' MUHAMMAD MOOSA K. LEGHARI, J.--- Since the captioned two appeals arise out of the similar circumstances, both are being disposed of by this single. Judgment.
2. Through these appeals the appellant workers have assailed the orders dated 22-3-2002 passed by Sindh Labour Court No,IV, Karachi, whereby grievance petitions of the appellants were dismissed holding that the appellants were not workmen, therefore, were not entitled to invoke the jurisdiction of Labour Court.
3. The relevant facts, as contained in the memo of appeals, are that the appellants were employed by the respondent-Establishment and were designated as Civil Supervisor. Initially they were appointed for a period of 89 days vide a Service Agreement. After expiry of the said period, the service agreement was being renewed from time to time. It is pleaded after that the construction work was over in March, 1995. Appellants were transferred to work on the permanent job concerning transmission of oil through pipe lines, but neither further service agreement for 89 days was executed, nor they were issued any appointment letters. According to the appellants although no appointment letter, yet due to their working on the said jobs of permanent nature for a continuous period of one year, they became permanent employees as per the provisions contained in Standing Orders Ordinance, 1968.
' It is further pleaded that to safeguard the rights of the workmen employed by the respondents, the appellants and other workers formed a union under the name of "Fauji Oil Terminal and Distribution Co. Ltd. Employees Union" which was registered on 20-3-1996. Being annoyed by the formation of trade union, respondent-Management compelled the appellants to sign an agreement for employment for a period of 89 days in order to invent a ground for removal of the appellants due to trade union activities although the practice of execution of service agreement for 89 days having been discontinued had come to an end and the appellants were working on permanent jobs, though without appointment letters. It was accordingly pleaded that the action of the respondents was mala fide and their termination was illegal.
4. The appellants after having served grievance notice upon the respondent-Management, which was not positively responded, filed their individual grievance petition therein for reinstatement in service with full back-benefits.
5. The respondents filed written statement wherein they raised preliminary legal objection regarding maintainability of the grievance petitions on the ground that the appellants did not fall within the definition of 'workman' as contained in the I.R.O., 1969 and the Standing Orders Ordinance, 1968, as such they could not invoke jurisdiction of Labour Court, that appellants' act of becoming office- bearers of the trade union was challenged upto the High Court and respondents' version was accepted, consequently the appellants had to leave the union. On merits, it was pleaded that the respondent's construction work of road-way was being performed by an independent contractor namely Messrs Promet and the services of the appellants were hired to look after the quality control of cement, concrete used in the beams by the said contractor and since the said construction work was completed, there was no work to be done by the appellants in the respondent-Company, therefore, their services were no more required and as such were rightly terminated.
6. The learned Labour Court dismissed the grievance petitions on the sole ground that the appellants did not fall in the category of `workmen' as such could not invoke the jurisdiction of the Labour Court. Hence these appeals.
7. The arguments advanced at the bar by the learned counsel appearing for the parties have been considered and the material placed on record has been scrutinized.
8. Although, as stated above, the learned Labour Court dismissed the grievance petitions on the sole ground that the appellants were not covered by the definition of 'workmen', yet the learned counsel appearing for the respondents while arguing the appeal, strenuously stressed the emphasis on the contention that the services of the Appellants were hired for looking after the quality control of the material used by an independent contractor for carrying the construction work of the respondents relating to roads-ways and as the said work was completed, the services of the appellants could no more be utilized, as such the respondents had no option except to terminate their services. Besides, their contract having come to an end their services were lawfully terminated in terms of the agreement executed by them.
9. Conversely, learned counsel for the appellants vehemently criticized the impugned judgment pleading that the judgment was violative of the settled principles of law. He contended that the appellants were covered by the definition of workman, and their services were terminated for invalid and malicious reasons.
10. In order to understand the controversy it will be appropriate to reproduce hereunder the relevant portion of the termination letters of the appellants:-- "This has reference to the Service Agreement signed by you whereby you agreed to remain with us only for the total employment period from 1-1-1996 to 29-3-1996 (89) days on contract basis.
' Consequently the said Service Agreement came to an end on 30-3-1996 as it automatically lapsed at the end of 29th day of March, 1996 and thereafter you did not remain with us on contract basis."
11. Adverting to the contention raised on behalf of the appellant, with regard to termination of the respondent/worker on the plea of expiry of the agreement and non-availability of work, it may be stated that concept of execution of contract/agreement by an employer with his workman is inconsistent to the scheme of Labour Laws. The employment of workmen is regulated by the provisions of the statute.
' Section 3 of the West Pakistan Industrial and Commercial Employment (Standing Order)
Ordinance clearly provides that in every industrial and commercial establishment, conditions of the employment of workman shall, inter alia, be regulated in accordance with the Standing Orders and that according to section 4, the Standing Orders may be modified by means of a collective agreement but such agreement shall not have effect of taking away or diminishing any right or benefit available to the workman under the provisions of the Schedule. Section 7 of the said Ordinance provides for penalties and prescribes the procedure for imposing the penalty for violating any of the provisions of the Ordinance.
' Standing Order 2-A of the Schedule defining the Standing Orders in compliance of section 2(g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 specifically provides that every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing showing the terms and conditions of his service. Standing Order 12 of the said Schedule provides that for terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman and that the services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. Standing Order 13 provides the procedure for retrenchment whereas Standing Order 15, inter alia, defines the acts and omissions constituting misconduct, provides for the punishments for misconduct and prescribes the procedure for awarding such punishments.
