This grievance application under Section 25-A of the IRO, 1969 is filed by the applicant above named praying therein for his reinstatement in the service of the respondent company with all consequential benefits for the period of his forced unemployment.
2. Briefly, the case of applicant is that he remained in employment of the respondent company permanently for nearly one year as driver and lifter operator/driver. That during the course of his employment, signatures and thumb-impression of the applicant were obtained by the management fraudulently and that no letter of appointment was given to the applicant so also no other employment document. That bogus papers in the name of nonexistent person were issued such as Ali Raza & Co. etc. although the applicant worked for respondent company in the factory of respondent where all machinery and installations were of respondent and also under their supervision as such the respondent is responsible for observance of the Standing Orders Ordinance, 1968.
3. That on 16.5.1998 when the applicant reported for duty he met with an accident inside the factory during the course of performance of his work, however when he reported back on duty on 28.5.1998, was not allowed to resume duty on false pretext and since then constantly reported for duty but not allowed to rejoin to his work. That the applicant addressed a representation to the respondent by registered post on 10.8.1998 at both the addresses given in the title, where it was delivered but no reply was received. The applicant alleged his termination as illegal, malafide and verbal one and prayed for his reinstatement.
4. The respondents filed reply statement and also raised legal objections that applicant was employed by an independent contractor Ms. Shabbir Ali Services, that the applicant failed to give grievance notice to his employer, contractor, that the case is time barred as the applicant himself stopped attending duty w.e.f. 18.5.1998 as such the present grievance application is not maintainable and liable to be dismissed.
5. The respondents, in their reply statement, have stated that their company has its regular employees of various categories who are issued letters of appointment etc. by the company.
Besides this the respondent have contacted out some jobs to independent contractors who employed their own workers. That on receipt of applicant's grievance notice, the respondents checked from the contractors and Ms. Shabbir Ali Services confirmed that applicant was its employee employed as temporary fork lifter driver but since 18.5.1998 the applicant stopped attending his duty. The said contractor also confirmed that no accident took place on 16.5.1998.
That the contractor used to send the bills for work done by him and the respondents pay him his dues as per written contract. That the allegations of taking signature or thumb impressions of applicant were denied by respondents alongwith other allegations leveled by applicant and stated that the applicant has made a false story of accident. The respondents further denied that they are violating the provisions of Standing Orders Ordinance or any law. The respondent stated that they receive grievance notice dated 10.8.1998 and replied the same vide letter dated 24.8.1998. The respondents prayed for dismissed of grievance petition.
6. The applicant filed his affidavit in evidence and was cross-examined by learned counsel for the respondent. From respondent side Naeem Ilyas filed his affidavit in evidence and was cross- examined by learned counsel for applicant. Statement of Kazim Ali, G.M. was also recorded in Court and he was cross-examined by respondent's counsel.
7. On pleadings of the parties, points for determination are as under:--
1. Whether the applicant was an employee of the respondent?
2. Whether the applicant has been terminated from service illegally?
3. What should the order be?
8. I have heard the learned counsels for the parties at length. Perused the record & proceeding.
Parties counsels have also filed their respective written arguments. My findings on the above points with reasons thereof, are as under:--
9. Point No, 1 The applicant in is pleading has stated that he remained in the permanent employment of respondent for nearly one year as driver and lifter operator. That no letter of appointment was given to him nor any other document was provided by the respondent and that bogus papers in the name of non-existent persons were issued such as Ali Raza Jamil A & company, Ali Raza Yaqoob & company and Shabbir Ali Services although the applicant worked in respondent inside the factory.
10. The contention of the respondent on the above point is that, the applicant was employed by an independent contractor Ms. Shabbir Ali Services and not by respondent and the case of applicant against respondent is not maintainable. The respondents further explained that on receipt of grievance notice of applicant, the respondent checked from the contractors and the contractor Ms. Shabbir Ali Services confirmed that the applicant was employed by them as temporary Fork Lifter driver.
