JUDGMENT MIAN ALLAH NAWAZ, J.- This petition, under section 115 of the Civil Procedure Code by defendants, calls in question the appellate Court's decree dated 9.5.1979 whereby that Court accepted the appeal of the respondent, set aside the decision of first Court dated 24.11.1975 and decreed the suit instituted by the respondent.
2. The material facts are;that M/S Fazal Din & Sons/respondent a registered firm had 81 employees in year, 1972. Their names, duties and their services are meticulously detailed in documents/Ex.PA/A-1. They shall be hereinafter described as 'employees'. In order to provide for the education of workers'children, the President of Pakistan promulgated the workers'Children (Education) Ordinance No.XI of 1972 on April, 1972' with immediate effect. This shall be hereinafter described as "Ordinance No. XI of 1972/Ordinance". Pursuant to this Ordinance, the respondent was called upon by the Excise and Taxation Officer, Lahore to explain as to whether its employees were covered by Section 3 of the Ordinance. In reply, the respondent pleaded that its employees were not workers within the ambit of section 3 of the Ordinance. This contention was repelled by the Excise and Taxation Officer, Lahore, who vide order dated 25.3.1975 called upon the respondent to pay educational cess in respect of its employees' children. Instead of complying with this, the respondent instituted a suit for seeking declaration to the effect that its employees were not workers as defined by section 2 (c) of the Ordinance and so it was not liable to pay the educational cess in respect of their children. The suit was contested. Upon the consideration of the evidence adduced by the parties, the learned Court of first instance came to the conclusion that the employees of the respondent were the workers within the meaning of section 2(c) of the Ordinance and so the respondent was liable to pay educational cess as mendated by section 3 of the Ordinance. On appeal, the learned first Court of appeal came to a different conclusion and held that the employees were not performing any duties within the meaning of section 2(c) of the Ordinance, were, therefore, not workers and so the respondent-firm was not. Liable to pay educational cess in respect of their children under section 3 of the Ordinance. This is how this revision petition has come to this Court.
3. The learned counsel for the petitioners assailed the impugned decision on two grounds:- Firstly; that the employees of the respondent were, in fact, rendering skilled, unskilled manual as well as clerical wojk to respondent. Their salaries did not exceed Rs, 1000/- and so the employees were workers within the terms within the terms of section 2(c) of the Ordinance. Continuing, he argued that the authorities cited by the learned counsel for the respondent and by the appellate Court were in applicable to the employees as they related to the interpretation of expression "workers" contained in Industrial Relations Ordinance (No.XXIII of 1969)/herein after called as "Ordinance N0.XXIII of 1969". According to the learned counsel, underlying object of the Ordinance No.XXIII of 1969 and the Ordinance of XI of 1972 were entirely different and so the Judgment of superior Judiciary given under Ordinance No. XXIII of 1969 were not applicable to the employees of the respondent.
Secondly, that the employees, for whose benefit the impugned notice of demand was given to the respondent were not impleaded as parties in the suit. On this premise, it was urged that the suit filed the respondent was illegally constituted and merited to be dismissed on this ground alone.
4. On the contrary, the learned counsel for the respondent supported the impugned decision by relying upon Syed Matloob Hassan Vs. Brooke Bond Pakistan Limited, Lahore (1992 SCM R 227), Karachi Electric Supply Corporation Ltd. (Regd) Vs. Director/Collector(Taxes), Excise & Taxation Karachi and another (1981 PLC 396), Brooke Bond (Pakistan) Ltd Vs. Conciliator appointed by the Government of Sind and six others (PLD 1977 SC 237), Commr. I.T, Pindi Vs. Noon Sugar Mills (PU 1975 Lahore 359), Pak. Tobacoo Co. Ltd. Vs. Employees Union (PLD 1961 SC 403) and Muslim Wakfs Board Rajasthan Vs. Radha Kishan (AIR 1979 SC 289).
5. From the foregoing narration of facts, circumstance, and the arguments of the parties, it is clear to me that the fate of this case hinges upon the interpretation of expression 'worker' contained in section 2(c) of Ordinance No. XI of 1972. According to the learned counsel for the petitioners the employees of the respondent fell within the domain of the above provision and the respondent- firm was liable to pay educational cess in respect of their children. On the contrary, the learned counsel for the respondent strenuously submitted that its employees did not render any work as required by section 2(c) of the Ordinance to come within, the ambit of term "worker." No doubt, the expression 'worker' had been defined in different Labour laws that is Industrial Disputes Act(XIV of 1947), Industrial Relations Ordinance (N0.XXIII of 1969), Workers' Children(Education) Ordinance (No.XI of 1972) and Sindh Workers Children (Education) Cess Ordinance, 1978. This expression came up for consideration before the superior Judiciary on number of Occasions in different circumstances. The question as to whether Salesman was worker within the term of section 2(s) -of -the Industrial Disputes Act, came up for consideration before the Supreme Court in Pak. Tobacco Co. Ltd Vs. Employees Union (PLD 1961 SC 403). Speaking for the Bench his Lordship Mr. Justice A.R.
