Court Cases 238).
' In the first case, the Indian Supreme Court, while construing the provisions of section 11-A of the Industrial Disputes Act, 1947, inter alia, held that in construing the provisions of a welfare legislation, Courts should adopt beneficial rule of construction i,e. If two constructions are reasonably possible then the construction which furthers the policy and the object of the Act and is more beneficial to the employees, is to be preferred to achieve the legislative purpose provided it is possible to do so without doing violence to the language used by the Legislature and keeping in view as to what was the previous position of law and to what extent the section exhibits intention to change the same.
' Whereas in the second case, the Indian Supreme Court, while interpreting the provisions of Payment of Gratuity Act, 1972, in context with the Badli employees, has held that if language is clear and explicit, plain meaning must be followed even in a social welfare legislation and inconvenience and hardship are not good grounds for deviating from the above rule. It was also held that beneficial construction to such legislation was permissible only where the provision was capable of two constructions.
5. On the other hand, Mr. Sheikh Abdul Sarwana, learned counsel for the respondent, has referred to clause (c) of Article 38 of the Constitution, Preamble to the Ordinance, the case of Kohinoor Chemical Co. Ltd. And another v. Sindh Employees' Social Security Institution and another (PLD 1977 SC 197) and the case of Messrs Macdonald Layton Constain Limited, West Wharf; Karachi v. Punjab Employees' Social Security Institution, Lahore and 2 others (PLD 1991 SC 1055).
' It may be observed that above Article 38 of the Constitution is a part of Chapter II of the Constitution, which contains Principles of Policy. It envisages promotion of social and economic well-being of the people in terms of its clauses (a) to (f). Whereas clause (c) of it enjoins that the State shall provide for all citizens employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means.
' It may further be observed that Preamble to the Ordinance envisages introduction of a scheme of social security for providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death, and for matters ancillary thereto.
' Whereas in the above first case this Court, while construing the provisions of section 2(8) and (11) of the Ordinance, held that the Ordinance is a beneficial or remedial legislation conceived as a means of ameliorating the law of working class and as such it would be in keeping with the accepted principles of interpretation that it should be so construed as to advance the remedy and suppress, the mischief, or else it would frustrate the legislative intent.
' In the above second case this Court again, while construing sections 2(11) and 20 of the Ordinance, observed that the petitioner (who was the employer in the. Above case and which had filed a petition for leave to appeal against the judgment of the Lahore High Court) in order to deprive a section of labour class employed by them of due benefits under the Ordinance, . Took up untenable pleas and adopted such positions which it was difficult to establish. It was further observed that "In such a situation under the Islamic dispensation, even if the case for both the sides had been equally balanced, in order to advance the command regarding social justice, as contained in the Objectives Resolution, the decision to be rendered by this Court would have gone in favour of upholding the workers' right to the Social Security Cover".
6. There cannot be any cavil with the proposition that the Court cannot construe even a beneficial statute in such a way that it may violate its provisions nor the Court can place a beneficial interpretation on a provision contrary to its language merely on the ground that its literal construction will cause hardship or would not be beneficial to the class for whose benefit the statute in question was enacted. However, at the same time, the Court, while construing a beneficial enactment, can take into consideration the object for which it was enacted and the mischief which it intended to suppress, and if two possible constructions of a provision of such a statute are possible, one which favours the class of persons for whose benefit the statute has been enacted, would be C preferred. In the case in hand, the Ordinance is a specie of a statute which was to be enacted by the State with the object of promoting social and economic well-being of the people and, therefore, it is a beneficial enactment intended to provide social security to the workmen covered by the provisions of the same and, hence, it is to be construed liberally and if two constructions are possible, one which extends the benefit of the Ordinance to more workmen and the other which limits such benefit, the former is to be preferred.