11. The applicant was cross-examined by learned counsel for the respondent. During his cross- examination he stated that the respondent company is a new company and that when he joined respondent's company, the building of the company was fully ready. He showed his ignorance that respondent company had given various works on the contract basis during the construction stage.
He made a statement that when he joined the respondent company, the production was on. He denied that till November, 1997 the construction work and installation of machines was being done in the factory premises and no any worker was appointed by that time. It is not in his knowledge that respondent company had provided some vehicles to the contractors and that respondent factory was registered under the Factories Act in the month of July 1997. He denied that he was employee of Shabbir Ali Services, the contractor and they have not been made party to the present proceedings knowingly. He stated that he has produced original medical certificate alongwith his affidavit in evidence at AW/1(a) and denied that this medical certificate is bogus document. He stated that he had given he originals of prescriptions and bills, annexures AW/1(b) to AW/1(e) to Mr. Bukhari, the transport officer. He denied that the above referred bills and prescriptions are bogus and not handed over to anybody.
12.During further cross-examination, the applicant was confronted with annexures R/31 and R/32 and produced them as exhibit 3/A and 3/B and stated that it is the same place/clinic where his transport officer had taken him for his treatment. He denied that he is stating falsely. He is not aware that any person by name Umer is sitting in the Nasir Clinic and that said Umer is the compounder or para-medical staff in Nasir Clinic. He denied that medical certificate produced by him with his affidavit in evidence as exhibit AW/1(a) bears signature of said Umer and that the same is a forged document. He further denied that medical prescriptions and bills produced by him are also forged and obtained after filing this case. The applicant admitted that his name does not find place in the copies of attendance register produced by respondent and also in the payment sheets.
13.The applicant got examined Kazim Ali, signatory of exhibit AW-1. This witness during the examination in chief, has stated that he was the General Manager in the respondent company from 1996 for about 2-1/2 years and voluntarily stated that it was construction period of the factory.
He stated that he knows the applicant who is present in Court. He was also confronted with original of annexure AW-1 annexed with the affidavit in evidence of applicant and produced the same in original as exhibit 4-A and admitted that it bears his signature. This witness was cross-examined by learned counsel for respondent. During cross-examination he has admitted that he had seen the applicant only during the construction period. He further admitted that during the construction period there were about ten contractors in the respondent factory. He stated that he is not serving in respondents company since August, 1998. He categorically. admitted that during the construction period the workers were of the contractors. He has further admitted that the respondent company had provided their vehicles to the contractors. He clearly stated that on 2.9.1997 when the certificate exhibit 4-A was issued, the applicant was the employee of the contractor. He stated that car Bearing No, CK-2875 indicated in the certificate exhibit 4-A belonged to the respondent company.
14.Respondent witness Naeem Khanani was cross examined by applicant's counsel. During the cross-examination he stated that he had issued annexure AW/1-A to Mr. Hassan &gar available in record together with affidavit in evidence. He was confronted with Photostat copy of monthly shift schedule for September, 1997 which is Photostat and stated that it can only be confirmed by him in case of original is shown to him. He was also confronted with annexure A-4 dated 30.12.1997 which is a written request but he denied it bears his signature. He was also confronted with a certificate AW/1 together with affidavit in evidence of applicant but he stated that he cannot say as to whether the applicant was in service when this certificate was issued because it has been issued by general manager and not by him. He admitted that vehicle viz. motor car mentioned in annexure AW/1 was owned by the company. He had not knowledge as to whether Mr. Bukhari took the applicant to the clinic when accident occurred on 16.5.1998. He lastly stated that the applicant was working with contractor.
15.Mr. Ashraf Hussain Rizvi, learned counsel for the applicant has argued that the applicant remained in the permanent employment of respondent for one year as driver & Lifter operator but malafidely and illegally, the respondent did not issue any appointment letter or any other document to the applicant. He has further argued that the respondents have prepared and produced bogus papers in the name of non-existent persons. He has referred the cross- examination of respondent witness Naeem Khanani as well as the evidence of Kazim Ali. Learned counsel further argued that respondent's General Manager Works had issued a certificate produced as exhibit 4/A certifying that the motor car registered with No, CK-2875 belongs to respondent company and also nominated the applicant as driver of the said vehicle and this certificate does not speak of any contractor. That the monthly shift schedules filed with the statement dated 7.5.2003, were confronted to the respondent witness who admitted his signature on these shift schedules and produced the same case exhibits 7-A and 7-B.
