This judgment shall also decide Labour Appeals No, 115 to 141 of 2008 alongwith this appeal, as common questions of facts and law are involved.
2. Brief facts leading to these appeals are that the appellants are performing their duties as Fire Fighters with PARCO Limited, District Muzafrargarh but without taking into consideration their uninterrupted length of service spreading over years and years they were not regularized, hence after serving the grievance notices they filed grievance petitions under Section 46 of the IRO 2002 read with all provisions of law applicable.
3. Learned counsel for the appellants submits that the appellants were enrolled with EOBI, they were issued duty roster and duty schedule by Pak Arab Refinery Limited (Respondent No, 2), after serving more than 15 years they had attained the status of permanent workmen but due to the inaction of Respondent No, 2 they are suffering monetary losses and service insecurity. However, when agitated for regularization Respondent No, 4, Manager (HRD) rejected their request, the appellants tried to approach Respondent No, 2 but they were not allowed to see him, leaving them without any remedy except to invoke the jurisdiction of Labour Court. Further submits that the appellants had no power of hire and 'fire so they were within their rights approached the Labour Court but unfortunately the learned Labour Court dismissed their petitions on hyper technical point without adverting to the law laid down in PLD 1996 SC 610, PLJ 1999 SC 2375 and 1999 SCM R 373.
4. On the other hand, learned counsel for Respondents No, 1 to 4 supports the impugned judgment contending that the appellants are pot employees of PARCO, however, they performed their duties with PARCO being employees of Respondents No, 5 and 6 and as such Respondents No, 1 to 4 have no concern at all with the present appellants. Further submits that the learned Labour Court practically decided the cases keeping in view the specific provisions of Section 1(4)(g) of IRO 2002.
5. Learned counsel for Respondents No, 5 and 6 submits that the appellants were employed on contract by Respondents No, 5 and 6. Despite their performance of duties with PARCO the appellants cannot become the employees of PARCO, so their claim for regularization in PARCO is un-understandable because Respondents No, 5 and 6 being contractor of PARCO receive the finances to fulfill he contractual obligation, they have hired the appellants according to the terms and conditions settled between the appellants and Respondents No, 5 and 6 and they have no concern at all with Respondents No, 1 to 4. Further submits that according to the law laid down in Mobeen Ahmad Siddiqui vs. The Chairman, Sindh Labour Appellate Tribunal and another (1991 PLC 780), Haji Malik Ainan and 5 others vs. Federation of Pakistan through Secretary, Minister of Law, Justice and Parliamentary Affairs, Islamabad and 5 others (1993 PLC 961) and Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCMR 738), the learned Labour Court decided the cases strictly in accordance with law laid down supra.
6. Further submits that Respondents No, 5 and 6 undertake not to oust the appellants from their service till the subsistence/continuation of their contract with PARCO i,e, Respondents No, 1 to 4 because all the appellants are performing their duties satisfactorily and without any complaint whatsoever but they cannot be regularized because the contract of Respondents No, 5 and 6 with PARCO is a conditional one.
7. Arguments heard. Record perused.
8. The bare perusal of the impugned judgment reveals visible contradictions which cannot be simply ignored.
9. The learned Labour Court in its order dated 24.04.2008 referred the judgment reported as 1999 SCM R 373, discussed the merits of that case in the following terms: "Muhammad Rasheed Security Guard of PARCO was dismissed from service, he filed grievance petition before Labour Court who ordered for his reinstatement with full back benefits, PARCO filed appeal before the Labour Appellate Tribunal on the ground that according to Section 1(4)(g) of the IRO 2002 the dismissed employee of PARCO could not invoke the jurisdiction of Labour Court. This contention of PARCO find favour with" the Labour Appellate Tribunal, appeal of PARCO was accepted. However, the decision of Labour Appellate Tribunal was challenged before the High Court in constitutional petition which was accepted and order of the Labour Appellate Tribunal was set aside and case was remanded to the Tribunal for fresh decision. The decision of the High Court was assailed before the Supreme Court and the apex Court held that the provisions of Section 25-A of the IRO 1969 would not apply to the case of such workman through their own force, but by virtue of Standing Order No, 12(3), even if, the provisions of the Industrial Relations Ordinance, had been excluded in case of persons belonging to security service of an oil refinery, but as the provisions of Standing Order Ordinance have not been excluded, such a person could still seek his remedy before the Labour Court for redress of his grievance."
10.Despite referring the judgment of the apex Court, the learned Labour Court observed that "if a workman like the appellants is terminated, removed, retrenched, discharged or dismissed from service then the aggrieved person can invoke the jurisdiction of Labour Court but for regularization he cannot because reasoning for non-suiting the present appellants was non-suffering of such agony as exists in case of dismissal.
11. In addition to that the learned Labour Court referred a judgment reported as Collector of Central Excise and Sales Tax vs. Rupali Polyester Limited and others (2002 SCM R 738), wherein it was held that while disposing of the matter the intention of legislature should be kept in view and as the intention of legislature in the case before the Labour Court was to oust the employees from the jurisdiction of Labour Court, hence the learned Labour Court non-suited the appellants.
12. I am afraid that the learned Labour Court did not appreciate the law despite referring it itself as laid down in 1993 SCMR 373 and while non-suiting the appellants wrongly relied on a judgment reported as Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCM R 738).
13. So far the law laid down in 1993 SCMR 373 is concerned, it needs no further interpretation, admittedly the aggrieved person was an employee of PARCO, a specific objection was raised by PARCO on the strength of specific provisions of Section 1(4)(g) of IRO 2002 and this was attended to in explicit manner by the II on able Supreme Court of Pakistan and granted relief to the aggrieved person i,e, an ex-employee of PARCO. So far the judgment of Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCM R 738) is concerned, it has no nexus with the present controversy as in that case the matter related to vires of notification issued by CBR and it was held in so many words that: "Purposes for which a notification is issued would be relevant in determining the vires of notification--One of the practical and effect ways of proliferating the purpose is to see how for the suggested meaning destroys and defeats or promotes the ultimate purpose--Court, in such a research, is not confined to the literal meaning of the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question."
14.Even if we go through this judgment, it does not destroy the appellants cases rather it supports.
Needless to mention that according to the provisions of Article 189 of the Constitution of Pakistan, the judgments passed by the Hon'ble Supreme Court of Pakistan are binding and when the judgment reported in 1993 SCMR 373 is not over ruled by the Hon'ble Supreme Court itself, it shall remain binding but surprisingly the learned Labour Court did not advert to these important aspects of the matter.
16. In the present cases there is also a dispute amongst the parties i,e, between the appellants and respondents, appellants claim to be employees of PARCO (Respondents No, I to 4), PARCO disputes the parties same, Respondents No, 5 and 6 claim to be employer of the appellants and such like controversy cannot be resolved until and unless the evidence of both the parties is recorded by the learned Labour Court.
17. In the attending circumstances, I am of the firm view that so far the jurisdiction of the Labour Court is concerned, the matter in dispute could be agitated before the Labour Court, thus the impugned decision being contrary to law laid down in 1993 SCMR 373 is set aside. The cases are remanded to the learned Labour Court for decision on merits.
The appeals are allowed in the above terms.