The petitioner's Textile Mills, had closed down one of the three shifts, in Weaving Department, because of slump resulting in losses. The respon--dent No. 3 was working as shift incharge.
Number of workers including respondent No. 3 were retrenched.
2. The case of respondent No. 3 was that he was appointed directly as shift incharge on 12-10-1970.
The two other shifts incharge were promoted as such from junior ranks subsequently. As such one of them ought to have been retrenched. That the act of retrenchment of his services was therefore against section 3 of Standing Orders Ordinance, viz. Last come first go, or that the junior most worker to be retrenched first.
3. Mr. Muhammad Ali Sayeed has contended that respondent No. 3 does not come under the definition of 'workman' since his duties were of manager. Mr. Muhammad Ali Saeed has then stated that by now the remaining two shifts in the Weaving Department have also been closed down. So the question of priorities, if any, would not arise. However, the entitlement of the respondent up to the stage of closing down of the remaining two shifts would still have to be considered.
4. Workman is defined under section 2(i) of Standing Order Ordinance, 1968 as any person employed in any industrial or commercial establishment, to do any skilled or unskilled manual or clerical work, for hire or reward. The word 'employer' on the other hand means (Z-C) owner of an Industrial or Commercial Establishment and includes a manager of the factory.
5. Mr. Muhammad Ali Saeed has argued that the work of the respon--dent was to supervise the work of 50 workers. He could grant the leave, recommend their promotion, make reports for charge-sheeting them and so on.
6. The term 'employer' includes a manager. Though the term manager bas not been separately defined his duties would be of management as against the term labour. Under section 2-C(iii) any person responsible to the owner of supervision and control of any Industrial establishment would be a manager. But it would be clear from this definition that no other person should intervene between him and the owner. If the owner of a limited company would be the Directors or the shareholders then the respondent should be answerable for his work to them and not to another manager. But that is admittedly not the case here. The respondent is merely a shift incharge working under assistant weaving master or a weaving master. There would be a heirarchy of executives above the weaving master and under the owner. The respondent could not therefore be regarded as a manager. Nor could it be said that a shift incharge had the power to control the establishment.
7. Mr. Muhammad Ali Sayeed has quoted 1971 PLC to show the requisites essential for the term 'workman', vie. (i) He must be employed for hire or reward, (ii) He must do skilled or unskilled work and (iii) He must be employed in industrial concern. A Foreman was regarded as a person doing supervision or managerial work and he was not therefore a workman as decided by the Supreme Court. Mr. Sayeed has then referred to PLD 1978 Kar. 649. In that Division Bench decision, it was observed that "Employer" included a person incharge of part of establishment. It was accordingly held that Petitioner was not a workman as defined in the Standing Orders Ordinance and therefore not entitled to its benefits even though he was incharge of only a part of the establishment.
Whether a person would come within the definition of Employer or Workman, i.e. Manager or Labourer, would depend on the nature of functions he has to perform.
8. In the present case the respondent no doubt supervised the work of 50 workmen of the shift. He recommended leave, promotion, confirmation, etc. And reported a worker for disciplinary action.
But he worked under the Weaving Master. It could not be said that he controlled even a section or Department of Industrial concern or establishment.
9. Mr. Muhammad Ali Sayeed has then argued that definition of workmen in the Standing Orders Ordinance will be applicable in this case and not the one found in Industrial Relations Ordinance because the right claimed under section 25-A of Industrial Relations Ordinance is that granted under Standing Order Ordinance. Industrial Relations Ordinance introduces the concept of maximum wages of worker. The person employed in supervising capacity must draw wages exceeding Rs. 1,000, per month. In that case alone he would not come within the definition of worker. The respon--dent in the present case was drawing wages of 525 rupees per month. So he could not assume the role of an employer. This amendment fixing limit of Rs. 1,000, came prior to this case and would be applicable. The definition of worker under section 2(xxviii) of Industrial Relations Ordinance being the latest definition and more comprehensive cannot be ignored and preference given to the earlier enactment. Mr. Muhammad Ali Sayeed has again explained in the decision in PLD 1.974 Kar. 252 that definition in Standing Orders Ordinance is the one applicable.
However, even under that definition a shift incharge could not be considered to be an employer.
Reference has been made to a decision PLD 1975 Kar. 279 that salesman was not a worker within the meaning of Standing Order Ordinance because of the nature of duties performed by him. A reference has then been made to a decision of this Court in Constitutional Petition No. 888/1975 wherein it was pointed out that section 25-A of Industrial Relations Ordinance only merely provides a forum for the rights secured under any other law. A Division Bench decision in PLD 1975 Pesh. 240 is also on the same point. But 1977 SCMR 103 is the latest case on the same issue: In that decision preference was given to the definition of workman and Employee as in the Industrial Relations Ordinance. In that case too the right under section 25-A of Standing Order Ordinance was involved.
There is no other decision to the contrary after that case. The Legislature could not have intended to maintain two separate concepts of worker and employer, one under the Standing Orders Ordinance and the other under the Industrial Relations Ordinance. It has been argued that nothing prevented the authorities from effecting amendment in the definition occurring in Standing Orders Ordinance. But the omission may have been unintentional. It does not stand to reason that for securing the rights of the worker, the definition would be narrower and for enabling labour union activities and participation in them the definition would be wider so as to include workers having supervisory duties also.
10. Mr. Muhammad Ali Sayeed has then argued that even if the definition of worker under Industrial Relations Ordinance is to prevail, the respondent will not come under that definition. But if any person does not fall within the definition of 'Employer' then he is to be regarded as a 'workman' and vice versa. There is no third category of persons engaged in industrial concerns or establishments.
According to Mr. Muhammad Ali Sayeed the nature of duties of respondent is such that respondent can only be regarded as employer rather than a workman. But a shift incharge is no better than a mere supervisor of labourers specially when he draws a meagre salary of Rs. 525 permonth. He does not enjoy managerial or administrative capacity. Merely because the respondent recommended leave or disciplinary action would not change the essential character of his job as supervisor. The salary criterion would therefore remain applicable to his case.
11. Mr. Saghir Hussain for the respondent while replying to the argu--ments of Mr. Muhammad Ali Sayeed has further painted out that by the very order of appointment, the respondent was required to do any job including the manual job of a worker. He has then stated that though he was appointed by managing director, his services were terminated by the assistant manager. That even otherwise when there were two person in the same category junior to him, he could not have been discharged as surplus. That after he was, retrenched, one Zardar Khan was recruited for the same job.
12. Since the respondent as shift-incharge came within the definition of a worker, as mentioned in the Industrial Relations Ordinance and sin he had been retrenched in violation of the rule, last come first go, he ha rightly been ordered to be re-instated in service by the IVth Senior Labour Court under the impugned order. In case all the persons working in the Weaving Department have now to be retrenched, the respondent may no have to face a similar problem. But that will not affect his rights during the intervening period.
13. This Constitutional Petition is accordingly dismissed.