' SYED HAMID ALI SHAH, J.---This single judgment shall dispose of Labour Appeal No,31 of 2006 titled "Fauji Sugar Mills v. Muhammad Ahmad", Labour Appeal No,32 of 2006 titled "Fauji Sugar Mills v.
Shafqat Ali", Labour Appeal No,33 of 2006 titled "Fauji Sugar Mills v. Liaqat Ali", Labour Appeal No,34 of 2006 titled "Fauji Sugar Mills v. Muhammad Aslam", Labour Appeal No,35 of 2006 titled "Fauji Sugar Mills v. Khurshid Ahmad", Labour Appeal No,36 of 2006 titled "Fauji Sugar Mills v. Munir Ahmad", Labour Appeal No,37 of 2006 titled "Fauji Sugar Mills v. Hafeez Masih", Labour Appeal No,38 of 2006 titled "Fauji Sugar Mills v. Muhammad Nawaz", Labour Appeal No,39 of 2006 titled "Fauji Sugar Mills v. Muhammad Gulzar", Labour Appeal No,40 of 2006 titled "Fauji Sugar Mills v.
Muhammad Arshad", Labour Appeal No,41 of 2006 titled "Fauji Sugar Mills v. Niamat Ali", Labour Appeal No,42 of 2006 titled "Fauji Sugar Mills v. Shahnawaz", Labour Appeal No,43 of 2006-titled "Fauji Sugar Mills v. Muhammad Khalid", Labour Appeal No,44 of 2006 titled "Fauji Sugar Mills v. Syed Ghulam Mustafa", Labour .Appeal No,45 of 2006 titled "Fauji Sugar Mills v. Nisar Ahmaad", Labour Appeal No,46 of 2006. Titled "Fauji Sugar Mills v. Iqbal Ahmad Sangra", Labour Appeal No,47 of 2006 titled "Fauji Sugar Mills v. Muhammad Boota", Labour Appeal No,48 of 2006 titled "Fauji Sugar Mills v.
Zahoor-ul-Haq", Labour Appeal No,49 of 2006 titled "Fauji Sugar Mills v. Muhammad Irshad", Labour Appeal No,50 of 2006 titled "Fauji Sugar Mills v. Muhammad Sarwar", Labour Appeal No,51 of 2006 titled "Fauji Sugar Mills v. Muhammad Tariq", Labour Appeal No,52 of 2006 titled "Fauji Sugar Mills v.
Abdul Majeed", Labour Appeal No,53 of 2006 titled "Fauji Sugar Mills v. Muhammad Javed Sajid", Labour Appeal No,54 of 2006 titled "Fauji Sugar Mills v. Muhammad Yousaf" and Labour Appeal No,55 of 2006 titled "Fauji Sugar Mills v. Muhammad Idrees" as common questions of law and facts are involved in all these appeals, while the appellant in all these appeals is Fauji Sugar Mills.
2. Respondents in these appeals are seasonal workers, employed in the establishment of the appellant namely Fauji Sugar Mills Sangla Hill, District Sheikhupura. It was asserted in the grievance petitions before the Labour Court that the seasonal workers (respondents) had been performing their duties for the past 13 to 35 years. Appellant used to call them through notice in the month of November, at the start of crushing season, every year and at the end of season their services used to be dispensed with. Respondents were not called for their duties at the beginning of crushing season during the year 2004. The respondents contacted the management at their own but were not allowed to enter the gate of the mill. The respondents assailed the refusal of the management of the appellant-company, qua re-employment of the respondents for crushing season 2004 through grievance notice under section 46 of Industrial Relations Ordinance, 2002, which was followed by a grievance petition before the learned Labour Court. Appellant contested the grievance petition by filing their written statement and replies. Various preliminary objections were raised namely: Fauji Sugar Mills Sangla Hill being a project of Fauji Foundation, is neither commercial nor industrial establishment but an entity registered as a trust under section 3-A of the Charitable Endownments Act, 1890 (Act VI of 1890); that the appellant being an establishment for the welfare of ex-serving Army Personnel, is excluded from the purview of Industrial Relations Ordinance, 2002 and consequent upon a settlement between the C.B.A. And the management, the respondents (petitioners in the grievance petitions) have no locus standi; the contractor who had been engaged to hire the manpower has not been impleaded as a party and as such the grievance petition is not competent; that the closure of the mill was granted by the Labour Court and in view whereof the petitioners have no right to claim re-employment; that the individual workman has no right to approach the Labour Court for such right is vested in C.B.A.
