' TASSADUQ HUSSAIN JILLANI, J.---Respondent Mehtab Khan Shakir considering himself to be an employee of Shell Pakistan Limited (appellant No,2), filed an application under section 15(2) of Payment and Wages Act, 1936 before the said Authority at Rawalpindi and claimed arrears of gratuity medical leave, annual leave and overtime, which according to him had been withheld by the appellant. The appellant denied the relationship of employer and employee by filing a written statement and contended that respondent was an employee of the Contractor and not of the appellant. Where after the Authority framed following issues:- "(1) Whether the petitioner was employee of Shell Pakistan Ltd. Or Messrs Chaudhary Engineering Ltd? OPP.
(2) Whether the petitioner is entitled to claim his wages under Payment of Wages Act 1936? OPP.
(3) Relief. "
2. In terms of its findings on Issue No,1 the Authority dismissed respondent's claim vide order dated 28-9-2005. This was challenged by the respondent before the Punjab Labour Court, Rawalpindi, who vide its judgment dated 12-12-2005 allowed the same and directed the authority under the afore-referred Act to determine the arrears due from the appellant. This was challenged in a Constitution Petition by the appellant, which stand dismissed vide impugned judgment dated 25- 3-2011.
3. Learned counsel for the appellant submits that respondent No,3 was never employed by the appellant; that the appellant had entered into a contract with Messrs Chaudhry Engineering and Trading Company respondent No,4 and respondent No,3 was an employee engaged by the said respondent; that respondent No,3 used to work in the premises of the appellant and for that purpose he was given an entry pass, which does not make him an employee of the appellant establishment. Relying on a judgment of this Court in the case of Farid Ahmad v. Pakistan Burmah- Shell Ltd. And others (1987 SCM R 1463), learned counsel submits that, respondent No,3 is not a worker within the meaning of section 2 (xxviii) of the Industrial Relations Ordinance (XXIII of 1969) to claim arrears from the appellant.
4. Learned counsel for respondent No,3 on the other hand submitted that respondent has worked as Supervisor in the Establishment. He was paid by the appellant and that the concurrent judgments have been passed strictly in accordance with the law declared. Learned counsel for the respondent has relied on the case reported as Lawrencepur Woollen and Textile Mills Ltd. v.
Government of the Punjab and others (PLD 2004 SC 416).
5. We have heard the /learned counsel for the parties at some length and perused the record.
6. Leave was granted vide order dated 18-7-2011, which reads as follows:-- "After having heard learned counsel for the petitioners leave to appeal is granted to examine, inter alia, as to whether respondent No,3 falls within the definition of a person who is performing his duties in the establishment of the Pakistan Shell or was he engaged by the respondent No,4 Messrs Chaudhry Engineering and Trading Company as Contractor and whether the learned High Court has erred in declaring him in the employment of the petitioners in absence of any evidence?
2. As a short point is involved, appeal is ordered to he prepared on the present record with liberty to the parties to file additional documents, if any and the same be fixed for hearing within two months."
7. Before dilating on the issues raised a reference to section 2(xxviii) of the Industrial Relations Ordinance (XXIII of 1969) would be relevant as respondent No,3 claimed to be a worker under this proviso. It reads as follows:-- "Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment [as a supervisor or) as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance 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 consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute [but does not include and person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensein or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature]."
8. In terms of its findings on Issue No,1 while dismissing the claim of respondent No,3 the Authority held as follows:- "ISSUE NO.1. This was essential and basic issue of the matter to resolve the real controversy between the parties. Besides the fact that what arguments recorded by the respondents against the petitioner I myself also observed the record minutely, specially amended petition of the petitioner and the reply of application of the respondent No,2 filed by the petitioner wherein the petitioner has without using any sense firstly diverted his own version of claim as alleged in his original petition against respondent No,1 by claiming the same against both the respondents in his amended petition, alleging therein liability in this connection severely as well as jointly being principal and contractor whereas this was not the case at all. Again he produced his evidence totally in confliction of above. Said his own pleadings and he again put all the liabilities upon the respondent No, 1 . The conduct of the petitioner alleging his claim and putting liabilities upon respondent No,1 only and in the same breath alleging liabilities upon respondents Nos.1 and 2 severally and jointly as principal and contractor. On one hand he is himself claiming employee of respondent No,1 and on the other hand he is claiming his job under respondent No,2 as contractor of the respondent No,1, all these his hot and cold breath at the same moment shows that either he was not employee of the respondents at all or he is not satisfy to claim that who was his actual employer out of the respondents.
