' ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal is directed against the Judgment dated 17- 8-2011 passed by learned District and Session Judge 1st Labour Court Balochistan Quetta wherein their grievance petition was dismissed with the following observations:--- "In view of the above mentioned facts and circumstances of the case it is concluded since there exists no cause of action between the parties therefore without discussing the other issues the Issue No 1 is resolved against the applicants as application is not maintainable, hence is hereby dismissed."
2. The brief facts of the grievance application are that all the petitioners/appellants are permanent employees and they served department more than two to 20 years and the respondent regularised two employees in same category at Quetta where they also regularised the similar employees at Zhob, Pasni and Turbat airport and other provinces. After approaching the respondent with no fruit full result, then grievance notice and grievance petition which was dismissed by means of aforesaid judgment. Petitioners being aggrieved preferred the instant appeal with the following prayers:--- "In view of above it is accordingly respectfully prayed that impugned order dated 17-8-2011 marked as annexure-A passed by Presiding Officer may be set aside and grievance application may be allowed, respondent may be directed that appellant's services may be regularized after the completion of three months probationary period with all back-benefits, in the interest of justice."
3. The learned counsel for appellant contended that though the B appellants were appointed by the contractor but their services were fully under control of establishment. Secondly submitted that entry card issued to them and they were performing their duty inside of the aircraft. Thirdly submitted that the case of their regularisation was once taken up and under process. Next submitted that the contract of contractor was expired after one year but the appellant's are working since 20 years. Lastly submitted that the case was decided without recording any evidence. On the other hand the learned counsel for respondent contended that appellants are employees of contractor and he completed his contract. Secondly submitted that the respondent PIA has its own rules and regulations for appointment and regularisation of employees. Lastly submitted that the entry pass issued to the appellants are only for entry in Airport as well as aircraft.
4. The counsel for the parities heard in length and with their able assistance the record was examined. Record reveals that there is many correspondence between the administration of PIA and subordinate officers of different Airport with regard to the number of daily wages employee. In these correspondence lists of daily wages employees as required are also available and the name of appellants are mentioned. It further reveals that after various reminder and correspondence no action has been taken.
5. In appeal in hand the moot question is an issue which is prevalent in most of establishments and industrial concerns. In a number of cases contract Labour is resorted to by employer to escape from application of Labour Laws and deprive workers of their legitimate rights. Judgments of superior Courts and other proceedings provide test for determination of fact whether workers engaged by contractor actually form part of employer's strength of Labour force and whether contract Labour is a device to avoid application of Labour Laws. Whether the employees appointed/engage to work for respondent are permanent worker of the respondent or otherwise.
6. The definition of worker and workman according to BIRA, 2010 under heading section 2-DD:--- "2(DD) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as supervisor or as an apprentice} in an establishment or industry for hire or reward either directly or through contractor whether the terms of employment expressed or implied, and for the purpose of any proceedings under this act 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 consequences of that disputed 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 managerial or administrative capacity."
' The same definition has been given in IRO and Standing Order Ordinance. From perusal of above definition which is quite clear that the employees appointed by the company directly or indirectly by the contractor are the permanent employees of the company after fulfilling the three months probationary period.
7. The learned counsel for respondent highly objected that the appellants have not been appointed by the respondent by means of any appointment letter. In reply of this objection the learned counsel referred a reported judgment of Sindh, Balochistan Law Report (sic) 1122 wherein held:--- "Contract- Contractor, Employment by or through Contractor-connotation and import, with reference to provisions as contained in the IRO 1969 (Since repealed) and the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968---Workers, allegedly engaged by contractor, were not taken on work by the company---they challenged, such action (refusal to employ) in the Labour Court---grievance petition were contested on the ground of "denial of relationship of employer and employee between the parties", evidence was led---The Labour Court directed reinstatement of the workers, holding that these workers were, in fact, workers of the Company---Employer/Company challenged the decision of Labour Court before Sindh Labour Appellate Tribunal (since abolished)---which dismissed the appeals and maintained the decision of Labour Court---Constitution petition filed by employer/Company has been dismissed, holding that for all purposes and intents, in view of the nature of work performed by the workers, the nature of contract, the role and status of contractor being that---of "Labour Supplier" leads to a definite conclusion that workers were employees of company and not of contractor "whether the device of engagement of the respondents through a contractor in respect of the work connected with the manufacturing of the urea whether disentitles the respondent workers from the legitimate rights under the Labour laws? Held, there is a direct nexus between the work performed by the workers and manufacturing of the urea, hence workers are of company of contractors.
' Employer---Test, held the workers though engaged by the contractor, were discharging their duties within the premises of the petitioner's factory, under the direct control and supervision of the petitioner's, employees---Company held to be the Employer."
' In view of above definition and citation the position of appellants who were engaged by the contractor are similar with that of above quoted authorities. For the reasons that contractor was a labour supplier. Secondly the appellants were totally working under the supervision, control and direction of the company. The similar view has been taken by Honorable High Court of Balochistan in reported Judgment in 2011 PLC 286.
8. Even otherwise this question has already been resolved in many other cases, as reported judgment in 2000 PLC 336 + 510 and 1995 PLC 194.
9. In above cited authorities one reported in 2000 PLC 336 wherein held, "Employees definition and connotation employee is a person who is engage by another on payment of wages. It connotes relationship between master and servant"
' Likewise in a previous judgment reported 1995 PLC 194 wherein it held, "Word "Worker" as used in the Ordinance connotation. Word "Worker" is used in a wide connotation in term of section 2(c) of the Ordinance and is described as a person who is employed directly or indirectly to do skilled/Unskilled/Manual/clerical work"
10. The learned counsel contended that the contractor by name and style Ali Traders who appointed the appellants is now no more the contractor of PIA and his contract was for one year.
This is very surprising that the labour supplier (contractor) has been working with the company for one year and thereafter his contract was ceased but the labourers who were supplied by that contractor are still working with the company, this aspect of the case further strengthens the case of appellant ' s .
11. The relevant record revealed that a certificate dated 14-7-2011 issued by the authority of respondent-company that some of the appellants are working in the company satisfactorily. This letter negates. The contention of learned counsel for respondent that entry pass has been issued by ASF and not by the PIA and that is too for entry for airport as well as that of aircraft. The entry pass or other any act with connection of security is the responsibility of ASF and not that of PIA.
12. In view of discussion, referred authorities and documents available on record it is proved that the appellants were supplied by the contractor Ali Traders to the company respondent where they perform their duty under the control, supervision and direction of the company particularly where above mentioned contractor Ali Traders is no more a contractor of the respondent company.
13. Consequently the appeal is allowed and judgment dated 178-2011 passed by learned District and Session Judge 1st Labour Court Balochistan Quetta is set aside with direction that appellant's services be regularised after the completion of three months probationary period without back- benefits because according to appellants they are still performing their duties. There will be no order as to cost.
14. The copy of order along with original record of trail court is sent to trial court. Case after completion is consigned to record.