Muhammad Shabbir Jamal:--Two separate appeals one by Frontier Labour Contractor Bearing No, 12(22)/2004-L and the other by Coca Cola Export Corporation.. through its General Manager Lahore etc. Bearing No, 12(23)/04-L have been filed under Section 52 of the Industrial Relations Ordinance, 2002 before the Full Bench, NIRC in which they have assailed the judgment/order dated 22.11.2004 passed by the learned Single Bench NIRC at Lahore who inter-alia accepted the grievance petitiqn of Respondents 1-7. The learned Single Bench by the said order restrained the Appellants [Appeal No, 12(23)] from committing any further acts of unfair labour' practice upon the Respondents 1-7.
No order was passed against, Frontier Labour Contractor (who is Appellant in Appeal No, 12 (22)/04-L) as being not concerned with the Respondents 1-7. The Appellants 1 to 3 (Appeal No, 12(23)/04-L) were directed by the order of the Honourable Single Bench to allow the Respondents 1 to 7 to enter the work premises and perform their duties and to pay them their wages, otherwise it would be considered that they were committing unfair labour practice with them thus surrendering them liable for legal action. The learned Single Bench has held that Respondents Nos, 1 to 7 are constantly working in the Coca Cola Export Corporation (Concentrate Plane) and Social Security contribution is paid to the Department by the Coca cola Export Corporation i,e, the Appellant No, 1 in Appeal No, 12 (22)/04 on behalf of the Respondents 1 to 7 as admitted by one Shahab Malik'
(witness on behalf of said Appellant No, 1). The Learned Member has also observed that there is doubtful evidence that the Respondents 1 to 7 were paid by the Frontier Labour Contractors [the Appellant in Appeal No, 12(23)/04], because had there been any regular institution of the said appeal for the employment of workers permanently or periodically, he would have maintained his own registers.
The first appeal Bearing No, 12(22)/2004-L filed by Frontier Labour Contractor nullifies the claim of the Respondents 1 to 7 that they are employees of Coca Cola Export Corporation and have attained permanent status and assails the impugned Order passed by the Learned Single Bench in their favour on the ground that the Learned Single Bench has not taken into account the composite effect of the entire evidence. It has been contended that the impugned judgment was also not publicly announced as required under Regulation 18 of NIRC (Procedure & Functions) Regulations, 1973. It has further been assailed for the reason that the Learned Single Member called the parties into his Chamber on 22.11.04 and made an oral announcement. It is contended that the copy of judgment was not made available before 2.12.2004 despite applying for it earlier on 23.11.2004, because the same was not ready. The impugned order was further assailed on the ground that the same is based on conjectures and surmises and not on the evidence on record. The same is also contended to be based on misreading and non-reading of evidence.
3.We have heard at length the arguments of the learned Counsels in both the appeals and also carefully gone through the contents of the impugned order of learned Single Bench. Both the appeals have assailed the impugned Order of the Learned Single Bench in the same tone and almost on the same grounds. The main contention of the second appeal filed by Coca Cola Export Corporation is almost the same as that of the first appeal filed by the Frontier Labour Contractor i,e, the Respondents 1-7 are not the employees of the former but of the latter who is an independent contractor and the learned member pronounced oral judgment on 22.11.2004 in his Chamber without writing the detailed judgment and signing the same. It has also been contended that even the oral judgment was not publicly announced in the open Court. The impugned order in this regards has been assailed on the ground that there is no room in law for pronouncing judgment orally and that too in chamber by a learned Judge, without writing the judgment. Further it is contended that the NIRC has no jurisdiction to pass two orders on the same petition. The impugned order has been assailed also on the ground that the findings therein with regard to forgery of documents by the learned Member are conjectural and biased. No such allegation was raised and made in the main petition or affidavit in evidence at the time of answering the questions in cross- examination where the signatures of these documents were admitted. The contention that the impugned order is the out-come of the misreading and non-reading of the evidence has also been made.
4. The objections so raised in both the appeals are not tenable. The first objection regarding the status of respondents as permanent employees of the Coca Cola Export Corporation and not of the Contractor has been discussed at length in his judgment by the Learned Single Bench. After going through the evidence, case-law as cited by the appellants and facts of the case the Learned Single Bench holds that the, respondents are working constantly in the concern of the Appellant No, 1 in the second appeal as titled in the above, which is an industry and produces concentrate used for preparation of beverages like 'Coca Cola,' Tanta' and 'Sprite'. The fact that the contribution towards Social Security Institution on behalf the respondents and other employees is paid by the said Appellant No, 1 and not by appellant (in the first appeal as titled in the above) also substantiates the respondents contention in this regard. Further, the Frontier Labour Contractor, under an agreement of 1996 and extendable for the coming years by the consent of the parties is serving as a contractor to supply labour force to the said Appellant No, 1 i,e, Coca Cola Export Corporation. The Learned Single Member has rightly held that this agreement has been planted by the appellants 1-3 in connivance with and using the appellant of the first appeal (as cited in the above) as instrumental after the respondents tried to form union in the year 2001. This is not the only case of its nature. We find similarly in approach on the part of principle employer in number of cases. We would like to further discuss the issue involved in it in the light of other cases and the relevant law in the following:--
5. Contractor labour is an issue which is prevalent in most of the establishments and industrial concerns. In number of cases before judicial forums and the writ issued by the Government in its most reliable reports it was more often revealed that. the contract labour is resorted to by the employer to escape from the application of labour laws and deprive workers of their legitimate rights. It would not be out of place to cite. the observations/judgments of some of these Courts and extracts of the Government decrees that provide test for the determination of the fact whether the workers engaged by the contractor actually form part of the employer's strength of labour force and whether the contract labour is a device to avoid the application of labour laws and so acts as means of cheap labour to meet the business needs and objectives of the actual employer.