16.Learned counsel for the applicant has further argued that on 16.5.1998 the applicant met with an accident and got treated by the company, he has relied upon annexures AW/1(a) (medical certificate). AW/(b) & (c) (medical prescription) and cash memos annexures AW/1(d) & (e). While concluding his arguments learned counsel has relied upon SBLR 2004 (Sindh High Court) page 614, 1987 SCM R 1463, 1989 PLC Karachi 81, AIR 1974 SC 37, 1978 PLJ 397, 1990 PLC 6, 1991 908, 1965 LLC 260, 1993 PLC 937, 1995 PLC 680 and 1998 PLC 147.
17.Mr. S.M. Yaqoob, learned counsel for the respondents has argued that respondent have their regular employees who are issued letters of appointment etc. by the company, besides that the respondents have also contracted out some jobs to independent contractors who employed their own workers. That the applicant was not employed by respondent but Ms. Shabbir Ali Services contractor. The learned counsel has referred contract agreement filed with their reply statement as annexure R/3 and argued that this contract is sufficient proof that the respondent have also contracted out their work to the contractor. That the documents produced by the applicant with his affidavit in evidence to establish his relationship with respondent, are bogus ones and prepared for the purpose of this case as such documents were not annexed with the application. That even otherwise annexure AW/1(a) to AW/(e) do not show that these documents were issued at the instance or request of the respondent company. While referring the evidence and cross- examination of Kazim Ali, the learned counsel has argued that his witness has categorically admitted in his cross examination that company had provided their vehicles to the contractors and that when the certificate annexure AW/1 was issued, the applicant was the employee of the contractor. Learned counsel lastly argued that even otherwise the onus to prove this point is on the applicant, who has miserably failed to prove it. He has relied upon 1989 PLC 434, NLR 1980 Labour (Lahore) 79, 1977 PLC 447, 2002 Tr.C. Labour 323, 1991 PLC 908 and 1980 PLC 888.
18.I have given my anxious consideration to the arguments of learned counsels for the parties in the light of citations relied upon by them.
19.Initially the burden is upon the applicant to prove that he was employee/worker of the respondent. The applicant who is claiming himself to be the lifter operator and driver of the respondent has himself clarified in his pleadings that neither any appointment letter was given to him by the respondent nor any other document is provided to him in respect of his job by the respondent. The applicant has not produced any document to establish his employment with the respondent as workman. The only certificate, is exhibit 4/A of the respondent certifying that the applicant is a driver of a vehicle of the respondent company.
20.The respondent has denied the relationship of the applicant with them. The contention raised by the respondent is that at the relevant time the company was under construction and they engaged contractors for the completion of work and installation of machinery and that after service of grievance notice of applicant, they enquired from the contractors and Ms. Shabbir Ali Services vide annexure R/1 and R/2 informed that the applicant was their temporary employee and further that the applicant lastly attended his duties on 16.5.1998 and thereafter did not turn up. The respondents have also produced the contact/agreement with Ms. Shabbir Ali Services as annexure R/3 and also produced cash memos and payment slips showing the payment to the contractors as annexure R/4 to R/12. The respondents have also produced extracts/documents as annexure R/15 to R/30 in respect of their contention regarding registration of company, commencement of commercial production, extracts of Excise & Taxation having details of registration of Motor wing, notes from accounts for the year ended on 30th June 1998, showing date of commencement of commercial production for the factory, list and attendance registrar of the workers from July 1997 to June 1998, salary details of the workers for the same period.
21.The applicant has also filed together with his affidavit in evidence medical certificate prescription and cash memos as annexures AW-1/1(a) to AW-1/1(d) and contended that he met with an accident inside the factory and remained ill and when he came to resume his duties he was not allowed by the respondent.