' I hold hereby that petitioner has badly failed to prove this issue either way, hence decided against the petitioner."
9. The learned Labour Court reversed the findings vide judgment dated 12-12-2005 mainly on the ground that appellant admitted in cross-examination that the contract of the contractors started from 13-8-2001 whereas petitioner's claim was right from August, 2000, when admittedly respondent No,2 the contractor was not in picture. This judgment has been upheld by the learned High Court. In reversing the judgment on the afore-referred reason, the learned Presiding Officer of the Labor Court did not even examine the documents tendered by the respondent No,3 in support of his claim. Those indicate that none of the claims was relatable to the period prior to 13-8-2001.
Learned counsel for respondent No,3 was specifically confronted with this aspect and he candidly conceded that the respondent did not tender any document before the authority or before the Labor Court with regard to a claim of the period prior to 13-8-2001 i,e, the period when respondent No,4 had nor entered into contract with the appellant. That being so, the judgment of the Punjab Labour Court reflects misreading of material evidence on record.
10. In the two judgments referred by learned counsel for the appellant, this Court in similar circumstances had dismissed the claim of a person who was a contractor's employee and not an employee within the meaning of the afore-referred provisions and quashed the criminal proceedings pending before the Labour Court in the case of Mian Munir Ahmad v. The State (1985 SCM R 257) which arose out of complaint filed by the workers who claimed to be the employees of the establishment. The Court in this regard held as under:- "It is, however, ,crystal clear that since the allegation in the show-cause notice, which is prior in time as compared to the complaint, relates to the workers of the contractor, i,e, the workers employed by the Contractor, the case against the appellant must, ultimately, fail. It is, therefore, regrettable that the said Nadir Khan should have been permitted to harass the appellant on an allegation of this nature. It is well known, that the Factory Inspectors have vast powers which some of them do not hesitate to misuse.
20. As a result of the above discussion we allow all the 13 appeals and quash the criminal proceedings pending against the appellant before the Labor Court VI--at Hyderabad under section 2 of Schedule 2(g) of the Standing Orders Ordinance."
' In Farid Ahmad v. Pakistan Burmah-Shell Ltd. And others (1987 SCM R 1463), the court relying on a judgment of the Indian Supreme Court in D.C. Works Limited v. State of Saurashtra (AIR 1957 SC 264) rejected the claim of a person who was employed by a Contractor and the said Contractor was in contract with the establishment. The Court observed as follows:--- "In the present case Farid Ahmad appellant was employed by the person who had contracted to run a petrol pump of the respondent-company and not merely to supply labor to be engaged by the company. The contractor, in this case, is not only the person who had employed Farid Ahmad appellant but also the person who had the power of hiring and firing the employees; assigning works to be taken from them and not only directing them what to do but also the manner, in which they shall render services to the customers at the petrol pumps.
10. As mentioned above the question of relationship between the owners of factory/company and the persons employed by its contractors, has already been decided by this Court in the case of Mian Munir Ahmad (supra) and it has been held that such persons are not the employees of the factory owner but those of the contractor who has hired them."
11. The precedent case-law to which reference has been made by learned counsel for the respondent has no nexus with the issues raised in the instant case and therefore, are of no avail to him.
12. Admittedly, appellant No,2 did not issue any appointment letter in favor of respondent No,3. A claim under the Payment of Wages Act can only be made with regard to payment withheld by an employer. If respondent No,3 failed to prove that he was an employee of the appellant in terms of section 2(2) clause-G of the Payment of Wages Act, 1936, the claim made by him from the appellant was not tenable in law. Consequently, this appeal is allowed, the impugned judgment dated 25-3-2011 is set aside and that of the. Authority established Under the Payment of Wages Act dated 29-9-2005 is restored.