6. The Learned Full Bench NIRC comprising Mr. Justice (Rtd.) Attaullah Sajjad, Chairman, Mr. Mahmood Akhter, Senior member and Dr. Munir Ahmed Mughal, Member in their judgment dated 3.3.1993 while allowing the Appeal No, 12(52)/92 filed by General Secretary Pak Saudi Fertilizer Ltd, Bagging and Loading Contract Mazdoor Union as appellant against Pakistan Fertilizer Ltd.. etc. as Respondents have relied on S.0 20 of W.P. Industrial and Commercial Employment (Standing Orders) Ordinance 1968, Section 2(j) of the Factories Act 1934. It was held by the Honourable Bench that the legislative intent is clear that the provisions of labour laws will equally be applicable to workers in an establishment whether they are recruited directly or through a contractor in any manufacturing or commercial establishment. In their detailed judgment, the Honourable Bench have quoted some glaring examples and situations to underpin the exploitation of workers engaged through contractor, widely known as Contract Labour. These examples are cited here to explain the contract labour system as practiced in industries in Pakistan and to ascertain as to what extent workers engaged as contract labour are over-looked with regard to the protection of their legal rights and benefits by the main employer. These employees and the above appeal being identical in nature have direct bearing on the instant case.
7. In Sindh Employees Social Security Institution vs. Pakistan National Product (1989 PLC 81), it was held by the Honorable Karachi High Court that workers employed by the Contractor to work in connection with the manufacturing process of the industry or establishment were included in the definition of an employee as given in clause (8) of Section 2 of the , Pakistan Employees Social Ordinance, 1965 (Ordinance X of 1965). It was further held that the agreement between the workers and Contractor were merely a cover to deprive a group of workers of their rightful emoluments, privileges and benefits.
8. This view point or verdict of the Honourable Karachi High Court is strengthened by a Judgment of Indian Supreme Court in "Hussainbhal, Chalicut and Alath Factory Thozhilall Union, Calicut and others' (1978 PLD 397) wherein it was held that the presence of intermediate contractor with whom alone the workers have an immediate contractual relationship is of no consequence, when on lifting the veil, the naked truth is discovered, though draped in a different paper arrangement, that the real employer is the management and not the immediate contractor. It was further held that "Courts should be astute to avoid the mischief and achieve the purpose of the law and not to be misled by the legal appearance" The Honourable Apex Indian Court in this case further observed that in such cases the contractor was an agent or representative.
9. In "M/s. Basti Sugar Mills Ltd. vs. Ram Ujagar and others" (AIR 1964 SC 355) it was held by the Honourable Indian Supreme Court that the crucial test to judge whether employees are the workers of the establishment is the type of work done by them in the industry and where work is done in the industry by labour engaged by a contractor, the real employer is the owner of the industry.
10. This test fully circumvents the instant case in terms of relationship between Frontier Labour Contractor and Coca Cola Export Corporation. This relationship, as pleaded by the labour contractor in his appeal, is of a contractual nature for rendering services to the latter and performing the jobs of, clearing, loading, unloading, stacking etc. at their Concentrate Plant in Lahore, which manufacture essence to be used for the manufactures of Coca Cola and other drinks and so is the back done of the entire bottling industry carrying on the business of manufacture, production and sale of beverage commonly known as Coca Cola, Fanta and Sprite.
Both the products are part and parcel of the over all beverage industry, being so, the so called contract workers by all means are believed to the employees of the over-all strength of the Coca Cola Export Corporation. Therefore they have legitimate rights under the scope of labour laws applicable to the main concern.
