Muhammad Hashim Khan Kakar, J.--Through this common judgment, we propose to dispose of the above constitutional petitions, as common question of law and facts is involved.
2. The relevant facts, in small compass, are that the petitioner is a company registered under the provisions of the Companies Ordinance, 1984, having its head office at Karachi and also its factory situated at Hub, District Lasbella (hereinafter sometimes referred to as the "Company" or the "petitioner") and is engaged in manufacturing, fabricating and die-casting of auto parts. Whereas the private respondents (the respondents), after their termination from service by the Company, filed grievance applications under Section 46 of the Industrial Relation Ordinance, 2002 read with Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 before the III Labour Court Balochistan at Hub (hereinafter referred to as the "Labour Court"), which were allowed by means of common order dated 23rd February, 2009. The said orders were assailed by the petitioner before the Labour Appellate Tribunal, Balochistan (hereinafter referred to as the "Tribunal") by filing appeals, which were dismissed vide common judgement dated 12th October, 2010, which is the subject matter of the instant constitutional petitions.
3. Mr. Muhammad Ali Khan, learned counsel for the petitioner, argued that no employer/employee relationship existed between the petitioner and the respondents and the petitioner had nothing to do with the employment, contract and wages etc of the respondents, as they were employees of the contractor. He further contended that the Labour Court as well as the Tribunal, while passing the impugned orders, allowed full back benefits along with re-instatement on job inspite of the fact that it was not proved by the respondents that they were not gainfully employed during the pendency of their cases.
4. Mr. Muhammad Shafique Qureshi, learned counsel for the respondents, on the other hand, stoutly defended the impugned orders, contending that no evidence, establishing the fact that the respondents were, in fact, the employees of the contractor, having been adduced, before the Labour Court, as such, the presumption, that the respondents were employees of the Company, was clearly attracted in the peculiar circumstances of the cases in hand. He further argued that this Court can exercise a very limited jurisdiction in setting aside the findings, arrived at by the two Courts below. He further contended that the respondents have rightly been re-instated with back benefits by the Labour Court, as they were jobless after their illegal termination.
5. We have heard the respective contentions of the learned counsel and carefully gone through the record. The sole question to be decided is, whether respondents were employees of the petitioner (as claimed by them) or of contractor (as alleged by the petitioner)? To determine the real status of a worker, as to he/she were employees of an establishment/industry/company ("company") or of a contractor, the superior Courts, in a number of cases, have introduced the following criteria/test:, (i)Whether the company has administrative control over the worker?
(ii)Whether the company based for the work done by the worker?
(iii)Whether the company has the power to reinstate and dismiss the worker?
(iv)Is the work required to be performed by workman of a permanent nature and is it related to process of manufacturing before the finished goods were sent into market?
(v)Whether payment for the worker's services was made by the company?
(vi)Whether the goods, that the worker helped to manufacture, when marketed, brought proceeds to the company itself?
(vii) The duration the worker had been performing his duties and providing labour in connection with the manufacturing process?
(viii) Whether the contractor is a genuine person and has not been setup merely to deny the worker of the benefits under the labour laws?
5. The evidence thus needs examination in the light of the abovementioned criteria/test. The cross- examination of Sarfraz Hussain Sailani, Factory Manager of the petitioner company (respondent/ applicant Jhanda Khan's case) is very relevant. He admitted that the Applicant was working in the Die Casting Department under different officers and when the applicant was removed from service, one Shahid was the Incharge. He further acknowledged that the applicant and other workers were paid salaries from the amount realized from the sale of the production. The applicant and other workers used to enter and exit the factory premises as per schedule and subject to security check. The work done by the applicant and others in the factory was subject to quality check by the Incharge concerned. He also admitted that no separate factory or production area has been established inside or outside of the factory premises nor any portion thereof was given on lease to anyone including the contractors, whose names have been given by him in the statement. The factory was also stated to be registered with the Social Security and Old Age Benefit Institutions and the applicant's contribution and EOBI amount have been deposited under the allotted registration number. The Manager admitted that it was their responsibility to issue appointment and termination letters, however, the applicant could not complain about it.
