' MUHAMMAD MOOSA K. LEGHARI, J.--- Since all the appeals arise out of common order those are being disposed of by single judgment.
2. Through these appeals, the appellants have challenged order, dated 28-4-2005 whereby the grievance petitions filed by the petitioners were dismissed by Labour Court No,III, Karachi.
3. Briefly stated the case of appellants before the Labour Court was that they were employed on permanent basis in the respondent-Company and were working there since last many years. It was pleaded that the appellants, formed a trade union under the name and style of "Pharmatec Mehnatkash Union" and submitted the documents to the Registrar for its registration. The appellants claimed to be active members/office-bearers of the newly formed trade union. As soon as they served notices upon the respondents under section 10 of I.R.O. 2002; the respondents called the appellants in their office on 1st December, 2003 and by causing intimidation, pressure, coerced them to sign some pre-written/pre-typed papers and further threatened them of dire consequences, in case they declined to sign those papers. It is alleged that on their refusal, appellants/applicants were informed by the Manager of respondent-Company that they were removed from employment and need not report for duty from the next day. It was pleaded that without service of any written order or notice and without any opportunity of hearing, entry of appellants was banned in the factory, thus, their termination was illegal.
' Consequent upon service of grievance notice to the respondents, the applicants filed individual grievance petitions praying therein for reinstatement.
4. Upon service the respondent/management filed legal objections and reply statement. The respondents pleaded that the appellants/workers were engaged by Messrs Sultan Brothers an independent contractor who was given some work on contract basis by respondent-Company as a measure of reorganization, as such the appellants were not employees of respondent-Company.
It was further pleaded that neither a cause of action accrued to the applicants nor they had locus standi to maintain their petitions. Further that none of their secured or guaranteed right was infringed. It was plea ed that some works of factory were given to the contactor and that the y might haw engaged some of the applicants, who in any case could n be deemed to be the employees of the respondents. Reepondents accordingly prayed for dismissal of the appeals.
5. It appears that on the pleadings of the parties Labour Court 'rained following points for determination:--
(1) Whether there exists relationship of master and servant between the parties?
(2) Whether applicants' services have been illegally terminated by the respondent-Company?
(3) Whether applicants are entitled for the relief claimed in this case?
(4) What should the order be?
6. Each of the applicants/appellants appeared in the witness-. Box as his own witness and was cross-examined, while Messrs Ziaul Haq, Factory Manager and Sultan Ahmed, contractor were tendered in evidence on behalf of the respondents and were duly cross-examined.
7. Learned trial Court arrived at the conclusion that there was no relationship of employer and worker between the applicants/appellants and respondents and that the applicants were employed on daily wages basis through contractor and therefore, were not entitled to any relief.
Consequently the grievance petitions were dismissed.
8. Arguments were heard.
9. In support of appeals it was contended on behalf of the appellants that the termination of the appellants was, tainted with malice, the contractor was a set up witness and that the action of respondents was vindictive, the order passed by Labour Court was against evidence, illegal, illogical and thus unsustainable.
10. Conversely it was argued on behalf of respondents that the applicants had no proof of employment with respondents, the Registrar has refused to register the so-called trade union formed by the applicants which act has not been challenged before any forum, therefore, has attained finality. In any case the applicants were not employees of the respondents and the burden of proving such fact was upon the applicants/appellants, which was not satisfactorily discharged by them. It was further argued that the respondents have produced ample evidence to show that the applicants have no relationship whatsoever with the respondents. The applicants were employed by an independent contractor, besides that they were not employed on the job of permanent nature. In any ease, the respondents were not responsible for the employment/wages of the appellant.
11. Good number of authorities was cited by each of the contesting parties in support of their respective contentions.
12. I have considered the arguments advanced before me, scanned the evidence adduced on record and have also sought guidance from the relevant case-law on the subject besides the rulings cited before me.
13. It is the case of the appellants that they were employed by the respondents in the factory and were working there since last many years. They formed a trade union namely "Pharmatec Mehnatkash Union" and sent such intimation to the respondents. This act of the appellants/ workers annoyed the respondents management and on receipt of such letters regarding formation of trade union they were removed from service, as they refused to sign some pre-typed papers.
Accordingly, with effect from 2nd December, 2003, the appellants were not allowed to enter the factory. It is further case of appellants that contractor namely Messrs Sultan Brothers is fake person and so-called agreement is fictitious documents.
14. Contrary to this, the case of respondents is that the appellants have no concern whatsoever with the respondents. It is their case that the respondents as a measure of reorganization have awarded some work on contract to Messrs Sultan Brothers vide agreement, dated 1st March, 2001, which is a separate independent identity. It is further the case of respondents that the contractor engages/employees his own labour/ workers to undertake the contractual work independently in the company premises according to requirement and specification of the respondent-Company.
The wages to the labour are paid by contractor and work is also supervised by. Him.
15. In the written statement the respondents have stated that the applicants were engaged on daily wages basis by the contractor Messrs Sultan Brothers who is independent employer in his own right.
' In the written statement filed by respondents it is admitted that the appellants were working within factory premises of the respondents. It is also admitted in the written statement that the appellants/applicants were engaged on daily wages basis. The defence taken by the respondents is only to the extent that the applicants/appellants were employed by the contractor and not by respondents. The agreement produced in evidence is of general nature as it does not provide any specific job to be done by contractor.