7. Adverting to the above second contention of Mr. Shahenshah Hussain, it may be observed that in order to understand the above contention in its right perspective, it may be appropriate to reproduce paras. 2 and 3 of the memo. Of petition of the above appeal, wherein the appellant itself has described the arrangement for porter services as follows:-- "2. That Civil Aviation Authority which was constituted under Civil Aviation Authority Ordinance, 1982 is responsible for providing operational facilities to the airlines in the country. This authority, therefore, initiated a porter service scheme for engaging porters for carrying the luggage of the passengers from curbsides to check-in counters on departure and from arrival halls to curbsides on arrival. This facility is akin to the railway coolies stationed at the various railway stations throughout the country. The petitioner was subsequently requested by the authority to undertake this venture of providing porter services to the passengeRs,
3. That the petitioner, therefore, made arrangements for porter services at Karachi Airport. These porters work on individual basis and are available for carrying the luggage of the passengeRs, They charge Rs,10 per trip as fixed by the Civil Aviation Authority and out of this amount, they pay Rs,8 to the petitioner and retain Rs,2 for themselves. The petitioner takes Rs,8 for the reason that it provides counters, furnitures and other miscellaneous items to the porters and also get them security passes from the relevant authority."
' From the above-quoted paras. Of the memo of petition, it is evident that the appellant at the request of the Civil Aviation Authority has taken upon itself to provide porter services for carrying the luggage of the passenger from curbsides to check-in counters on departure and from arrival halls to curbsides on arrival. It is also evident that for the above service, for one trip Rs,10 are charged, which amount is shared between the appellant and the porters at the ratio of Rs,8 and Rs,2 respectively.
8. Mr. Shahenshah Hussain has referred to the case of Abdur Razzaq Malik v. The Water and Power Development Authority through its Chairman and 3 others (PLD 1973 Lahore 188), the case of Taj Din and 44 others v. Punjab Laboure Court No, 3, Lyallpur and another (PLD 1976 Lahore 1169), the case of Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad through the Commissioner, Excess Profits Tax (AIR 1954 SC 364), the case of V.P. Gopala Rao v. Public Prosecutor, Andhra Pradesh (1969) Supreme Court Cases 704), para. 872 from Halsbury's Laws of England, Fourth Edition, Vol. 25, and the definition of the term "contract of service" given in Stroud's Judicial Dictionary, Fourth Edition, page 587.
' In the above first case, a learned Single Judge of the Lahore High Court quoted para. 872 from the Halsbury's Law of England, Vol. 25, page 448 in order to determine, what is the law of master and servant and to what extent the petitioner which an employee of WAPDA, is governed by it and concluded that, firstly, the relationship is to be the result of the contract, secondly, the mere fact that it is the result of the contract would not necessarily mean that the relationship of master and servant exists between the employer and the employee.
' In the above second case, another learned Single Judge of the Lahore High Court, while construing the provisions of clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969 (which defines "employer") after referring the case-law, held that a concept of employment involved three ingredients:
(i) employer;
(ii) employee; and
(iii) the contract of employment.
' Then he went on describing each of the above ingredients and observed that "prima fade test for the determination of the relationship between the employer and the employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work".
' In the above third case, the Indian Supreme Court highlighted the difference between relationship of master and servant and of principal and agent by observing that principal has the right to direct what work the agent has to do but the master has the further right to direct how the work is to be done.
' In the above fourth case, the Indian Supreme Court, while construing provisions of section 2(k) of the Factories Act, 1948, held that there are four indicia of contract of service, namely:
(i) The master's power of selection of his servant;
(ii) the payment of wages or other remuneration;
(iii) the master's right of suspension or dismissal;
(iv) the master's right to control the method of doing the work.
' It also observed that the critical test of relationship of master and servant is the master's right of superintendence and control of the method of doing the work.
' Whereas para. 872 of Halsbury's Law of England, Fourth Edition, Vol. 25 at page 448 and para. 3 of the definition of the term "contract of service" given in Stroud's Judicial Dictionary, Fourth Edition, at page 587 read as follows:-- ' Halsbury's Law of England: "872. The contract of service.--- The relationship of master and servant is characterised by a contract of service, express or implied, between the master and the servant. A contract of service is one in which a person undertakes to serve another and to obey his reasonable order within the scope of the duty undertaken. Whether or not a particular contract is a contract of service is a question of fact, depending upon the terms of the engagement, the method of remuneration, and the power of controlling and dismissing the worker, although none of these factors is by itself conclusive. A contract of service must be distinguished from a contract for services. The distinction between a servant and an independent contractor is considered hereafter. The distinction between a service occupancy and a tenancy of premises is considered elsewhere in this work."