22.The respondent confronted photographs during the Cross-examination upon applicant and produced the same as exhibit R/31 and R/32 and has produced together with affidavit in evidence reminder for report to the Assistant Registrar, Pakistan Medical and Dental Council, Islamabad as annexure R/33 and reply of the same as annexure R/33, two more photographs as annexure R/36 And R/37 and medical certificate as annexure R/38. All the photographs pertaining to a medical center exposing the name of the doctor.
23.The respondents contended that the clinic which issued the medical certificate is run by a dispenser and can issue any bogus certificate to any person and that respondents have also. obtained a bogus certificate which a bogus name and that the certificate produced by the applicant has not been affirmed to be genuine by the Pakistan Medical Council.
24.The medical certificate exhibit AW/1-A shows that the applicant was suffering from Angina whereas the applicant's contention was that he met with an accident inside the factory premises.
The particulars of accident have not been disclosed anywhere by the applicant in his pleadings or through evidence nor the medical certificate finds support of his contention of accident.
Furthermore, even the spelling of Angina is not correctly recorded in the said disputed certificate, which on the face of it, does not seem to be genuine. Further the certificate exhibit AW/1-A does not bear the registration number issued by the Pakistan Medical & Dental Council, Islamabad and above all inconsistent with the pleadings of the applicant. So the said medical certificate produced by the applicant does not support the applicant on the point under consideration regarding relationship with the respondent.
25.The contention of the respondent is that the alleged period of employment of applicant was when the company was under construction and the installation work was being done in the factor' premises.
26.The applicant, during cross-examination, has admitted that the company was a new one at the relevant time. He showed his ignorance that respondent company had given various work on the contract basis to the contractor. The applicant insisted that when he joined the company the production was on and specifically denied that till November, 1997 the installation work and construction was being done in the factory premises. He did not have knowledge that the company was registered in the month of July 1997. He denied that he was employee of Ms. Shabbir Ali Services.
27.The respondents have not denied the issuance of certificate, exhibit 4/A. On application of the applicant, Mr. Kazim Ali was cross examined who stated that he was General Manager for the respondent company from 1997 for about 2 and half years during the construction period of the factory. This witness has produced certificate in original as exhibit 4/A admitting his signature on it and also admitted that he had seen the applicant during the construction period of the factory. He stated that during the construction period there were about 10 contractors in respondent factory.
He admitted that during construction period the respondent company has provided vehicle to the contractors and that on 2.9.1997 when the certificate exhibit 4/A was issued, the applicant was employee of the contractor. He has not disputed the car indicated in the certificate belong to the respondent company. This witness Kazim Ali was also cross examined by the learned counsel for the applicant and denied that whatever he has disclosed in the cross examination is incorrect and at the instance of the respondent company.
28.Exhibit 4/A the exclusive document produced by the applicant through Kazim Ali in respect of the issue under consideration, is to the effect that car Bearing No, CK-2875, Engine No, T-727576, Chassis No, 844097, Model 199.7 belongs to respondent company and the applicant is nominated as driver of the said vehicle.
29.Mr. S. M. Yaqoob, learned counsel for the respondent has argued that during the relevant period, due to law and order situation in the city, to protect the vehicle and driver during checking by the police, such letter/certificate exhibit 4/A was issued at the request of the applicant for the above stated reason. Mr. Ashraf Hussain Rizvi, learned counsel for applicant has vehemently denied the above contention and argued that the said certificate proves the applicant to be the worker/employee of the respondent company as driver.
30.It would be appropriate to point out here that the applicant himself in his affidavit in evidence at para 3 stated that the authority letter was issued to him by Kazim Ali so that he may not be harassed by police. This authority letter exhibit 4/A is issued in the month of September, 1997 while sale certificate annexure R/18 is dated 29.8.1997, Registration certificate annexure R/19 is dated 3.9.1997 and claim of the applicant is that he was appointed on or about May 1997. The above time period 'shows that the vehicle was purchased and registered in September, 1997 and exhibit 4/A is issued in September 1997 and if this letter is exclusive proof as averred by the then Manager, where the applicant was working and OD which and whose vehicle prior to September 1997, the same has not been explained and clarified by the applicant. The letter exhibit 4/A issued by the owner at the instance of the applicant and admittedly so that the police may not make harassment.