Similarly, Muhammad Hanif, Assistant Director, Balochistan Employees Social Security Institution, District Lasbella at Hub, in the aforesaid case, has also supported the version of the respondents and stated in cross-examination that no notification has been issued in favour of the applicant by a contractor. He admitted that the registration of a contractor is not permissible. He also admitted that during the course of survey, the worker, who is found working in the factory, is considered to be the worker of factory.
A careful perusal of the above mentioned evidence both shows and suggests that the respondents were the employees of the petitioner and not of the contractor. The record further indicates that the respondents, being employees of the petitioner, had no concern whatsoever with the contractor. It emerges from the record that during employment of the respondents, a number of contractors i.e. Continental Engineering Service (Pvt.) Limited, M/s Ali Associates, Industrial Contractors and Consultants, M/M Associates and Local Contractor, namely, M/s. Hashim Baloch Rind and Company were changed, but the respondents remained at their jobs in the petitioner's factory, meaning thereby they were employees of the petitioner. The petitioner also appears to have had administrative control over the respondents with power of hiringand firing. The respondents were also on the pay-roll of the petitioner. It can thus be concluded that the Company had hired the services of respondents just to save itself from the obligations and responsibilities under the labour laws. All the circumstances, individually as well as collectively, lead to one conclusion that the respondents were the employees of the petitioner. Under the provisions of the Industrial Relation Ordinance and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance that worker is not merely a person employed directly by the employer, but also one employed through a contractor. Therefore, the findings of both the Courts below, declaring the respondents as employees of the Company, do not suffer from any illegality or irregularity and, as such, does not warrant any interference by this Court.
6. Adverting to the contention of learned counsel for the petitioner regarding back benefits, we are of the view that back benefits, which are to be paid to a workman, are not to be allowed to him as a punishment to the employer for illegally removing him from service, but only to compensate the worker for remaining jobless on account of illegal removal from service by the employer. To be entitled to claim back-benefits, a worker is required to show that he was not gainfully employed during the period he was deprived of service till the date of reinstatement. It will be useful to reproduce the following portion from Development Bank of Pakistan and others, NLR 1999 Labour 127, of a divisional bench of the Hon'ble High Court of Sindh: "Apart from it, we are of the view that the question of back benefits to an employee is not to be resolved in his favour as a necessary corollary of his reinstatement in service. Initially the employee has to discharge the burden of proof that, during the relevant period he remained jobless and was not engaged in any other gainful venture. Obviously, this aspect of the matter cannot be resolved without sufficient evidence or other material to clarify factual position in this regard. Examining the instant case from this angle, we find that the petitioner has not even cared to file the copies of grievance petition, its reply or the evidence, if any, recorded before the trial Court or any other material to substantiate his claim."
Obviously, this aspect of the matter cannot be resolved without sufficient evidence. Examining the petitions from this angle, we are of the opinion that the petitioners have failed to prove that they remained jobless during the period of their termination from services till reinstatement. All the respondents in their grievance applications did not specifically state that they remained jobless and were not engaged in any other gainful venture. In the concluding paragraph it was simply stated, "that the applicant entitled to reinstatement with full back benefits being unemployed ...".
When the respondents gave evidence they also did not make positive assertion that they were and remained unemployed and that they were not engaged in any other gainful venture. All of them instead stated, that,{{URDU TEXT}}. The statement in the grievance application and statement made in Court are in our opinion not sufficient to establish that the respondents remained unemployed and did not engage in gainful venture. The record also reflects that even till date they have not joined their duties nor demonstrated that they attempted to do so, as such, on the principle of "no work no pay" we hold that the respondents are not entitled to receive full back- benefits. However, it is reasonable to presume that a person who is removed from service would not be able to get alternate employment immediately or be able to set himself up in any gainful venture and it would take a few months to do so. Accordingly, the respondents would be entitled to receive back benefits for a period of three months from the date of their removal from service.
For the forgoing reasons, we partly accept these petitions, by setting aside the common judgment dated 12th October, 2010 and common order dated 23rd February, 2009, respectively passed by the Tribunal and Labour Court only to the extent of award of full back-benefits to the respondents, however, the order of reinstatement of the respondents in service shall remain intact and the petitioner shall pay to the respondents back benefits for a period of three months from the date of their removal from the service of the petitioner.