3. Learned Labour Court recorded evidence of the parties and vide order dated 19-12-2005 allowed the grievance petitions, appellant was directed to reinstate the employees in service as seasonal workmen, hence these appeals.
4. Learned counsel for the appellant has submitted that Fauji Foundation being a charitable organization does not fall within the definition of Industrial and Commercial undertaking. While referring to section 2(xvii) of Industrial Relations Ordinance 2002 he contended that a concern set- up exclusively for charitable purpose is excluded from the definition of industry. Further reference was made to section 1 (4) (b) of Industrial Relations Ordinance, 2002 to submit that any installation or service exclusively connected with the Armed Forces of Pakistan including Ministry of Defence are excluded from the application of Industrial Relations Ordinance; 2002. Learned counsel has referred to the case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) to contend that Fauji Foundation is part and parcel of the Armed Forces. He went on to argue by referring to the case of Army Welfare Sugar Mills Badin through General Manager v. Army Welfare Sugar Mills Workers Union, Badin through General Secretary and 2 others (2006 PLC 59) that.
Appellant's establishment being exclusively connected with the Armed Forces of Pakistan, is excluded from the purview of the Industrial Relations Ordinance, 2002 by virtue of section 1(4)(b)..
Learned counsel has pointed out that appellant suffered the losses of more than rupees eight crores which persuaded the appellant to approach the Labour Court under Standing Order 11-A of the Industrial and 'Commercial Employment (Standing Orders) Ordinance, 1968 for the closure of the mill. The permission was accorded, resultantly the appellant is vested with the right to lay off the service of its workmen. It was then submitted that the employees are recruited according to the quantum of work for the season and according to Standing Order 14 the seasonal workmen are to be given preference in re-employment at the beginning of next season. Preference as used in the Standing Order 14 is not equated with the word "vested right". Learned counsel has laid emphasis two words used in Standing Order 14, namely "preference" and "may" and then contended that by using the word "preference" legislature intended that employer has the authority to recruit other employees and in the course of employment, the only right which the seasonal employee has, is the right of preference. He added that various seasonal employees of the previous year, were recruited by the Contractor for the relevant crushing season. Right of a seasonal employee to claim re-employment at the beginning of the crushing season stands vitiated consequent upon the closure order by the learned Labour Court, under section 11-A of the Standing Order Ordinance, 1968. Learned counsel in support of his contentions has referred to the cases of M/s Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others"
(2000 PLC 89), "Mian Munir Ahmad v. The State" (1985 SCM R 257), "Farid Ahmad v. Pakistan Burmah- Shell Ltd" (1987 SCM R 483), "Taj Din and 44 others v. Punjab Labour Court No,3, and another" (1976 PLC 758) and "M/s Ememsco Industries Ltd v. S. Irfan Ahmad and another" (1983 PLC 981).
5. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment of the learned Labour Court and while referring to para. 3 of the impugned judgment, he has submitted that the learned Labour Court assumed the jurisdiction on the ground that appellant had itself invoked the jurisdiction under Standing Order 11-A, by seeking permission to close the mill. Further entering into an agreement with C.B.A. And acknowledging the status of C.B.A.
To represent the workers, are the acts indicative of the fact that the appellant admitted the applicability of Industrial Relations Ordinance, 2002. He has further contended that the permission granted to appellant to close the mill is sub judice in Writ Petition No,7664 of 2004, additionally the order of closure was procured by fraud and misrepresentation. Controverting the objection/stance of the appellant that the manpower is now recruited through Nazar Hussain Contractor, it was contended that Nazar Hussain was a dismissed employee who had received from the appellant emoluments. The whole exercise of hiring employment through him is aimed at to deny employment to the seasonal workers. Learned counsel has submitted that the witnesses of the petitioners (in grievance petitions) have not been cross-examined on major issues, therefore, stance of the petitioners stood proved. Learned counsel argued that the contract for recruitment of manpower (Exh.R-7) is signed and executed by the General Manager, who has no authority to enter into such agreement. He has submitted that the appellant has never suffered losses, thus closure order was not justified. He has submitted that the company was earning huge profits which fact is evident from the balance-sheet.
