This judgment will also dispose of Appeal No. 99 of 1975.
2. Mr. Ijaz Ahmed filed a petition before the Junior Labour Court, Lyallpur, on 2-5-1974. He claimed that he was working as Booking Clerk in the respondent-Company namely; Sher Brothers Transport Company, Lyallpur, for the last four and a half years at a monthly wage of Rs. 150, per month. He said in his petition that the Company was a big establish--ment, having its branches at Gojra and Lahore, it had to workshops at Lyallpur where the bodies of buses were constructed and repair work was done, that it had 25 buses and that total number' of employees in the Company was 166. It was further stated in the petition that the petitioner claimed cost of living allowance Rs. 35 per month from 1-8-1973 but instead of giving this allowance he was penalised by transferring him from the post of Booking Clerk to the post of Petrol Pump Attendant. He said that by this transfer he suffered a loss of Rs. 12 per day. According to him he used to get Rs. 4 per day as special allowance and Rs. 8 as commission per day, and the effect of his transfer was that he was deprived of both these allowances. He claimed to reliefs from the Junior Labour Court. The first relief was that he should be paid Rs. 35 per month as cost of living allowance with effect from 1-8-1973. His second relief was that he should be paid mss, 4 Per day as special allowance and Rs. 8 per day as commission with Fred from 6-3-1974.
During the pendency of the above petition, the petitioner filed another petition on 17-6-1974. In this petition he said that ha was removed from service on 21-5-1974 by the employer coming to know that he had filed a petition before the Junior Labour Court. In the second petition the relief claimed was re-instatement with back benefits. Both the above applications were tried jointly by the Junior Labour Court.
4. A separate reply was filed in each petition. In both the replies the stand taken by the employer was the same. It was stated that the Transport Company was a very small establishment, that it was plying only one bus, that the total number of employees was four and as such the labour laws i.e. Industrial Relations Ordinance, 1969 and the Standing Orders Ordinance, 1968 were not applicable to this establishment. It was further stated that the cost of living allowance cannot be claimed through Junior Labour Court and recovery of such deduction could be made at a different forum. On merits it was stated that Mr. Ijaz Ahmed was never employed by the said Company.
5. The Junior Labour Court held that the petitioner was employee of the respondent, that his dismissal was illegal because neither any show-cause notice was served to him nor he was afforded any opportunity to defend him. Consequently, a direction was issued to the respondent to re-instate the petitioner with full back benefits.
6. Both the parties have filed appeals. The grievance of the employee is the Junior Labour Court has not clarified in its order that he was entitled to get cost of living allowance from 1-8-1973 and he was entitled to work as Booking Clerk. On the other hand, the grievance of the employer is the findings of the Junior Labour Court on the questions of fact and law are incorrect. As the questions are to be decided in both the appeals, there--fore, they are taken together.
7. The questions which need determination in appeal are; first, whether the employer, 'Sher Brothers Transport Company is governed under the pro--visions of Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968, and second, whether the petitioner Ijaz Ahmed was an employee of the said Company.
8. The Industrial Relations Ordinance,1969 has been enacted to regulate the relations between the employers and the workmen. It applies to every establishment, which means any office, firm, industrial unit, undertaking, shop, or permises in which workmen are employed for the purpose of carrying on an industry. The scope of term "Industry" is very wide. This term means any business, trade, manufacturing, calling, service, employment or occupation. The term is so wide that even a domestic servant is likely to fall within the meaning of establishment. An industry need not be necessarily for profit making. It can be an undertaking like a charitable institution even. In brief, any institution where a workman has been em--ployed, shall be governed by the provisions of Industrial Relations A Ordinance, 1969. Of course certain employments are excluded an subsection 3 of section 1 provides that the Ordinance is not applicable to an person employed in Police, or any of the defence services of Pakistan or any services or installation connected with or incidental of the Armed Forces o Pakistan including an Ordnance factory, maintained by the Federal Govern-- ment or to any person employed in the administration of the State other than those employed as workmen by the Railway, Post, Telegraph and Telephone Departments. In nutshell the position is that this Ordinance is applicable to all the establishments except those which are mentioned in subsection (3) of section 1 of the Ordinance. The employer in the present case is Sher Brothers Transport Company and, without any manner of doubt the above Ordinance is applicable to it.
9. The real question is whether the Standing Orders Ordinance, 1968, is applicable to it or not. It applies to every industrial or commercial establishment wherein 20 or more workmen are employed. It is on the basis of number of workmen that a plea has been raised that this Ordinance is not applicable. The employer says that the number of workmen in the establish--ment is four only whereas the case of the employee is that the number of workmen is 166. Both the parties have adduced evidence on this point. Ijaz Ahmed (P. W. 1) stated that there were 168 workman in the Company. He attached a list Exh. P. A. It was prepared by him. This list consists of to pages. On one page he has mentioned the names of the drivers, conductors and the checkers. According to this list, there are 28 drivers, 28 conductors and four checkers. The second list is of other employees including Stand Manager, clerical staff, mechanics, hawkers and chowkidars. In this list 110 workers have been shown. He further stated that the Company owned 25 buses. The number of these buses is shown in Exh. P. B. This list was also prepared by the petitioner himself. Apart from it he produced to office orders, Exh. P. C. And P. D. Both of them are stated to have been issued by Muhammad Bashir, General Manager. These office orders show the duty roster of booking clerks and that seven booking clerks were employed by the Company.