31. The version of the witness Kazim All that vehicle was provided by the respondent Company to the contractor is not rebutted. The testimony of witness Kazim Ali is not shattered which is to the effect that the applicant was employee of Shabbir Ali Services-contractor, during the installation period.
32. Though the relevant period of construction of the factory was denied by the applicant in cross- examination and at some place the applicant showed his ignorance about the registration of the factory at the suggested time however, annexure R/15 shows that on 21.7.1997 request for registration of the factory was made by the respondent to the Inspector of Factories, Directorate of Labour.
33.Annexure R/25 are notes of chartered accountant for the year ended on June 30th. 1998 showing the company commenced commercial operation from may 1st 1998. The applicant has not been able to prove these documents to be bogus or manipulated while on the other hand, the company/respondent established that prior to may 1st, 1998, the company of respondent was not doing any commercial activity.
34.Mr. Ashraf Hussain Rizvi, learned counsel for applicant in continuation of his arguments on the above point, made reliance on certificate of one Hassan Baqar and argued that this person was a permanent employee of respondent during 5.1.1998 to 22.10.1998 therefore respondent's contention that prior to May 1998 no worker was permanent, is incorrect. Annexure AW/1/A the above certificate, was filed together with affidavit in evidence of Hassan Baqar from applicant's side but the said witness was dropped vide order dated 22.7.2002 on statement from applicant side. The said certificate, therefore, therefore, is not produced by any witness as such has no evidentiary value. Even otherwise, service certificate of one Hassan Baqar shows that he was warehouse clerk during the above stated period.
35.The applicant, right from his pleadings, has been alleging that the respondent had been issuing the fraudulent and bogus papers in the name of non-existent persons such as Ali Raza and Company and Shabbir Ali Services, although the applicant worked in the respondent establishment inside the factory. The same allegation is also contained in para 2 and 8 of affidavit- in-evidence of applicant but in cross-examination, inconsistent to his pleading, the applicant stated that "I do not know any contractor by name as Ms. Dawood Khamisa, Ms. Ali Raza or Shabbir Ali Services."
36.The respondent has produced agreement/contract with Shabbir Ali Services as annexure R/3 and debit vouchers as annexure R/6, R/9 and R/12, showing transaction between the respondent and the above contractor namely Shabbir Ali Services. The applicant has not been able to prove these documents to be bogus or fraudulent. These documents show transaction of million of rupees not only in cash but through cheque also.
37.One more point was also raised by the learned counsel for the applicant, that contract/agreement annexure R/3 is not renewed. The commencing date of the agreement is 1st November, 1997 for a period of 8 months, which is the same period involved in the point under consideration.
38.Much emphasis is laid down by Mr. Ashraf Hussain Rizvi, the learned counsel for the applicant that execution of alleged contract is dated 12.11.1997 w.e.f. 1.11.1997 (exhibit 4-A) and that applicant has pleaded in para 1 and 6 of his main application and affidavit in evidence that he remained permanent employee of respondent company for nearly one year upto 16.5.1998 and the applicant had already completed about six months employment, thus had attained the status of permanent workman. In the same continuation it has been further argued that no agreement with contractor is produced by the respondent prior to November 1997.
39.As mentioned hereinabove, the above pleadings and contention in affidavit in evidence is rebutted by the respondent through reply statement and through cross examination that the applicant was not their employee. Burden was upon the applicant to establish that he was employee of the respondent which, as discussed hereinabove, the applicant failed to establish. The contention that applicant remained in employment for about 6 months prior to agreement and have attained the status of present worker is not established in view of the constant denial of the respondent and in absence of the applicant's any positive evidence. The agreement is to the effect that Ms. Shabbir Ali Services were providing Labour to the respondent and so far its genuineness is concerned, the respondent has also produced payment vouchers having concern with Ms. Shabbir Ali Services.