6. Heard learned counsel for the parties and examined the record.
7. Contention of the learned counsel for the appellant that Fauji Sugar Mills is a Charitable Organization and, therefore, does not fall within the definition of Industry as given in section 2(xvii) of Industrial Relations Ordinance, 2002, secondly it being an organization connected with the armed forces falls outside the purview of Industrial Relations Ordinance, 2002 by virtue of section 1(4)(b). Is not well founded, for various reasons: firstly the grievance petition has been filed in respect of a right guaranteed to a workman by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is well-settled law now that even where Industrial Relations Ordinance, 1969 is not applicable yet the Standing Order Ordinance, 1968 is applicable. The grievance petition can be maintained under section 46 of the Industrial Relations Ordinance, 2002. The reference in this respect can be made to the case of Security Papers Limited v. Sindh Labour Court-V and another (1981 PLC 898). Secondly the Standing Order Ordinance, 1968 is applicable to the appellant, by virtue of section 1 (4) (a) of the Ordinance, 1968. The appellant is Industrial and Commercial Establishment as defined in section 2(f) which is reproduced as under:- - 2(1) "industrial establishment means---
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, '1936 (IV of 1936); or
(ii) a factory as defined in clause (i) of section 2 of the Factories Act, 1934 (XXV of 1934); or
(iii) a Railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution, of a contract to which he is a party, and includes the premises in which, any process connected with such execution is carried on; or
(v) the establishment of a person who directly or indirectly employs workmen in connection with any construction industry."
8 As is clear from the clause (ii) above that factory is included in an industrial establishment.
Admittedly Fauji Sugar Mill is a factory where respondents/workmen were employed, therefore, there cannot be in any manner a doubt as to its status as an industrial establishment. Provision of Section 1(4) may be relevant in this regard.
1. Short title, extent and commencement
1. ..
2. .
3. .
(4), it applies to
(a) Every industrial establishment or commercial wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed during any day during the preceding twelve months;
(b) Omitted by the Industrial & Commercial (Standing Orders) (Amendment) Act, XXIII of 1973, S.2(a).
(c) Such classes of other industrial and commercial establishments as Government may, from time to time by notification in the official Gazette, specify in this behalf: ' Provided that nothing in the Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal and Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein: ' Provided further that the provisions of Standing Orders 10-B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply to the first instance, to any iedustrial establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months but Government may by notification in the official Gazette, extend all or any of the said provision to any such Industrial Establishment or any class of such establishment.
9. Bare reading of the above proviso shows that the Ordinance, 1968 does not apply to the industrial or commercial establishment carried by or under authority of federal or under provincial government where statutory rules of service etc. Are enforced. Appellant-establishment is not carried on by or under the authority of Federal or Provincial Government. Further there are no statutory rules of service, at least none has been pleaded, therefore, the Ordinance, 1968 is applicable to the establishment, and, therefore, the grievance petitions were maintainable before the Labour Court.
10. The appellant submits to the jurisdiction of Labour for the closing of the factory under Standing Order 11-A of the Industrial Relations Ordinance, 1968 and enters into settlement with C.B.A. Under the provisions of Industrial Relations Ordinance when it suits it but at the same time objects to the jurisdiction of the Labour Court when it does not suit him.
11. Reverting to the second argument of the learned counsel for the appellant that according to Standing Order 14 terms used are "may" and "preference" do not confer right upon workman to claim re-employment at commencement of crushing season. For the purpose of convenience Standing Order 14 is reproduced as below:-- "14. Re-employment of retrenched workmen.---Where any number of workmen are retrenched and the employer proposes to take into his employment any person, within a period of one year from the date of such retrenchment he shall give an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by registered post to their last known addresses to offer themselves for re-employment and they shall have preference over the persons, each having priority according to the length of service under the employer: ' Provided that, in case of seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of .1934), a workman who was retrenched in one season and reports for duty within ten days of the resumption of work in the factory in the immediately following sessions shall be given preference for employment by the employer: ' Provided further that, in case of such a seasonal factory, the employer may by sending notice by registered post to the last known address of a workman who was retrenched in one season require him to report on a day specified in the notice, not being earlier than ten days before resumption of work in such factory and if such workman so reports he shall be given preference for the employment and paid full wages from the date he reports."
12. Above provision of law confers right on a retrenched employee for re-employment if any retrenchment is effected within a period of one year. Obviously such right of re-employment is in accordance with the length of service under the employer. First proviso says that if within ten days of resumption of work in a seasonal factory in the immediately following season shall be given preference for employment by the employer. The words used by the legislature are "shall be given D preference" which make the provision mandatory.