11. We are not naive in comprehending the situation giving rise to the use of contract labour increasingly from the beginning of the decade of 1980s. The back ground of increase of contract labour in industry in Pakistan is the provision of termination simpliciter incorporated in Standing Order 12(3) by the Act No, XXIIII of 1968. This serves as a condition to restrain the employer who is required to assign explicit reasons while terminating the services of a workman. This condition virtually has taken away the unfettered powers of the employer. The condition so imposed by the law is fully in conformity with the principles of natural justice and Islamic injunctions, the employer reportedly has adopted a via media to disrupt the law so developed by resorting to-engage labour through contractor in most of the cases and also to split work to be carried at different places not only in regain its control on employment conditions but also to deprive workers of their legal rights and benefits. Chapter 2 (pp. 16-32) of the Report of the Task Force on labour published by the Ministry of Labour, Manpower and Overseas Pakistanis on 17th October, 1994 has squarely discussed these adversaries of the contract labour as abuse of legislation. some extracts from this Report are reproduced below:-- "Whereas factors responsible for contract labour are associated with the introduction of worldwide trend towards market economy, the management found its way to re-establish its control on employment conditions of workers which was lost by it by the restrictive legislation that has taken place of termination simplicitor provisions. The management to defeat the prevalent law and legislative checks on its authority and control resorted more frequently to contract labour practice."
(Page 18)
"....Contract workers are deprived of their legitimate legal rights, because practically the principal employer as well as the contractor escape the sanction of the law. The contractor by not notifying purposely his fixed address does not feel obliged to be answerable to the authority and so he, without fear of law, pays less wages to workers, makes them work longer hours in deplorable conditions, refuses them overtime payments, due leave, holidays, bonus, gratuity health cover and other welfare facilities prescribed by the law...." (Page 23).
"As the use of contract labour has spread during the past several years particularly in the manufacturing industry of the provinces of Punjab and Sindh, employers are stated to have resorted to it in certain departments of their factories or have divided establishments into smaller units, and rely on contractors to hire, pay and supervise workers. In some cases the entire work force has reportedly been given over to one or more contractors. The employers resort to contract labour is due to the need to enforce discipline, cut down on production cost..." (Page 24).
12. The contract labour in this scenario is most hard hit and adversely affected. The contract workers engaged for the business of Coca Cola Export Corporation also seem to be part of the same practice.
13.A reference to relevant labour laws leaves no doubt that the legislative intent is not to make any distinction between workers employed directly or through a contractor in matters of rights. The relevant provisions of some of the labour laws are reproduced for reference purpose in this regard:-- "Industrial Relations Ordinance, 2002"
Section 2(xxx) "Worker" and "workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding 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 who is employed mainly in a managerial or administrative capacity.
"West Pakistan Industrial & commercial Employment (Standing Orders) Ordinance, 1968 Section 20: Liability of Employer.--The employer of the industrial and commercial establishment shall personally be 'held responsible for the proper and faithful observance of the Standing Orders, whether or not the workmen of such establishment are employed through contractors."
Factories Act, 1934 Section 2(h) "worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room place where no manufacturing process is being carried on.
The terms, "manufacturing process" appearing in this definition has been defined in Section 2(g) ibid as follows:-- Section 2(g).--"manufacturing process" means any process--
(i) for making, altering, repairing, ornamenting finishing or packing, or otherwise treating any article or substance with a view to its use sale, transport, delivery or disposal, or
(ii) for pumping oil, water or sewage, or (iii)for generating, transforming or transmitting power.
Note : All workmen whether employed directly or through an agency who are engaged to do any of the job listed in the manufacturing process are covered as workmen and so it is employer's liability to provide them their rights and benefits under the law, which does not draw any distinction between workers directly employed and workers employed through an agency or contractor.
14.Despite the fact these legal provisions are beneficially available to cover contract labour, cases brought before Courts, as cited in the above, reveal bitter reality regarding their deprivation and predicaments in matters of their legal rights and benefits. The case before us does not seem to be a different one.
15.As regards the objection of the appellants that the Learned Single Member pronounced oral judgment on 22.11.2004 in his chamber without writing the detailed judgment and signing the same and that too was not publicly announced in the open Court, we have perused the order sheet. The Learned Single Member has recorded in the presence of parties in his order dated 28.10.2004 that he remained busy in the shifting of his residence and so he could not find time to peruse the lengthy case. He as such adjourned the case for order on 22.11.04. On the date so fixed the Learned Single Member in the presence of the Respondents and one of the appellants announced that by means of his separate order, the petition had been accepted. By such an Order the Learned Member has committed no mistake in law.
16. We do not find any force in the arguments of both the Counsels. There appears no error or omission in the impugned order of the Learned Single Bench. In our view he is absolute right in arriving at the finding that the Respondents Nos, 1 to 7 are constantly working in the Coca Cola Export Corporation (Concentrate Plant) and Social Security Contribution is paid to the department by the Coca Cola Export Corporation i,e, Appellant No,
1. The learned Counsels in both the appeals failed to point out any lacuna in the impugned order of the learned Single Bench.
17. For the foregoing reasons and after having gone through the impugned order of the learned Single Bench at Lahore which covers all the points, we are not inclined to accept both the appeals and the same are dismissed in limine.