Cornelius, (the then Chief Justice of Pakistan) said that:- 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 1 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.
6. In Brooke Bond (Pakistan) Ltd Vs. Conciliator appointed by the Government of Sindh and 6 others (PLD 1977 S.C.237), again the question arose as to whether the Salesman was workman within the terms of section 2 (XXIII) of Industrial Relations Ordinance (No. XXIII of 1969). After the review of case law, it was held that the salesman was a workman. Speaking for the Bench, his Lordship Mr. Justice Muhammad Akram (as he then was) said that:- "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.
According to section 2(viii) of the Industrial Relations Ordinance "employer" in relation to an establishment, means any person or body of persons whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes: "(a) .....................................
(b) any person responsible for the management, supervision and control of the establishment....................
(c) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or other officer or person concerned with the management of the affair thereof.
"According to section 2(xxviii) of this Ordinance "worker" and "workman" me in 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 expressed or implied, and, 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 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."The two clauses(a) and (b) reproduced above were added by the Industrial Relations (Amendment) Act, 1973.
It is clear that in enacting section 2(xxviii) of this 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.
"7. This expression again came up for consideration in Syed Matloob Hassan Vs. Brooke Bond Pakistan Limited,Lahore. (1992 SCM R 227) His Lordship Mr. Justice Ajmal Mian, speaking for majority view said that the rule laid down in Pak. Tobacco Co. Ltd. Vs. Employees Union (PLD 1961 SC 403) was correct. It was held: "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 survey of the case law will not be complete without noticing the rule laid down in Kar.Elec.Supply Corpn.Lld. Vs. Director/Collector (1981 PLC 3%). The dispute in this case arose out of the interpretation of term 'Worker'embodied in section 2(c) of Sind Workers Children(Education)
Cess Ordinance, 1978. In this case Karachi Electricity Supply Corporation/petitioner was served with a notice of demand under the OrdinanceAgainst this demand, the petitioner filed a Constitution petition which was dismissed by the Division Bench of the Karachi High Court on the premises that the notice of demand was appealable under the Ordinance and so without exhausting that remedy Constitution petition was not competent. Pursuant to this decision, the petitioner filed appeal which was dismissed by the appellate Authority. In this factual background, the petitioner again invoked the Constitutional Jurisdiction of Karachi High Court successfully. The Division Bench came to the conclusion that the respondents employees were not the workers and so the petitioner was not liable to pay educational cess of their children. The decision was grounded upon interpretation of the expression under Industrial Relations Ordinance by superior Judiciary. It will be instructive to quote the relevant portion of this judgment:- "From the above-cited and discussed cases, it is evident that the superior Courts and the Industrial Courts while interpreting the definition of the term 'Workman' couched in more or less same language used in the various Acts/Ordinances, have held that a person engage in the distribution of the products, a foreman, a chemist an incharge of the printing section of a textile mill and a mistri are not covered by the definition of the above term, "Workman".It is also evident that the question, as to whether a particular employee is covered by the definition of the terms "Worker" or "Workman" is also to be judged on the basis of the duties and the functions which he performs irrespective of his designation. If an employee performs the work which falls within the works mentioned in the defmition, he will be covered by the definition of "workman" or worker subject to ceiling of the salary provided in the relevant enactment. It may be pertinent to mention again that a Division Bench of this Court while dismissing the aforesaid earlier petition, namely C.P. 970/78 in limine, observed that the question whether or not the workmen employed with the petitioner Company are covered by the above Ordinance is a mixed question of fact and law, to be decided by the Appellate Court. However, from the impugned order it is evident that the respondent No. 1 was of the view that every employee except those getting more than Rs. 1,000/- is covered by the definition of the term "worker" given in the Ordinance irrespective of his nature of the work. It may be advantageous to quote hereinbelow the relevant portion of the impugned order, which reads as follows:- "They have now filed the returns. The returns admittedly consists of employees exceeding 8,000 workers but this figures includes those getting more than 1,000 per month who are not liable to payment of Education Cess under the Ordinance. The learned counsel contend that supervisory staff, getting less than 1,000 Chowkidars, Office attendance and delivery Peons, Bill Distributors, TelephoneOperators, Lift Operators, Drivers,working with Officers, employees in the Dispensary, Watchmen and staff of Security Department are not covered by the definition of workers as contained in the Ordinance. The learned counsel further refer to various rulings in connection with in contention that the employees referred to above are not workers for the purpose of this Ordinance.These rulings are related to cases under various enactment and not in respect of Educations Cess Ordinance. I, therefore, feel that all workers other than those getting more than Rs.1,000 per month are workers for the purpose of Education Cess Ordinance. I, therefore, accept the contention of K.E.S.C to the extent that those officers and staff who are getting more than Rs.