' The second proviso says that employer "may" by sending notice by registered post require a workman to report on duty specified in the notice. Here the authority has been given to the management if it deems necessary may require a workman to call for work, even before the start of work and if the management thinks it may do so by sending a notice, through registered post. It is the right of a retrenched worker to be taken in employment in accordance with his seniority if retrenchment is made within one year and it is the right of a seasonal workman to be taken in employment if the retrenchment is ended at the beginning of the next season. The right of re- employment of seasonal workman cannot be declined on the basis of permission granted to employer to close the establishment, in view of their financial straitjackets. Closure and permission thereof are issues which are not the subject of this appeal and nothing further needs to be said.
13. Appellant has attributed closure of factory to the loss sustained and its reopening to the demand of grower. It is stated that when factory restarted on the demand of grower, manpower was hired on the basis of agreement Exh.R-7. For whatever reasons, at the beginning of the next season, the employer decided to re-start the factory, the retrenched workmen had, therefore, a vested right under S.O.14 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to be given opportunity of re-employment.
14. It is contended by the appellant that the company entered into an agreement with Mr. Nazar Hussain. Hiring of manpower was justified on the ground that it is the right of the employer to decide how to manage the affairs in the establishment. The employer has the right to outsource and this right has been recognized in a number of judgments including Farid Ahmad v. Pakistan Burmah Shell (1987 SCM R 1463), however, such exercise of right must be a bona fide exercise and such outsourcing must be genuine outsourcing and not merely a paper arrangement to shut out a worker and to defeat the provisions of Labour Laws. Cases of Hussain Bhai Calicut v. Alath Factory Union (AIR 1978 SC 1410), Dawood Cotton Mills Limited v. Sindh Labour Appellate Tribunal (2004 PLC 348); and Fauji Fertilizers Company Limited v. Sindh Labour Appellate Triburral (2005 PLC 466) can be referred in this respect where a contractual arrangement is merely a paper arrangement then it is duty of the court to go behind the agreement and to see the real transaction. The contract, which has been produced by the appellant does not contain relevant details regarding nature of work and the basis for the payment etc. P.W.-1 has admitted in his cross-examination that payments were made by the contractor which were verified by him. The payment receipts have been produced as Exh.R-8 and are mere and mere voucher statements. It proves that the contract is mere a paper work arrangement, arrived at to defeat the provisions of labour laws. The agreement (Exh.R/7) has no legal sanctity. It is aimed at to defeat the rights of the seasonal workmen for their re-employment for the relevant season, which law has provided. The agreement which defeats the provisions of law is void and nullity, according to provisions of section 23 of the Contract Act, 1872.
15. Case of Army Welfare Sugar Mills Badin through General Manager v. Army Welfare Sugar Mills Workers Union, Badin through General Secretary and 2 others (2006 PLC 59) has no application to the case in hand: Firstly leave (leave to appeal) has been granted by the Hon'ble Supreme Court of Pakistan against the decision; secondly facts of the reported case are quite distinguishable from that of case in hand. In this case the employer Establishment filed an application before the Labour Court for cancellation of registration of a trade union on the ground that Industrial Relations Ordinance, 2002 had no application on the petitioner Establishment. The application was dismissed by the Labour Court. Against the dismissal of application, a constitutional petition was filed, which was allowed and it was held that Industrial Relations Ordinance, 2002 is not applicable on Army Welfare Sugar Mills Badin. In the present case a grievance petition on the basis of S.0.12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was filed before learned Labour Court. Standing Orders Ordinance, as observed earlier in this judgment, is applicable to the appellant. Stance of the appellant besides being contrary is self-destructive. A party is debarred from taking inconsistent pleas, which amount to prejudice the right of other party I specially and are self-destructive in themselves. While holding so I am fortified by the law enunciated by the Hon'ble Supreme Court of Pakistan in the cases of Budho and others v. Ghulam Shah (PLD 1953 SC 553) and Mumtaz and 3 others v. Mian Khan (PLD 1973 Lahore 47).
16. For the foregoing the impugned judgment and order of the learned Labour Court is devoid of any infirmity or illegality, therefore, I am not persuaded to interfere in the impugned judgment and unsettle the same. The appeals are without any merit and are dismissed accordingly.