' Standing Order 1 of the Schedule to the Standing Orders defines the classification of the workers, according to which there are only five categories viz. Permanent, probationers, badlis, temporary and apprentices. According to the provisions of Law itself a workman who has been engaged on a work of permanent nature likely to lost more than nine months shall become permanent after having satisfactorily completed a probationary period of three months.
12. From the above provisions of Law, it is obviously evident that the services of a workman shall have to be regulated in accordance with the above provisions and not otherwise. According to law the services of a workman who has been employed on a job of permanent nature could only be terminated by issuing him a letter of termination explicitly stating the reasons therefor if he is not being removed on account of misconduct. However, in case of removing an employee on account of a stigma on his career/conduct he is to be issued a show-cause notice and mandatorily an inquiry has to be conducted into the allegations levelled against him.
13. By executing the agreement with the workman the respondents have flagrantly violated the provisions of Standing Orders Ordinance. It is an admitted position that the applicants had been in the continuous employment of the respondents for a number of years, since March, 1995, if not earlier but instead of issuing them letters of appointment, A they were compelled to execute an agreement that too for a period of 89 days. Quite obviously this was purposely done with the intention of circumventing the law, as the respondents thought that in case the period of employment exceeds 90 days, it be difficult for them to get rid of the appellants/workers. Besides they will have to be provided certain monetary and other benefits, apart from security of service.
Needless to further stress that employing the workman for considerably long time but giving them break of one day is just a fraud on Statute which can neither be ignored nor overlooked. The respondents in the present case exactly did like that. They executed an agreement with the workman for a period of 89 days and then again executed a fresh agreement for a similar period.
' As observed above, there is no concept of execution of agreement between a workman and the employer by which the statutory rights of a workman could be diminished or taken away as law does not permit the same. In the given circumstances the stand taken by the respondents appears to be farce, the termination of the appellants is obviously tainted with malice which could not be sustained.
14. This point was dealt with by a full Bench of Honourable Supreme Court in the case of Enmay Zed Publication (Pvt.) v. Sindh Labour Appellate Tribunal and 2 others 2001 SCM R 65 wherein following observations were made:- "The submission has no merits. As observed above, the mandatory requirement of section 4 of the Act is that order of termination must be based on good cause. Mere fact that an employee was given service for a fixed period under the contract and expiry of that period, as" argued, being the basis of termination of service could be justified if it is held that it is a good cause with which we are unable to agree. Since it is a question of termination of service of an employee, therefore, the reasons of his termination which may constitute good cause primarily, among others, should relate to the performance of his duties and conduct and other caused of similar nature and not that his period under the contract has expired. If it is allowed to be used by the employer for termination of his service, the same would amount to nullify the provisions of section 4 of the Act."
15. Nevertheless, as the impugned judgments mainly deal with the issue as to whether the appellants fell within the category of 'workman' or not, it seems to be just and proper to deal with the said issue.
16. The respondents' Manager Operation and Technical Services namely Hassan Sobuctageen who appeared in the Labour Court as their witness, stated in the cross-examination, "It is correct to say that it was the duty of the applicant to arrange water for the shifts at the berths at Jetty. It is correct that the applicant used to arrange water from Port Qasim by coordination. I cannot say that anybody was working under the supervision of the applicant while he was in the construction side .It is correct to say that the applicant used to work in shifts in the Operation Department, alike others . It is correct to say that drawing/sketches, preparation work was, one of the duties of the applicant. The water operation and the preparation of the sketches were the main duties of the applicant".
17. It appears that the respondents had filed a Constitutional Petition being C.P. No,D-2045 of 1996 against the formation of the above said trade union inter alia, on the ground that the union had some members who were working as Supervisors with the respondent-Company, which included the appellants, and they not being workmen, the formation of the trade union was illegal. In the said petition the matter was referred to the Sole Arbitrator (Mr. Justice (Retired) Muhammad Zahoor-ul-Haque) for deciding the issues involved in the petition. The learned Arbitrator in the Award, copy whereof has been produced in evidence, inter alia, observed, "Therefore, irrespective of the salary Mr. Samiullah Sharif drew at the relevant time, he was a workman. He had no managerial or administrative capacity... Mere designation of a person as supervisor is of no consequence unless works performed by him are, such which can show that he was supervising the working of anyone".
18. In the case National Bank of Pakistan v. Sindh Labour Appellate Tribunal Karachi and 2 others reported in 1992 PLC 994 it was held as under:-- "On the question whether the employee was a workman or not, we find that the evidence adduced before the Labour Court supports the finding of the learned Sindh Labour Appellate Tribunal that the employee was a "workman". The Bank had mainly relied on the designation of the employee as Senior Head Cashier although it was also averred that he was performing duties of supervisory, administrative and managerial nature.
' However, the evidence on record had shown that the essential duties of the employee were not supervisory and managerial in nature. In his evidence, the employee had stated that he was preparing vouchers, bills, making entries in the ledger and countersigning on other documents, preparing Bank statements and also doing other miscellaneous clerical work. .... No case has been made to disturb the finding of the Labour Appellate Tribunal that the employee's duties being primary of clerical nature, he was a "workman" and, therefore, his application under section 25-A of I.R.O. Was maintainable."
' In PLD 1986 SC 103, the Honourable Supreme Court held:-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential land fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith' and substance of his employment must be manual or clerical before the definition is attracted."
' In view of above, it can safely be held that the appellants fall IC under the category of 'workman'.
19. The upshot of the above discussion is that both the appeals are allowed and the orders passed by Labour Court are set aside. Consequently the grievance petitions filed by the appellant workers stand D allowed. Resultantly they are directed to be reinstated in service with back benefits.
Reinstatement should take effect immediately, however, the back-benefits be paid within sixty days if not earlier.