MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Pakistan International Airlines Corporation Ltd. ("PIAC"), assails order dated 16.12.2021 passed by the learned Full Bench, National Industrial Relations Commission ("NIRC"), whereby the petitioner's appeal against order dated 04.02.2021 passed by the learned Member, NIRC, was dismissed. Vide the said order dated 04.02.2021, the learned Member, NIRC allowed the grievance petition filed by respondent No.3 and a direction was issued for his reinstatement in service with all back benefits.
He was also declared to have attained status of a permanent worker in PIAC.
2. The facts essential for the disposal of the instant petition are that vide letter dated 22.02.2006 issued by M/S Sky Rooms (Pvt.) Ltd. ("Sky Rooms"), respondent No.3, Imran Khan, was appointed as a Baggage Attendant at Bacha Khan International Airport Peshawar. Since his appointment, respondent No.3's services were deputed to PIAC at Peshawar Airport.
3. Vide letter dated 16.08.2018 issued by Sky Rooms, respondent No.3's employment was terminated pursuant to a report of the Station Manager PIAC, Peshawar in which it had been observed that respondent No.3 was a habitual absentee and had a poor attitude towards work which caused major problems in operational work.
4. On 28.09.2018, respondent No.3 issued a grievance notice to the Administration Officer/Station Manager of PIAC, Peshawar seeking his reinstatement in service with back benefits. On 24.10.2018, he filed a grievance petition before the NIRC assailing Sky Room's letter dated 16.08.2018 wherein he had inter aila contended that he did not receive a response to his grievance notice and that he ought to be reinstated in service with all back benefits. The said grievance petition was contested by PIAC by filing a written reply.
5. Vide order dated 04.02.2021, the learned Member, NIRC allowed respondent No.3's said grievance petition and directed PIAC to reinstate him in service with all back benefits. He was also declared as a permanent employee of PIAC. PIAC preferred an appeal before the learned Full Bench, NIRC against the said order. Vide the order dated 16.12.2021, PIAC's appeal was dismissed. The said concurrent orders have been assailed by PIAC in the instant writ petition.
6. Learned counsel for PIAC, after narrating the facts leading to the filing of the instant petition, submitted that respondent No.3 had not been appointed by PIAC; that respondent No.3 had no privity of contract with PIAC; that the letter for respondent Nos.3's termination was issued by Sky Rooms and not PIAC; that PIAC is neither a factory nor a commercial or industrial establishment as defined in Section 2(b; of the West-Pakistan Industrial and Commercial (Sanding Orders)
Ordinance, 1968 ("the 1968 Ordinance"); that the provisions of the 1968 Ordinance are therefore not applicable to PIAC; that Standing Order 1(g) defines a "contract worker" to mean a workman who works on contract basis for a specific period for remuneration to be calculated on piece rate basis; that PIAC comes within the meaning of "public utility service" as defined in Section 2(xxv) of the Industrial Relations Act, 2012 ("the 2012 Act"); that as per Schedule-I to the 2012 Act, public utility services include "railways and airways"; that PIAC is governed by Public Sector Corporate Governance Rules; that respondent No.3 not being the PIAC's employee had no cause of action against PIAC and as such his grievance petition dated 24.10.2018 was not maintainable; that the concurrent orders passed by the learned Member and the learned Full Bench, NIRC are liable to be set-aside as PIAC had been deprived of its right to lead evidence; and that since respondent No.3 was never appointed as a permanent employee of PIAC, he could not have been declared as such by the learned Member and the learned Full Bench, NIRC. Learned counsel for PIAC prayed for the writ petition to be allowed in terms of the relief sought therein. in support of his submissions, the learned counsel for PIAC placed reliance on the judgments in cases of Pakistan International Airline Corporation v. Akhtar Ali (1974 PLC 235), Muhammad Malik v. Chief Executive (PLJ 2019 Tribunal Cases (Note) 156), unreported order dated 16.01.2020 passed by the Hon'ble Supreme Court in Civil Petition No.1159/2018, and unreported order dated 05.07.2023 passed by the Hon'ble Supreme Court in C.M.A. No.9877/2022 and connected matters.