Stroud's Judicial Dictionary: "(3) A contract to render services is not the same thing as a 'contract of service', semble, the latter implies some relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance (Simmons v. Heath Laundry Co. (1910) 1 KB 543). Thus, there is no such contract of service between a taxicab driver and the owner of the cab which the driver takes out day by day, because the driver is not under the control of the owner while working the cab."
9. On the other hand, Mr. Sheikh Abdul Sarwana has referred to the case of United States of America v. Albert Silk (331 US 704), the case of Market Investigations Ltd. v. Minister of Social Security (1969) 2 QB 173), the case of Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCMR 888) and paras. 501 and 502 of the Halsbury's Law of England, Fourth Edition, Vol. 16.
' In the above first case, the subject-matter before the Supreme Court of United States were two appeals arising out of the judgments of the United States Circuit Court of Appeals for the Tenth Circuit for the district of Kansas and United States Circuit Court of Appeals for the Seventh Circuit for the northern district of Illinois, Eastern Division. The first case referred to in the above judgment is known by the name of SILK. The facts of the above case were that the respondent Albert Silk was doing business under the name and Style of Albert Silk Coal Company. He sued United States (the petitioner) before the Supreme Court to recover taxes allegedly to have been illegally assessed and collected from him for the years 1936 to 1939 under the Social Security Act as an employer of certain workmen, some of whom were engaged in unloading coal cars and the others in making retail deliveries of coal by truck. His courtyard consisted of two buildings; one for office and the other a gathering place for workeRs, He used to pay to unloaders an agreed price per ton to unload coal. He owned no truck himself but used to contact those workers who used their own trucks to deliver coal at a uniform price per ton. He used to pay the above agreed price to the truck owners which he used to recover from the customers alongwith the price of the coal. He succeeded in his action for the recovery of the amount recovered from him for the social security in respect of the above unloadcrs and truck owners before the District Court of United States for District Kansas and before the United States Circuit Court of Appeals for the Tenth Circuit. After that the matter came up before the Supreme Court of United States, which held that the factum that the unloaders did not work regularly was not significant and they did work in the course of the employer's trade or business, which brought them under the coverage of the Social Security Act. It was further held that SILK was in a position to exercise all necessary supervision over their simple task. As regards the driver owners of the trucks, it was held that they were independent contractors on account of their responsibility for investment and management.
' In the above second case, the facts were that appellant company was engaged in the field of market research. In addition to their permanent staff at its headquarters office, it employed interviewers for about 8,000 to 10,000 interviews annually to provide information for the company's customers about the habits and opinions of members of the general public, retailers or other people in commerce, industry and the profession. The company employed a small number of interviewers who worked full-time but most of the work they drew from a panel of about 470 interviewers mostly married women wishing to earn pin-money. Between May, 1964 and 3-12-1965 MRs, Anne Florence Irving was a member of the aforesaid panel and from time to time during that period, she acted as an interviewer in connection with that particular survey which the company was conducting. On 2-8-1966 the company applied to the Minister for a decision, whether while working under the above engagements MRs, Irving was included in the class of employed persons for the purpose of National Insurance Acts, 1964 and 1965 and was employed in insurable employment within the meaning of the National Insurance (Industrial Injuries) Acts, 1946 and 1965.
