1. ' KHILJI ARIF HUSSAIN, J.---In order to appreciate the question involved in the petition, we would like to give brief facts of the case. The petitioner, a company registered under the Companies Ordinance, 1984, engaged in the business of manufacturing Urea Fertilizer, manufactured Urea used to be filled in bags from machines, thereafter the same were to be stitched through machines and then loaded to the trawlers, trucks, wagons, etc, through mechanical process and by using forklifts. The case of the petitioners was that for execution of work of bagging and loading Urea and its connected activities, they entered into contracts with independent contractors from time to time and respondents, who used to be engaged by the said contractors, were not the employees of the petitioners company. It appears that on 22-2-1992, when the petitioners factory reopened after usual repairs, petitioners refused to take on duty 193 workers/respondents out of 362.
2. Aggrieved by the removal from the service, the respondents served grievance notice under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as "I.R.O.") and since the petitioners did not respond the same, respondents filed application before the VIIthLabour Court at Sukkur.
3. ' The petitioners filed a reply statement and denied relationship of employer and employee between the parties. In the reply statement it was stated that the respondents were not the employees of the petitioners and they might have been engaged by contractors to whom work for loading, cleaning, stitching and bagging was awarded at specified rate and for a specified period of time. It was contended that the respondents were not allowed to enter the factory as the contract with their employer `Workmen's Association' had been terminated. On behalf of the respondents, respondents Jawaid Ali Shah and Abdul Haq filed their respective affidavits-in- evidence and were cross-examined by the respective parties. On behalf of the petitioner one RiazHussain, Senior Manager appeared.
4. After- hearing the parties, Sindh Labour Court No,VII, respondent No,2, held that respondents are the employees of the petitioners and ordered their reinstatement in service with full back benefits.
5. Aggrieved by the said order, the petitioners filed appeal before respondent No,1, who vide order dated 6-5-1996, maintained the order of respondent No,2 and dismissed the appeal, which orders are questioned in this petition.
6. ' Mr. Abdul MujeebPirzada, learned counsel for the petitioners, vehemently argued that there is no relationship of employer and employee between the petitioners and the respondents and both Courts have committed error of law in holding such relationship. Learned counsel further contended that the respondents did not produce any appointment letter or any other document in order to show that they were engaged by the petitioners and in the absence of such evidence the findings given by respondents Nos.1 and 2 about the relationship of employer and employee was based on no evidence. He further contended that loading and bagging fertilizer is not part of manufacturing process of fertilizer and the same was given on contract to independent contractors, who had engaged the respondents. Learned counsel further argued that respondent No,1 committed serious error of law in dismissing the appeal of the petitioners in limine when such appeal has been filed by the petitioners as matter of right.
7. ' In reply Mr. ShahenshahHussain and Mr. ShafiqueQureshi, learned advocates for the respondents, argued that the contractors appointed by the petitioners were supposed to supply workers to the petitioners company and the respondents for all practical purposes performed their duties under the control and supervision of the petitioners' supervisor. Learned counsel contended that the respondents were performing their duties in the area of Urea Handling Plant where manufactured Urea was filled in 50 Kg bags from machines and then bags were stitched, through machines and were subsequently loaded on trawlers, trucks, wagons, etc. In the said process of filling, lining, bagging and loading is one of the important functions of the petitioners' company and part and parcel of manufacturing process. Respondents performed their duties under the direct control and supervision of petitioners' officers and device of the contractors was created to deprive the respondents of their legitimate rights and to benefit persons of their choice at the cost of petitioners-company owned by the Federal Government. Learned counsel in support of their contentions relied upon the case of The Punjab Religious Book Society v. Mst. Amanat (1974 SCM R 269) and M/s. Dawood Cotton Mills Ltd v. Sindh Labour Appellate Tribunal and others (2004 PLC 348).
8. ' We would like to first deal with the contention of Mr. Abdul MujeebPirzada, learned counsel for the petitioners, that bagging, stitching and loading of the fertilizers manufactured in the petitioners' company cannot come within the definition of manufacture. One of the applicants Jawed Ali Shah filed affidavit-in-evidence, wherein he has categorically stated that he was employed in the factory premises owned and run by the petitioners. It was further alleged that the petitioners are the manufactures of urea through chemical process and his job was to clean the machines belonging to the petitioners and he also used to putand collect the torn urea bags to insert the liner into polythene bags, to remove goods from the stores, put them to the places where they were needed and that his jobs were connected with the manufacturing process of the urea. It was further stated that urea comes directly in the bagging department, then it was filled in through the machines into the bags and the bags were stitched by the machines. After stitching the urea bags they were loaded on trucks, wagons, trawlers, etc. For various destinations under the directions of the Marketing Department of the petitioners. All the bagging, putting liner into polythene bags, stitching is connected with the part of manufacturing of the urea. The petitioner cross-examined the said witness, but nowhere in his cross examination it was suggested that the work performed by the respondents was not connected with the manufacturing of the urea.
9. ' One Abdul Haq also filed affidavit-in-evidence and while reiterating what was stated by Jawed Ali Shah in his affidait-in-evidence further stated that everyday about 1800 ton of urea was produced and was packed and bagged and also loaded for transportation to various destinations by the petitioners company. The witness stated in his affidavit-in-evidence also stated that incharge of bagging stitching, cleaning, lining, loading was Mr. Malan and there were many supervisors, clerks and assistants, who were working under him, who took work from the respondents and used to guide the respondents what to do, how to do and where to do. The witness further stated in his affidavit-in-evidence that all the respondents used to work under their supervision, control and management. During cross-examination of the. Said witness this part of averments has not been questioned, which tantamount to admission on the part of the petitioners that nature of the duty performed by the respondents was part and parcel of manufacturing process of urea and are at least part and parcel of the job undertaken by the petitioners company for marketing its products and that they used to work under the direct control of petitioners' supervision. The petitioners' witness has admitted that Mr. Malan was an employee of the company.