1,000/-per month should be deducted from the total number of workers and Education Cess. Levied on the same figure. I, therefore, set aside the order of the Excise and Taxation Officer P Division dated 8th March, 1978 and direct that Education Cess for the year, 1975-76 be recovered on the basis of 5, 414 workers and for the year, 1976-77 on the basis of 4,340 workers and for the year, 1977- 78 5,682 workers.The counsel are requested to file similar returns for the year 1972 to 1974 to enable the Excise and Taxation Officer to compute the proper dues and recover the balance if any.
"8. Coming to the merits of this case it is necessary, at the outset, to reiterate the cardinal principle of Construction of statute that it is not permissible to borrow the meanings attached to expression used in one statute as aid while construing an expression in a different statute which is meant for different purpose and deals with the wholly different subject matter. Reference be made to Commr.
I.T. Pindi Vs. Noon Sugar Mills (PU 1975 Lahore 359), Loknath Vs. State of M.P. (AIR 1960 M.P. 181), Muslim Wakfs Board, Rajasthan Vs. Radhq Kishan (AIR 1979 S.C. 289) and Shujauddin Vs. Pakistan Coast Guards, Karachi and 3 others (PLD 1978 Karachi 1110). Guided by the above rule of interpretation, I herein proceed to examine as to whether the decision of superior judiciary regarding the interpretation of 'worker' used in Act No. XIV of 1947 and Ordinance No-XXIII of 1969 are applicable to the term 'worker' used in Ordinance No.XI of 1972. The preamble of the Ordinance No. 11 of 1972 shows that this was enacted and promulgated to provide for Education to worker's children. Every employer under section 3 of the Ordinance was enjoined to pay Provincial Government educational cess at the rate of one hundred rupees, per worker per annum. The word "worker' was defined in sub-section (c) of Section 2, of Ordinance No. XI of 1972 which reads as under:-
(a) xxxxxxxxxxxx
(b) xxxxx" xxx xxx
(c) "Worker" means any person employed, whether directly or through any other person, in any establishment to do any skilled, or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed (one thousand five hundred) rupees but does not include-
(i) persons in the service of the State including members of t^ie Armed Forces, Police Force, Railway Servants;
(ii) persons employed in any undertaking under the control of any defence organisation or railway administration;
(iii) persons in the service of a Local Council, a Municipal Committee, a Cantonment or any other local authority."
9. From the plain look at the above provision, it becomes clear that the word is used in a wide connotation. The worker is a person who is employed directly or indirectly to do any skilled/unskilled/manual/clerical work. This definition is subject to only one condition that the salary of the employee does not exceed 1,000/- rupees. The underlying object of this statute is to educate the children of workers, who are, in fact, the back bone of any establishment. Very clearly this statute is, in my humble opinion, a progressive and a beneficient legislation. This object is noble i.e. To alivate the condition of workers, who are un-disputedly low paid segment of society. In such a statute harmonizing and progressive construction is to be adopted. As far as Act XIV of 1947 and Ordinance XXIII of 1969 are concerned, they provide in-built mechanism for formation of trade union, regulation of relations between employer and the employee and for settlement of their duties. No doubt, the object of above statute is to engender the harmony between the employer and the employee in order to maintain the peace in Industries. From the above, it becomes evident that the object of the Act XIV of 1947, Ordinance No.XXIII of 1969 and Ordinance No.XI of 1972 are entirely different. The first two statutes related to wide subject while the last statute deals with a narrow subject. Very clearly the above statements are not pari-materia with Ordinance No. XI of 1972. Seen from this perspective, I have no hesitation in coming to the conclusion that the definition of 'worker' given in Act XIV of 1947 and Ordinance N0.XXIII of 1969 cannot be extended to expression "worker" used in Ordinance No.XI of 1972. From the perusal of Ex.PA/A-1 it is quite clear that all the employees except Wahid-ud-Din Ahmed, Chief Accountant, Sh,Munawar Hussain, Sales Manager and Maj.M.R Darrah, Marketing Officer ,had been performing skilled/unskilled/manual/clerical services to the respondent and so they were workers within the meaning of section 2(c) of Ordinance NoXI of 1972. On this view I find that the respondent was liable to pay educational cess in respect of their children. With due respect to his Lordship Mr. Justice Ajmal Mian (the Judge of Sind High Court) I am not inclined to follow his view in Kar.Elec. Supply Corpn. Ltd Vs. Director/Collector (1981PLC 396).
10. Equally strong is the second contention of the petitioners. It is, now, well settled that the party, in whose absence, a decree cannot be passed, is a necessary party. No doubt the employees of the respondent were the beneficiary of the demand notice impugned in the suit. They were necessary parties. Despite this, they were not impleaded as a party.The suit filed by the respondent, thus in my view, was incompetent. The decision of the learned Appellate Court is clearly in breach of the above well settled principle and so it cannot be sustained.11. As a result of the above discussion, this revision petition succeeds. I, accordingly, set aside the decision rendered by the learned AddL District Judge, Lahore dated 9.5.1979 and hereby restore the Judgment and decree dated 24.11.1975 passed by the learned first Court. The petitioner shall be entitled to recover from the respondent educational cess of its employees, children from 25.3.1975 upto now. The respondent shall also bear the costs of proceedings throughout.