Section 1(2) of the latter Act defined "employed persons" as persons gainfully occupied in employment in Great Britain being employed under contract of service. The plea of the company before the Minister was that MRs, Irving worked for the company under a series of contracts for the services and was not covered by the above provision. However, the Minister held that MRs, Irving's employments by the company were under the contracts of service. The company filed appeal which came up for hearing before Cooke, J., before whom inter alia it was urged by the company that the contract between the company and MRs, Irving made no provision for time of, sick pay and holidays and, therefore, it was not a contract of service. It was also urged before him that the relationship of master and servant was normally conceived of a continuous relationship and that the factum that there was a series of contracts was more consistent with those contracts being contracts for services than the contract of service. The above contentions were repelled and with reference to the above second submission, the following observations were made:-- "For my part, I doubt whether this factor can usefully be considered in isolation. It must I think be considered in connection with the more general question whether MRs, Irving could be said to be in business on her own account as an interviewer. In considering this more general question I take into account the fact that MRs, Irving was free to work as an interviewer for others, though I think it is right to say that in this case there is no finding that she did so. It also takes into account the fact that in her work as an interviewer MRs, Irving would, within the limits imposed by her instructions, deploy a skill and personality which would be entirely her own. I can only say that in the circumstances of this case these factors are not in my view sufficient to lead to the conclusion that MRs, Irving was in business on her own account. The opportunity to deploy individual skill and personality is frequently present in what is undoubtedly a contract of service. I have already said that the right to work for others is not inconsistent with the existence of a contract of service. MRs, Irving did not provide her own tools or risk her own capital nor did her opportunity of profit depend in any significant degree on the way she managed her work.
' Taking all the factors into account and giving full weight, I hope, to Mr. Pain's persuasive arguments, I am clearly of opinion that on the facts of this case the Minister was right in concluding that MRs, Irving was employed by the company under a series of contracts of service, and the appeal accordingly must fail."
' In the above third case, this Court has construed clauses (8) and (9) of section 2 and section 20 of the Ordinance which are in issue in the case in hand. The relevant facts of the above case were that the respondent was engaged in manufacturing sugar at its mills located in Ranipur, district Khairpur. It appears that for the sugarcane crushing season 1980-81 starting on 16-11-1980, it entered into different contracts with independent contractors for carrying out at its premises or in respect of its functioning certain works like removal of--
(i) mud/ash;
(ii) bagasse;
(iii) loading/unloading of sugarcane;
(iv) sugar bag stacking; and
(v) carriage of its employees by buses.
' The appellant i,e. Sindh Employees' Social Security Institution raised a demand against the respondent for contribution towards the social security fund in respect of the workmen employed by the independent contractors, which was contested by the respondent-mill. It lost the case before the Commissioner but succeeded in appeal before the Social Security Court, which finding was maintained by the High Court in a miscellaneous appeal under section 64 of the Ordinance.
The Institution filed an appeal with the leave of this Court against the judgments of the Courts below. Shafiur Rahman, J. After referring to the definitions of the terms "employee", "employer", and "wages" given in clauses (8), (9) and (30) of section 2 and the provision of section 20 particularly subsection (9) thereof, held as follows:-- "In this context of these definitions the charging provision (section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of section 20.
Such extensions cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer, the statute made provision for it directly (state undertakings-- section 2(9) or indirectly section 20(8) and section 20(9). By construction or interpretation if the Courts were to introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be rewriting the law itself. Such an interpretation being in derogation of the express provision that 'in every other case' it is the owner who is to be the employer."
' As regards paras. 501 and 502 from the Halsbury's Law of England, ' Fourth Edition, Vol. 16, it may be stated that Mr. Sheikh Abdul Sarwana has particularly relied upon the following portions thereof:- "50i. .............................
' One test which emerges from the recent authorities is whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether on the other hand his work is not integrated into the business but is only accessory to it 01 it is done by him on his own account.
502. ...............................
' A person may be the employee of another even if a third party has the power of appointing or dismissing him or of requiring his dismissal or has powers of direction and control in regard to his work, or pays him his wages. However, a contract to render services to a third person is not a contract of service. A person may be an employee even if he is remunerated otherwise than by wages."
10. The above-cited cases, the extracts from Halsbury's Laws of England and the definition of the term "contract of service" given in the Stroud's Judicial Dictionary indicate that various tests/criteria have been applied in order to determine whether under an agreement or otherwise relationship between the two persons is that of master and servant or that of employer and employee. There cannot be any rigid or fixed criterion, as it will vary from case to case in view of the different languages employed in different statutes and the contract documents. However, it may be pointed out that conventional definitions of terms of "master and servant" no longer hold the ground as after the industrialisation in the world. Efforts have been made by the law-makers to enlarge the scope of the definitions of the terms "employer" and "employee" particularly in the legislations which have been enacted for the benefit of the working class with the object to extend its benefit to the maximum number of people of the class, for whose benefit the same have been enacted. The above U.S.A. And English cases are the examples of extended definition of the term "employee", wherein loaders of trucks and the interviewers respectively though not employed on regular basis were traced as employees under the relevant statutes.