39. The assertion that no agreement prior to November, 1997 was produced by the respondent company, does not establish the appointment of the applicant with the respondent as burden to prove that the applicant was a permanent employee of respondent, squarely lies upon the applicant.
40.Permanent worker defined in standing order 1(b) of the Standing Orders Ordinance, 1968 is reproduced as under: "A permanent workman is a workman who has been engaged on work of permanent nature likely to last more than -nine months and has satisfactorily competed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, and includes a Badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months, including breaks due to sickness, accident, leave, lock out, strike (not being an illegal lock out or strike) or, involuntary closure of the establishment and includes a badly who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months."
41.The law provides that if the employee or worker remained in employment of an establishment for the above defined period, then he would attain the status of permanent worker and then the provision of labour laws would be applicable, which, in the instant case is not established and proved by the applicant.
42.Authority letter exhibit 4-A is of September, 1997 issued just two months ago from the agreement and indicates that the applicant was nominated only to drive the car. This document does not show that this is issued as appointment letter in view of the admission of the applicant that document is issued at his request to save himself from harassment of police.
43.The applicant has admitted in evidence that except certificate exhibit 4-A, he has not produced any other document from the respondent company in his name and has also admitted that his name does not find placed in the attendance register sheets of the respondent company.
He himself further failed to bring on record any request or letter for his appointment though he has been claiming to be permanent employee of the respondent for about one year. According to himself, he allegedly met with an accident, but he did not avail any facilities etc. from the Social Security Institution. Had he been attained the status of worker, then it would have been much prior to May, 1998 but no facility was claimed by him which is provided under the law, at least to show relationship with the respondent.
44.The learned counsel has relied upon 1995 PLC 680 (Ms. Al-Karam Textile Mills versus Muhammad Jamal and others) which is a case of about 11 workers who were working in Al-Karam Textile Mills in the weaving department, their services were procured through contractor. Weaving Master of the employer was Incharge of the unit and responsible for supply of raw material and other services like electricity, water, gas, telephone, etc. The contractor who only supplied labour and was not responsible for profit and loss and it was held that employer when was responsible for observance of standing order 20 of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. The above quoted citation is distinguishable from the present case due to different circumstances and facts as the present applicant was not having any concern with the production and it is established that in the instant case there was no any production in the respondent establishment nor the applicant has been able to establish that there was any production during the relevant time.
45.1993 PLC 937 (General Secretary, Pak Saudi Fertilizer versus Pak Saudi Fertilizer Limited and others) is also relied upon by learned counsel for applicant. Pak Suadi Fertilizer Limited was an state owned industry dealing in manufacturing fertilizers having various department of bagging, loading, stitching and insertion through a contractor. The facts were that the names of the contractor having been changing during last 10 years but the same persons, same number of workers, continued to be employed in their respective departments. Dispute raised when the establishment went for privatization and allegedly managing director started victimization. The facts further disclosed of the relied citation are that the appellants filed petition before the NIRC at Karachi whereupon an ad interim order was passed by the NIRC Bench at Karachi which order was thereafter recalled. In this citation, assessment of status of a worker as an employee of the establishment or industry, has been discussed and following questions were held to be relevant: Is The work required to be performed by the workman of continuous and permanent nature and is related to the process of manufacturing before finished goods are sent into market.
Since how long the service is to be rendered and whether the payment of emoluments is made from the coffers of the company, Whether the gods when marketed bring back the sale proceeds to the treasury of the company itself, and Since how long a worker has been performing his duties and putting in the labour in connection with the manufacturing process.
46. The above cited case is also distinguishable from the instant case as standing order 20 of the Standing Orders Ordinance, 1968 was held to be applicable in view of the facts and circumstances of the cited case.
47.Placitum "C" of citation reported in 1991 PLC 908 (Resident Manager FCC versus Punjab Labour Appellate Tribunal and others) is as under: "S. 2(xxviii)--West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, S.O. 20--Employer. of Industrial and Commercial establishment would personally be held responsible for proper observation of Standing Orders, whether or not workmen of such establishment were employed through contractor."
