' ALI SAIN DINO METLO, MEMBER.--- The appellant has challenged judgment dated 20th August, 2005, of the Sindh Labour Court No,04, Karachi, dismissing his grievance application No,148 of 1998, for his reinstatement in service.
2. Briefly, the facts are that on 24th October 1998, the appellant filed application No, 148 of 1998 for his reinstatement in service with back benefits in the Labour Court contending that he was a permanent workman, working as driver, in the factory of the respondent, who removed him from service wrongfully without any order in writing, in May, 1998.
3. According to the respondent, the appellant was employee of its contractor M/s. Shabbir Ali Services, to whom it had assigned the work of loading and unloading raw materials and finished goods within the factory premises on contract, further contending that the contractor had also not removed him from service but he had himself abandoned the duty.
4. The appellant examined himself and one other witness Kazim Ali ex General Manager of the respondent; while the respondent examined its Factory Manager Naeem Ilyas Khanani. The Labour Court dismissed the application for the reason that the appellant had failed to prove that he was employee of the respondent.
5. According to the appellant, the respondent did not issue letter of appointment or any service document to him or any other worker.
' However, he produced a certificate, issued by Kazim Ali General Manager of the respondent on 2nd September 1997, showing that the appellant was working as driver, driving a car of the respondent company.
6. Kazim Ali admitted that he had issued the certificate. However, in reply to certain suggestion put to him in cross-examination by the advocate of his ex-employer he gave obliging answers and stated that the respondent company had provided its vehicles to its contractors and that at the time of issuing the certificate the respondent was employee of the contractor. No importance can be given to these answers, as they are belied by the documents produced and admitted by the respondent. The agreement, under which the so called contractor was employed, is dated 12th November, 1997; whereas the certificate is dated 02nd September, 1997 i.e, more than two months before engaging the contractor. According to the agreement, the contractor was required to do the job of loading and unloading raw materials and finished goods within the factory premises, for which the respondent had agreed to provide him 'lifter and tractor brollies' and not cars, which had nothing to do with the job given to the alleged contractor. The certificate also does not mention that the car was provided to the contractor or that the appellant was employee of the contractor.
7. The respondent did not examine the so called independent contractor and did not examine any of the attesting witnesses of the agreement and also did not produce the original agreement. The work of loading and unloading raw materials and finished goods with the factory premises was directly concerned with the production of the factory. It was not an independent work. The lifters and tractor trollies used for the work belonged to the respondent. In such circumstances operators and drivers of the lifters and tractor trollies were, for all practical purposes, workmen employed by the factory and the story of the contractor appears to have been introduced as a device to deprive the workers of their legal rights. In this regard, reference may be made to the case of Fauji Fertilizer Company v. NIRC, reported in 2013 SCM R 1253.
8. The name of the appellant appears in the monthly shift schedules for the months of January 1997 and December 1998 (exhibit 7A and 7B) admittedly signed by respondent's notified Manager Naeem Ilyas Khanani and other concerned officers. The application (exurban AA4) moved by the appellant for giving him Rs,500/- in advance to be deducted from his pay of December 1997 admittedly bears signature of Mr. Bukhari, Transport Officer of the respondent. All these documents show that the appellant was employee of the respondent and not of the so called contractor. The photostat copies of the attendance register not mentioning name of the appellant produced by the respondent do not prove that the appellant was employee of the contractor and not of the respondent, as they do not mention names of all the workers of the respondent. For example, name of Baqar Ali, who was admittedly working as a clerk in the factory, is not there though names of several other clerks are mentioned.
9. Learned counsel for the respondent argued that the appellant had abandoned his duty without any cause and the Medical Certificate regarding his illness from 16th May 1998 to 27th May 1998 was bogus. The argument is without force as the appellant was not removed or dismissed from service on the charge of absence from duty. Absence without leave for more than 10 days is a misconduct under Standing F Order 15(3)(e) and on proof of the charge in an inquiry a worker can be dismissed from service. The respondent chose not to follow the procedure provided by the law.
10. In view of the above facts, circumstances and reasons, it is clear that the appellant was worker of the respondent and was wrongfully removed from service. The judgment of the Labour Court is therefore, not sustainable and is set aside.
11. As for an appropriate order, a period of more than 17 years has passed and the appellant is doing job in another establishment. Reinstatement with back benefits will be harsh to the respondent and reinstatement without back benefits will not be beneficial for the appellant. In such circumstances, it will be appropriate to compensate the appellant adequately for the loss of the job. The appellant had rendered services for one year only. In such circumstances, a compensation of Rs,150,000/- it awarded to the appellant in lieu of reinstatement, which the respondent is directed to deposit within 60 days for payment to the appellant. The appeal is disposed of accordingly.