' So, in the instant case, the question, whether there exists relationship of employer and employees between the appellant and the porters is to be determined with reference to the relevant provisions of the Ordinance and not with reference to the other statutes of Pakistani or foreign origin which are not couched in identical language. The judgment of this Court in the case of Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (supra) is not directly relevant as pointed out by Mr. Shahenshah Hussain and rightly candidly conceded by Mr. Sarwana on account of the fact that undersubsection (9) of section 20 of the Ordinance, the owner of the mill is to be considered as employer for the purpose of contribution towards the workmen employed by the independent contractors for working at the mill. For the purpose of tile present case, above clauses (8), (9) and (30) of section 2 of the Ordinance are relevant, which read as follows:-- "8. 'employee' means any person working, normally for at least twenty-four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied but does not include--
(a) persons in the service of the State, including members of the Armed Forces, Police and Railway servants;
(b) persons employed in any undertaking under the contract of any Defence Organisation or Railway Administration;
(c) persons in the service of a local council, a municipal committee, a cantonment board or any other local authority-,
(d) any person in the service of his father, mother, wife, son or daughter, or of her husband;
(e) ...............................
(f) any person employed on wages exceeding one thousand five hundred rupees per mensem."
(9) 'employer' means in the case of works executed or undertakings carried on by any contractor or licensee on behalf of the State, the contractor or licensee working for the State, and in every other case the owner of the industry, business, undertaking or establishment in which an employee works and includes any agent, manager or representative of the owner";
30. 'wages' means remuneration for service paid or payable in cash or in kind to a secured person, not being less than remuneration based on the minimum rates of wages declared under the Minimum Wages Ordinance, 1961 (XXXIX of 1961), without taking account of deductions for any purpose, under a contract of service or apprenticeship, expressed or implied, and shall be deemed to include any dearness allowance or other addition in respect of the cost of living and any payment by the employer to a secured person in respect of any period of authorised leave, illegal lock-out or legal strike; but does not include--
(a) any payment for overtime; or
(b) any sum paid to the person employed to defray special expenses entailed by the nature of his employment; or
(c) any gratuity payable on discharge; or
(d) any sum paid as bonus by the employer;"
' A perusal of the above-quoted clause (8) indicates that an employee means any person working, normally for at least twenty-four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied, but it does not include the personnel mentioned in above sub-clauses (a) to (f). Whereas the term "employer" means the owner of the industry, business, undertaking or establishment in which an employee works and includes any agent, manager or representative of the owner. It also includes the contractor or licensee working for the State in the case of works executed or undertakings carried on by any contractor or licensee on behalf of the State.
' It may further be noticed that clause (30) of section 2 of the Ordinance defines "wages" as means remuneration for service paid or payable in cash or in kind to a secured person, not being less than remuneration based on the minimum rates of wages declared under the Minimum Wages Ordinance, 1961 without taking account of deductions for any purpose under a contract of service or apprenticeship, expressed or implied. It includes dearness allowance or other addition in respect of the cost of living and any payment made in respect of any period of authorised leave, illegal lock-out or legal strike but it does not include the items mentioned in sub-caluses (a) to (d).
11. In the case in hand, a perusal of the evidence on record clearly establishes that the relationship of the appellant and the porters is that of employer and employee and that what is retained or paid to the porters falls within the ambit of "wages" as defined by the above clause (30) of section 2 of the Ordinance. In this regard, it may be pertinent to quote the following statement of the appellant's witness Mr. S. All Abrar Jafri:-- "On request of CAA. We started providing porter service to the passengers at Airport. Any unemployed person who wishes to work as porter will come on his own accord at Airport and will submit his particulars to a coordinator at the counter of porter service. The coordinator is O.S.D. And employee of Shaheen Airport Service. Some persons stand on the porter service counter. He is designated as coordinator. The receipt book remains in possession of the coordinator. The porter who carries the luggage of the passenger receives Rs,10 per trip from the passenger retains Rs,2 with himself and deposit Rs,8 at the counter of porter service with coordinator who issues receipt of Rs,10 to the porter who gives this receipt to . The passenger. No separate receipt of Rs,8 received from the porter is given by the coordinator to the porter.