48.In the above cited case at page 911, it was observed that as worker was employee of the Fauji Fertilizer, Hon'ble High Court of Sindh in its Constitutional jurisdiction held that as the two Courts below observed their findings that Respondent No, 2/workers were employee of FCC as such it was further held that it was not open for any interference in concurrent findings of the two Courts below.
It was further observed that standing order 20 of the Standing Orders Ordinance, 1968 is to be observed by respondent company. In the instant case, applicant has not been able to prove that he was employee of the respondent and entitled to avail benefits of Standing Order 20 of the Standing Orders Ordinance, 1968 as such this citation too, is distinguishable.
49.1991 PCL 908 (Karachi High Court) (SESSI versus Employees Premier Tobacco Industries Limited) is a case instituted by the SESSI against employer and they demanded their dues on which excuse was given by the employer that certain workers were engaged through contractor. Facts also disclosed that prior to that, establishment/employer was giving contribution on the part of the said workers as such it was held that the employer was under obligation for observance of standing order 20 of the Ordinance, 1968. This citation is also distinguishable from the present case.
50.LLJ 1978 page 379 (Supreme Court of India) is a case relied upon by learned counsel for the applicant. Relevant pars 5 at page 398 is reproduced as under: The true test, may with brevity, be indicate once again. Where a worker or group of workers labours to produce stood or services and these goods or services are for the business of another the other is, in fact, the employer. He has economic control over the workers subsistence, skill and continued employment. If he, for any reason chokes off, the worker is, virtually, lain off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contract is of no consequence when, on lifting the foil or looking at the conspectus of factors governing employment, we discern the naked truth though draped in different perfect paper arrangement, that the real employer is the management, not the immediate contractor. Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like many be resorted to when labour legislation casts welfare obligations on the real employer based on Arts. 38, 39, 42, 43 and 43-A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the Maya of legal appearances.
51. 1989 PLC 81 (SESSI versus Pakistan National Produce Company Limited) is a case in which above cited case viz. LLJ 1978 page 379 has also been discussed and this citation is also on the same footing wherein the purpose and scope of standing orders ordinance is held to be welfare of workers.
52.The case reported in SCMR 1987 Supreme Court 1463 (Farid Ahmed versus Pakistan Burma Shell Limited) relied upon by learned counsel for the applicant, is that leave to appeal was granted to consider the point whether or not the appellant was an employee of respondent and whether it was open to the Hon'ble High Court to decide such question in its Constitutional jurisdiction as it involves question of facts. The appellant was employed by the contractor at the respondent company and his services were terminated by the then contractor which was challenged by the employee in Labour Court through grievance petition, which was however dismissed on the ground that there was no privy of contract between him and the Pakistan Burma Shell/respondent.
Appellant Filed appeal before the SLAT which was accepted and the respondent filed Writ petition which was allowed by the Hon'ble High Court of Sindh. Being not satisfied the appellant tiled appeal before the Hon'ble Supreme Court of Pakistan which was planted and it was observed that since it was purely a question of jurisdiction therefore, the Hon'ble High Court was justified in deciding such question under Article 199 of the Constitution. It was held that contractor was not-only the person who had employed the appellant but also the person who had powers of hiring and tiring the employees and not only directing them what to do but also in the manner in which they render services to the customer at the petrol pump. The Hon'ble Supreme Court held that the appellant was not the employee of the respondent company but that of contractor and the appeal was dismissed.
53.Learned counsel for applicant has also retied upon 1988 PLC 147 (Labour Appellate Tribunal Sindh) (Abdul and others versus Ms. Dawood Cotton Mills Limited and others) and also retied upon decision in- its appeal reported in SBLR 2004 Sind 614 (High Court of Sindh-Karachi' Dawood Cotton Mills Limited versus Sindh Labour Appellate Tribunal and others).