16. The respondents' witness namely Ziaul Hassan has expressly admitted in cross-examination that it is correct that the applicants were employees of respondent-Company but through contractor. He admitted that the attendance of workers for October and November contained signatures of Personnel Manager of the Company.
17. Muhammad Sultan owner of contractor company who also appeared as a witness of respondent candidly admitted in cross-examination that he did not know any of the applicants. He further stated that he used to issue appointment letter whenever he appointed any worker. Mr. Ziaul Hassan a witness tendered in evidence on behalf of respondent stated in para.6 of his affidavit-in-evidence that the applicants were engaged on daily wages basis by the contractor Messrs Sultan Brothers who was independent employer in his own right. Witnesses reasserted the same plea in para.8 of his affidavit-in-evidence stating that the applicants were engaged by the independent contractor and were not employees of respondent-Company. It is strange that contractor namely Muhammad Sultan also in para.3 of affidavit-in-evidence though admitted that the applicants were engaged by Messrs Sultan Brothers on daily wages basis to carry out the contractual job assigning in the factory premises of respondent. He in para.6 of affidavit-in- evidence stated that the applicants along with few temporary workmen were paid off on 21-11-2003 by the contractor and paras.9 and 10 of affidavit-in-evidence deposed that the members and office-bearers of Pharmatec Mehnatkash Union including applicants were engaged/employed by Messrs Sultan Brothers on daily wages basis and were paid off on 21-11-2003. Whereas in cross- examination, he stated that whenever he appointed any employee he used to issue appointment letter and further refused to identify the applicants.
18. The Labour Court observed that since applicants were employed on daily wages basis they could not be termed as permanent employees and that there was no relationship of employer and employee between applicants and respondents.
' To say the least, this observation is manifestly misconceived, as there is no category of daily wager in the Standing Order Ordinance. In my opinion it does not matter at all for the application of Standing Order Ordinance, whether the wages are payable on hourly basis, daily basis, weekly basis or monthly basis. The main consideration is the nature of work for which a worker is employed. The applicants have asserted that they were employed on permanent basis.
19. The evidence adduced on record makes it crystal clear that respondents have not challenged any assertion made by the applicants in their affidavit-in- evidence. Certain forms of overtime were filed along with affidavit-in-evidence of the applicants but they could not be controverted.
20. Consequent upon clearcut admission by respondent witness Ziaul Haq, who happened to the Notified Manger that "it is correct that applicants were employees of our company through contractor" there is no room for doubt that the applicants were the employees of the respondent, and their termination was illegal and that they were removed for malicious reason.
21. In the case of Dawood Cotton Mills' case 2004 PLC 348 a learned Division Bench of this Court observed as under:-- "Learned counsel indeed appears to be correct to the above extent and it needs to be seen in every case whether the person described as a contractor is really an independent contractor required to perform contractual obligations in relation to an establishment for which he has to employ workers to carry out duties under his own supervision and control or whether he acts as a mere agent of the owner of the establishment for supplying work force to the later. Such question have cropped up on several occasions and Courts have carefully gone behind paper arrangements described as "contracts" and at times it has been ,found that such "contracts" were merely designed to deprive workers of the rights and privileges that they would have enjoyed by virtue of being employees of the establishment. On other occasions the workers were found to be genuinely employed by independent contractors and owners of establishment were absolved of all liabilities."
' Same view was followed in the case of Fauji Fertilizer Company Limited v. Sindh Labour Appellate Tribunal and others reported in 2005 PLC 466.
22. Admittedly the applicants were working within the precincts of factory and were engaged in the manufacturing process. Respondent management took wavering pleas and could not produce reliable evidence to rebut the pleadings of the applicants. The acts on the part of the respondents appear to be vindictive and tainted with malice. Respondents have produced R/4 along with their written reply, which is a letter written by witness Ziaul Haq addressed to Joint Director Labour
(West) dated 6-12-2003 disclosing therein that some ex-workers of the contractor were attempting to form a fictitious trade union in order to blackmail and pressurize the management, as they have received such letter. This shows that the formation of the trade union was the main cause of annoyance of the respondents.
23. The agreement claimed to have been executed with the contractor is absolutely silent about the nature of work to be performed by the contractor. This appears to be a spurious documents, having been manipulated by the respondents to avoid the compliance of labour laws. Under S.O.
20 the respondents were liable for application of Standing Orders, in which they failed.
24. The legal objections raised on behalf of the respondents to the effect that since registration of trade union was declined by the registrar on the ground that the applicants were not workers employed by the respondents, and such refusal by the registrar was not challenged therefore, it would constitute a bar in agitating the individual grievance petitions is obviously misconceived for the simple reasons that statutory right provided by law to an individual worker could not be taken away by any act on the part of trade union, more particularly when its registration was conveniently declined by Registrar on the application initiated by respondent.
25. For the foregoing reasons, the appeals are allowed. Judgment passed by Labour Court is set aside and applicants are directed to be reinstated in service with immediate effect.
26. Regarding the back benefits, it may be observed that each of the applicants specifically pleaded that owing to illegal act of respondent, the applicants/appellants have become jobless and they have no means of earning. This plea was reasserted in para.10 of affidavit-in-evidence and was not challenged in gross-examination. None of the management witnesses asserted otherwise in their affidavit-in-evidence to controvert the claim of unemployment made by the workers. In the circumstances appellants are entitled to back benefits. They are accordingly allowed back benefit also.