' The porters get their uniform by paying from their pocket from the shop. CAA. Prescribed and approved the uniform of the porteRs, The uniform was prescribed from the beginning. The CAA. Had approved the porters uniform after the same was discussed by the Shaheen Airport Service and the CAA. The coordinator gives the number to porter daily when the porter reports for duty and after the porter completes his duty, he takes back the number from the porter. The number plate is of plastic. The porters themselves get the porter numbers manufactured from their own pocket.
The number of the porter changes from shift to shift. If one porter gets some number in one shift then the same porter will get different number in other shift."
12. Reference may also be made to the statement of Mr. M. Yousaf, Security Officer, A.S.F. Karachi Airport, to the following effect:-- "In security pass we mention the name of porter and also the name of Shaheen Airport Service and in case of others we mention their department. The porters do not deposit security passes after their duty is off with the Airport Security Force daily, but the passes remain with the porters till their expiry. Shaheen Airport Services had addressed a letter for renewal of A.S.F. Entry passes which are security passes on 23-8-1989 alongwith the list of the employees of the porter service and I produce photostat copy of the same (four pages) as Exh-RW 1/2."
13. From the above-quoted extracts from the above witnesses' statements, it is apparent that for all intents and purposes the appellant controls the working of the porters at the airports, inasmuch as it selects the persons to whom it wishes to employ. It obtains entry passes for their entry from the Airport Security Force. It provides plastic number plates to the porters for wearing on the uniform, without which they cannot operate. It also makes them to wear a prescribed uniform with the name of Shaheen on it. The porters work shift-wise as per decision of the appellant. It shares porter charges at the ratio of Rs,8 and Rs,2 out of Rs,10 per trip. The porters in fact work for the appellant in connection with its business and undertakings in terms of clause (9) of section 2 of the Ordinance, for which they get wages in the form of Rs,2 per trip. We may observe that it is not the case of the appellant before us that any of the porters for which the respondent raised demand for contribution had worked less than 24 hours per week. Since the appellant could have the knowledge of the factum that a particular porter had worked less than 24 hours in a particular week, it was for it to have pleaded the same specifically.
14.
14. Mr. SA. Sarwana has invited our attention to the fact that the word "any" has been used thrice in clause (8) of section 2 of the Ordinance while defining the term "employee" in order to enlarge the scope of the above definition. He has referred to the definition of the word "any" given in Black's Law Dictionary, Fifth Edition, page 86, the case of Compagnie Continentale (France) S.A. v. Pakistan National Shipping Corporation and 2 others (PLD 1986 Karachi 447) and the case of Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563).
15. In the above dictionary, the word "any" inter alia has been defined as an indefinite member, one indiscriminately of whatever kind or quantity. It also provides that the word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject-matter of the statute.
' In the above first case, a learned Single Judge of the High Court of Sindh, while construing the word "any" used in section 3(2)(h) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980, pointed out that the above word has to be given a wide meaning and cannot be construed as to limit the agreement between the parties to the suit.
' Whereas in the second case this Court, while construing section 2(2) of the Foreign Exchange (Prevention of Payments) Act, 1972, on the basis of the definition of the term "any" given in the above Black's Law Dictionary, observed that the effect of the use of the word "any" inter alia before the word "claim" makes the expression of very wide amplitude.
16. It is true that the above sub-clause used the word "any" as follows:-
(i) any person working;
(ii) any industry, business, undertaking or establishment;
(iii) any contract of service or apprenticeship.
' The effect of prefixing the word "any" with the above three items is to make the definition of the word "employee" very wide as to include even the persons who would not have been otherwise servants under the old concept of master and servant. The judgments cited by Mr. Sarwana on the construction of the word "any" support his contention.
17. The upshot of the above discussion is that the impugned judgment of the High Court is unexceptionable and, therefore, the appeal is dismissed. However, there will be no order as to costs. {{URDU TEXT}}