10. ' Coming to the question that there was no relationship of employer and employee between the petitioners and the respondents. Learned counsel for the petitioners vehemently argued that no written appointment letter has been produced by the respondents that the petitioners had appointed them nor any evidence has been placed on record to establish that the petitioners had paid any wages to the respondents. It was further argued that the petitioners have entered into an agreement of settlement with the contractors and accordingly respondents cannot be termed as the workmen of the Petitioners Company.
11. ' We have taken into consideration arguments advanced by the learned counsel for the petitioners.
12. The prime question, which requires consideration, is whether the device of engagement of the respondents through a contractor in respect of the work connected with the manufacturing of the urea disentitled the respondents from their legitimate rights under the labour law. Before dealing with the said question, we would like to mention here that the respondents were doing their jobs in the petitioners' factory for the last 10 years continuously and during this'period of time it appears that the petitioners have granted contracts to various contactors in respect of the work performed by the respondents. As we have held hereinabove that there is a direct nexus between the work performed by the respondents and manufacturing of the urea in the petitioners factory it cannot be said that the contractor was engaged or doing some work independent to the goods manufactured by the petitioners in its factory. To understand the position we would like to illustrate that a pharmaceutical company manufacturing drugs in its factory gets them packed and then for the purpose of selling the same awards agency agreement to someone, who, in turn, granted sub- agency agreements to different parties, the workmen engaged by an agency or sub-agency cannot claim that they are the workmen of the pharmaceutical company because there was no nexus between the goods manufactured in the pharmaceutical company and distribution and sale of it by the agency or sub-agency. In the instant case, however, filling of the urea in the bags, putting liner in it, stitching the same, loading it in the trucks cannot be termed that they are not connected with the manufacturing process. Under the Factories Act packing has been clearly defined as part of the manufacturing process.
13. ' Sections 2(viii), 2(ix) and 2(xxviii) of Industrial Relations Ordinance define employer, establishment, workers and workman, which read as under:--
2. Definitions.---In this Ordinance, unless there is anything repugnant in the subject or context-
(i) to (vii)
(viii) "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) an heir, successor or assign as the case may be, of such person or body as aforesaid;
(b) any person responsible for the management, supervision and control of the establishment;
(c) In relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) in relation of an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority,Special Provision---For the purpose of distinction from the category of "worker of workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within this category of employers.
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof.
(ix) "Establishment" means any office, firm, industrial unit, undertaking, shop or premises I which workmen are employed for the purpose of carrying on any industry; and, except in section 22EE includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments.
14. (xxviii) "Worker" and "workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in any establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off, or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person.
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisor capacity draws wages exceeding rupees eight hundred 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 managerial nature.
15. ' From reading the above sections, it appears that any person not falling within the definition of employer and who is an employee in an establishment/industry either directly or through contractor where the terms of employment be expressed or implied falls under the definition of workman. Definition of the "workman" under section 2(h) of the Factory Act, 1934 was amended by Act XVI of 1975 and word "workman" implied directly or through an agency is also included in the definition of the worker. The definition of worker in the Factory Act, 1934 further provided that a person employed in a manufacturing process or in cleaning any part of the machinery or premises used for manufacturing process or in any other kind of work whatsoever incidental or connected with the subject of manufacturing process is workman. Employer has been defined under Industrial Commercial Employment (Standing Orders) Ordinance, 1968 as owner of industry or commercial establishment. Section 2(f) of the Ordinance 1968 further provided that Industrial Establishment includes Establishment of Contractors who directly or indirectly employed workmen in connection with execution of contract to which he is a party includes premises where process connected with the said execution is carried on.
16. It is not disputed by either of the parties that the respondents though engaged by the contractors, were discharging their duties within the premises of the petitioners' factory under the direct control and supervision of the petitioners' employees. We are conscious of the pronouncement of the Hon'ble Supreme Court in the case of Munir Ahmed v. The State (1985 SCM R 257) and Fareed Ahmed v. Pakistan Barmah Shell Ltd. (1987 SCM R 1463). The said pronouncements of Hon'ble Supreme Court have been considered in the case of M/s. Dawood Cotton Mills Ltd. v. Sindh Labour Appellant Tribunal and others (SBLR 2004 Sindh 614) in which one of us, namely, Sabihuddin Ahmed, J., was a member, held the worker engaged by the, contractor was required to work; in the weaving department upon machinery belonged to mills/owner, controlled by the weaving master as an employee of the establishment. It was for the establishment to establish that it had entrusted or awarded a particular work not connected with the manufacturing process to an independent contractor, who had been authorized to engage his own labour force as may be required by him and to supervise them for the purpose of completion of the work awarded to him. In that case one could say that relationship of employer andemployee will be between the contractor and worker.
17. From the letter dated 28-1-1989, addressed by the petitioner to his contractor, it appears that the contract awarded to the contractor was for providing the labour force to the petitioner company for its bagging and shipping sections and the petitioner undertook to reimburse the contractor's actual wage bill paid by him to workers on submission of wage bill to the petitioner company along with 80% of the said wage bill to meet other labour laws liabilities including insurance, compensation under Workmen Compensation Act and. Medical Facilities, etc. The said letter clearly establishes that the purpose of hiring the services of the contractor was to provide manpower for a particular section of the petitioner's factory and it cannot be said that the contractor was engaged to perform some independent work not connected with the manufacturing process carried out in the petitioner factory.
18. ' For the foregoing reasons the petition has no merits and is accordingly dismissed. These are the reasons of our short order dated 16-3-2005.