This is an appeal against the award of the learned Chairman of the West Pakistan Industrial Court (Central Zone), Lahore, dated 31st October 1969. The impugned order was passed on an application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance). The facts giving rise to the appeal briefly put are these.
2. The appellant was originally appointed as Junior Clerk on 25th October 1961, by the respondent- Corporation. He was thereafter promoted as Assistant Store Keeper, on 22nd December 1962, and then as Store Keeper on 20th April 1964. His services were terminated as Store Keeper on 16th June 1966: He filed an appeal against the order dismissing him from service. The appeal was allowed and the appellant was re-instated in service. The appellant's services were again terminated on 17th February 1967, on a month's notice. The appellant filed an appeal against the order removing him from service. He was, however, re--instated from 17th March 1967, after the expiry of the notice period, on 16th March 1967. The appeal is still pending, but the services of the appellant have been terminated on 27th November 1967. The appellant has filed another appeal against the order dated 27th November 1967, dismissing him from service, on 5th December 1967.
3. It appears that because of the long delay in disposal of the appeals filed by the appellant, the appellant was constrained to move an application under section 38 of the Ordinance. He alleged in the application under section 38 of the Ordinance, that a number -of Industrial Disputes were pending between the workmen and the Corporation at the time when the services of the appellant were terminated. He alleged that the termination of the services of the appellant was illegal and at any rate the junior-- most Store Keeper should have been removed from service. If the appellant was the junior-most Store Keeper, he should have been transferred as Assistant Store Keeper. Even if he was the junior-most Store Keeper, he should have been sent as a Junior Clerk. It was further alleged that as he continued to serve as Store Keeper from 17th March 1967, up to the date that his services were determined, no post of Store Keeper was in excess. The appellant on these grounds claimed that he should be re-instated.
4. The learned Chairman of the Industrial Court came to the conclusion, in the first place, that the appellant cannot be said to be a workman within the meaning of the Ordinance as the Mohd same applied to "workmen and not to salaried Junior Clerks, salaried Assistant Store Keepers and salaried Store Keepers". In Road the second place, it was held that the appellant failed to establish Traps, that the conditions of his service were altered to his prejudice, Corp, inasmuch as he was removed from service on 27th November 1967, in consequence of abolition of a post. He was paid his salary for one month in lieu of prior notice. It was further observed that the appellant himself accepted a fresh offer of appointment from the respondent as Store Keeper with effect from 17th March 1967. The learned Chairman, therefore, dismissed the application "not only on legal grounds, but also on its own merits". In conclusion, the learned Chairman directed the respondent to dispose of the appeal of the appellant expeditiously.
5. The question, in the first place, is as to whether a Junior Clerk, who receives a salary, can be said to be a workman within the definition given under section 2(u) of the Ordinance. The relevant portion of the definition reads as under:- " `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 express 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-
6. It has not been challenged before me that the, appellant was given clerical work. The learned Chairman seems to have come to the conclusion that though the appellant may be doing clerical work, but he was receiving a salary and, therefore, cannot be said to be doing the work for hire. The short question .for my consideration is as to whether a Junior Clerk or a Store Keeper, who receives a salary, can be said to be performing his job for hire or reward or not. I have no doubt, considering the spirit underlying the definition of workman that a person who performs clerical work is also a workman. It is immaterial whether the remuneration that he receives for the work that he performs is called a salary on hire or reward. The words "'hire" or "reward" are wide enough to include a payment made weekly of monthly. The word `hire' is defined in Webster---s Third New International Dictionary Unabridged as "payment for the temporary payment for labour or personal means "fixed compensation paid regularly (as by the year, quarter, month, or week) for services". The word `hire', as would appear from the dictionary meaning is wide enough to include the salary, which is paid to a clerk for his personal services. If a narrow interpretation, as has been put by the learned Court, is given then many of the workmen, who do technical work or perform manual labour on monthly salary, will be excluded from the definition of workman. Moreover, if such a narrow definition is accepted, it would be easy for the Manage--ment to pay to its workmen every month instead of paying them every week, so that the payment may be called a salary to avoid the application of Industrial Disputes Ordinance. I would hold that the word `hire' is wide enough to include the payment made in the shape of salary to a person performing to clerical work.
7: I would now proceed to consider the conclusion of the learned Court on merits. It runs as under:- "The complainant has also failed to establish the fact that in the present case the respondent-has altered the conditions of his service to the complainant's prejudice. As a matter of fact, it is abundantly clear from the material on the relevant record that the services of the complainant were terminated on 27-11-67, in consequence of the abolition of certain posts. The complainant was paid his salary for one month in lieu of a prior notice. Furthermore, the complainant himself accepted a fresh offer of appointment from the respondent as a Store Keeper with effect from 17- 3-1967. On the date 22-3-1968, the respondent even offered a post of Store Keeper to the complainant, which the complainant is free to accept."
8. The first question is as to whether certain posts of Store Keepers in the Headquarters were abolished or not. For the purposes of this appeal, it is not necessary to go into the question as to whether certain posts of Store Keepers were abolished or not. The appellant, contends that even of the posts of Store Keepers, were Abolished, he should have been appointed as an Assistant Store Keeper is place of the junior-most Assistant Store Keeper: He has a right to that as would appear from Standing Order 13, to the Schedule of the Industrial, and Commercial Employment (Standing Orders). Ordinance1968. It runs as under:---- "Where any workman is to be retrenched and he -belongs to a particular category of workman, the employer shall retrench the workman who is the last person employed in that category."
9. At the time when the appellant was removed from service, he was in the category of Store Keeper. If any post .of Store Keeper was abolished, he should have been sent back as Assistant Store Keeper. There is nothing before me on the record that he was the junior-most man even in the category of Assistant Store Keepers and, therefore, he could not be accommodated. The appellant, on the face of it, was entitled to be accommodated as Assistant Store Keeper, if he was not the junior-most Assistant Store Keeper. Even if the appellant had accepted the pay of one month in lieu of notice terminating his services on 17th February 1967, it would not amount to estoppel him by conduct so far as the application under section 38 of the Ordinance is concerned.
He had filed an appeal against the order terminating his ---services on 17th February 1967.
Admittedly, the appeal has not yet been disposed of. At any rate, the appellant was re-instated on 17 March 1967, and therefore, the fact that he accepted one month's pay in lieu of termination of his services, would have no force. Similarly, the fact that the appellant accepted a fresh appointment on 17th March 1967, during the pendency of his appeal would have no effect on his application under section 38 of the Ordi--nance. The fact that the appellant had been offered a fresh appointment on 22nd March 1968, would not debar the appellant from pursuing his remedy under section 38 of the Ordinance, if he in, so entitled.
10. For the reasons given above, I would allow the appeal and would order the respondent- Corporation to appoint the appellant as Assistant Store Keeper, if he was not the junior --most Assistant Store Keeper on 27th November 1967. The appellant having been promoted as Assistant - Store Keeper from the post of a Junior Clerk and then as Store Keeper, clearly belongs to a particular category, namely, Store Keeper.