54.The facts of the above referred case were that Workers filed, Petitions under Section 25-A of the IRO, 1969 against their oral termination as Weaver and the same were dismissed. The workers were employed as weaver in weaving department of Dawood Cotton Mills Limited from 1985 and those workers were not issued appointment letters, identity card tickets and gate passes. They were said to be workers of the contractor and receiving payments from the contractor but the weaving 'machines, tools, raw material were supplied by the mills and the distribution of the clothes were also clime by the mill. Mill was responsible for the quality of the clothes and the over all supervision of the production. After dismissal of the petitions from the Labour Court, the workers filed appeal before SLAT against Dawood Cotton Mills and the same were allowed. It was on observed by the Hon'ble Tribunal in para 16 at page 151 of its decision reported in 1998 PLC 147 come to the conclusion that in absence of evidence of-actual payment made to the contractor, the Hon'ble Tribunal vas inclined to believe that agreement exhibited in the case are not genuine as such order 20 and similarly order 12 of the Standing Orders. Ordinance 1968 were held to applicable.
55.SBLR 2004 (Sindh) 614 is appeal filed by Dawood Cotton Mills, in which Hon'ble High Court dismissed the petitions and upheld the decision of Hon'ble Appellate Tribunal. Placitum "A" relied upon by learned counsel for the applicant is reproduced as under: "Industrial & Commercial Employment (Standing Orders) Ordinance, 1962--Standing Order 2, thereof r/w relevant provisions under IRO, 1969--Test, whether a contractor pis an employer or he acts as a mere agent for supply work force--In the instant case, the worker was required to work in the weaving department--the machines upon which the work was performed belonged to the mills/owner, the raw material was also provided by it--weaving section was also controlled by the weaving master Genuineness of the contractor or otherwise, to be closely look into."
56.At page 618 of SBLR 2004 (Sindh) 614, Mian Munir Ahmed versus State (1985 SCM R 257) is also taken into consideration and discussed and its facts were differentiated with the case pleaded and filed by Dawood Cotton Mill's case. My lord in the same judgment in para 9 at page 618 has been pleased to observe that indeed the law declared by our own Supreme Court is binding upon us. At the same time, a careful consideration of the above precedent would show that the facts in both reported cases from our Supreme Court unmistakably showed that supervision and control over the working of the employees was exercised by the contractors, who were required to render certain services ancillary to the main functions of the company.
57.In the instance case the applicant stating himself to be a permanent worker/driver, has failed to prove that he was even appointed by the respondent. The applicant admittedly does not possess any appointment letter in his favour, there is nothing on record to show that even from the period when according to him, he attained the status of a permanent worker, he availed or even moved any application to respondent for the benefits as provided under the Standing Orders Ordinance, 1968. The applicant has come to the Court admittedly having no appointment letter. He has admitted in cross-examination that his name does not find place in the copies of attendance registers produced by respondent and also in payment sheets.
The nature of work shown by him is absolutely different as described and discussed with facts of the case of Dawood Cotton Mills. In the instant case during the relevant period, the respondent had not started production. The respondent has not only produced the contract agreement with the contractor but also the payment vouchers even through bank cheques against transaction taken place between contractor and the respondent in million of rupees, as such the citation relied upon by learned counsel for applicant is also quite distinguishable from the present case.
58.In view of discussion hereinabove, the applicant has not been able to prove that he was an employee of the respondent, as such, this point is therefore, answered in negative.
59.POINT NO. 2 The applicant has pleaded and contended that he has been dismissed from service illegally and mala fidely and that the respondents were responsible for observance of the Standing Orders Ordinance, 1968. However, in view of discussion and findings on foregoing point as the applicant has not been able to prove his relationship with the respondent, question of applicability of provisions of Standing Orders Ordinance, 1968 in the case of applicant, does not arise. The point is therefore, answered as not proved.
60.POINT NO. 3.
In view of my findings on Point Nos, 1 & 2, the applicant has failed to establish his case, as such this Grievance Petition is hereby dismissed.
Announced in open Court.
Given under my hand and the seal of the Court, this 20th day of August 2005.