10. The second witness is Mahmood Ahmed, Booking Clerk (P. W. 2). He is an employee of Sher Brothers Company. He said that he was dismissed by the Company but he was re-instated by the Junior Labour Court. He said that the office order Exh. P. C. Was issued by Muhammad Bashir, General Manager of the Company, that he signed it in token of its knowledge. He further said that there were 168 employees in the Company and that the list of buses given in Exh. P. B. Was correct.
In the cross-examinations, he said that the Company never issued any appointment letters to its workers and that he could not say in which register his name and the names of other employees were entered. He admitted that every employee used to get his wages by giving a receipt in the register.
11. The third witness is Syed Razzaque Hussain, President of the workers union of the employees. He said that an industrial dispute arose between workers and the employer. A settlement was arrived at and a copy of the settlement is Exh. P. K. He said that be signed it on behalf of workers whereas Saeed Ahmed, Accountant signed it; on behalf of the employer. No question was asked to him about the number of workers or number of vehicles employed by the respondent.
12. On behalf of employer to witnesses were examined. Nazir Ahmed (R. W. 1) is the Mukhtar-e-Aam of the Director of the Company. He said that the Company was plying only one bus and had four employees only. He said that the Company was not keeping any Booking Clerk since 1971. The second witness is Liaquat Masih (R. W. 2). He said that he was servant of Munawar Hayat & Company and that the petitioner Ijaz was serving that Company till April, 1974. He showed a register to the Junior Labour Court. This register is not on record and this is not known if the name of Ijaz Ahmed was mentioned in it or not. The register was prepared by this witness but the name of the Company was not printed on it and it was written by the witness on the outer cover.
13. The respondent-Company is a limited concern. It is unbelievable that it has got only one bus and total number of employees is four. The petitioner called upon the respondent-Company to produce its record but they refused to do so on the ground that the record was with the Income- tax Department, The petitioner has prepared the list of all the employees. It is stated by the petitioner and another worker that the appointment letters are not issued by the Company. It appears to me that the respondent. Company is not keeping proper record to show the number of employees. There may be various reasons to do so. They might do so to avoid the income-tax or they might save their skin from the labour laws. The very fact that they have not brought the record of the Company shows they are con--cealing the truth. In these circumstances, the petitioner could only prepare the required list in his own hand. The Company has not produced any witness of any importance. One Mukhtar-e-Aam was produced and a witness from another Company. No weight can be given to the evidence of these witnesses. Believing the evidence of the petitioner I hold that at any rate the number of employees in the service of the respondent-Company is more than twenty. This Company is, therefore covered under the provisions of Standing Orders Ordinance, 1968.
14. The next question is whether the petitioner was employee of the respondent-Company. In this connection he relied on office order Exh. P. C. And another office order Exh. P. D. Both these office orders were signed by the General Manager Muhammad Bashir. It was denied by the respondent-- Company that the said Muhammad Bashir was their General Manager. At least one witness Mahmood Ahmed (P. W. 2) has proved first office order. He said that he was working as booking clerk of the Company and he signed the office order on its back. The evidence of Ijaz and Mahmood proved beyond any manner of doubt that the petitioner was employee of the respondent. The point is decided in favour of the petitioner.
15. The last question is as to what relief can be given to the petitioner. His position is that he was working as booking clerk, when he demanded the cost of living allowance it was not given to him and so he was constrained to file a petition under section 25-A of the Industrial Relations Ordinance, 1969 before Junior Labour Court, claiming that he was entitled to receive the cost of living allowance with effect from 1-8-1973. His second relief was that he was relieved from the post of booking clerk and he was made an Attendant of the Petrol Pump, where he suffered a loss of Rs.
12 per day. During the proceedings of this petition the petitioner was removed from service on 21-5- 1974. In these circumstances, the appeal of the petitioner Ijaz Ahmed is accepted and the respondent-Company is directed to re-instate him as Booking Clerk with effect from 21-5-1974 and that he shall be paid full back benefits, calculating them as under: -
(1) Cost of living allowance @ Rs. 35 per month with effect from 1-8-1973.
(2) Daily allowance @ Rs. 4 per day and the Daily Commission @ Rs. 8 per day, with effect from 6- 3-1974 to date.
(3) Arears of pay with effect from 21-5-1975 to date.
16. The appeal of the employer is dismissed.