7. On the other hand, respondent No.3 submitted that the impugned concurrent orders passed by the learned Member and the learned Full Bench, NIRC do not suffer from any jurisdictional 'errors so as to warrant interference in the Constitutional jurisdiction of this Court; that as per the letter dated 16.08.2018 issued by Sky Rooms, respondent No.3 was terminated from service of PIAC; that ever since 22.02.2006 to 16.08.2018 respondent No.3 was continuously working for PIAC and the said period being more than nine months he had attained the status of permanent workman within the meaning of Standing Order 1(b) of the 1968 Ordinance; that the reason stated for respondent No.3' s termination amounted to allegation of misconduct and necessitated holding of an inquiry under Standing Orders 15(4) of the 1968 Ordinance; that PIAC did not adopt the procedure prescribed in Standing Orders 12 and 15 of the 1968 Ordinance; and that the learned Member, NIRC had correctly directed PIAC to reinstate respondent No.3 in service with all back benefits. Learned counsel for respondent No.3 prayed for the writ petition to be dismissed. With his written submission, respondent No.3 placed reliance on the judgments in cases of Messrs Bolan Mining Enterprises v.
Board of Trustees (2016 PLC 468) and Messrs Allied Precision Engineering Products (Pvt.) Ltd. v.
J. Handa Khan Maree (2011 PLC 286).
8. Respondent No.4 / Sky Rooms did not appear before this Court despite publication and was proceeded against ex-parte vide order dated 03.11.2023 passed by this Court.
9. I have heard the contentions of the learned counsel for the petitioner as well as respondent No.3 who appeared in person and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 5 above and need not be recapitulated.
10. Perusal of the impugned orders show that employment of respondent No.3 was terminated on 16.08.2018. On 28.09.2018, he issued a grievance notice to the Admin Officer / Station Manager of PIAC seeking his reinstatement in service with back benefits. Having not received a reply to the said grievance notice, respondent No.3, on 24.10.2018, filed a grievance petition before the NIRC assailing his termination and seeking for his reinstatement in service with all back benefits.
11. Admittedly, respondent No.3 was serving in the premises of PIAC with effect from the date of his appointment, i.e. 22.02.2006 until the termination of his services on 16.08.2018. He was reinstated in service with all back benefits vide order dated 04.02.2021 passed by learned Member NIRC.
12. Standing Order 1(a) in the Schedule to the 1968 Ordinance classifies workman into (i) permanent, (ii) probationer, (iii) badlis, (iv) temporary, (v) apprentice, and (vi) contract worker.
"Permanent workman" has been defined in Standing Order 1(b) to mean a workman who has been engaged on work of a permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike), or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months. Standing Order 1(e) defines a "temporary workman" as one who has been engaged for work which is of an essentially temporary nature likely to be finished within a period of not exceeding nine months.
13. Section 33(1) of the 2012 Act entitles a worker to bring his grievance in respect of "any right guaranteed or secured to him by or under any law" to the notice of his emloyer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises. The grievance with respect to which respondent No.3 had issued notice dated 28.09.2018 was the letter dated 16.08.2018 whereby he had been terminated from service.
14. During the proceedings before the learned Member, NIRC, respondent No.3 appeared as PW-1 and submitted his affidavit-in-evidence wherein he had deposed that he had joined his duties in PIAC as a Baggage Attendant at Bacha Khan International Airport on 22.02.2006 and until his termination from service on 16.08.2018 he had worked for more than twelve years. He also deposed that throughout the said period of service he was working with PIAC at the Peshawar Airport.
Respondent No.3's testimony on the record shows that he had served at PIAC for twelve years and five months, i.e. more than nine months as prescribed in Standing Order 1(b) of the 1968 Ordinance.
Therefore, he had acquired the status of a permanent workman and was entitled to all the benefits which the law, including the 1968 Ordinance, bestowed on such workman.
15. Respondent No.3 had testified that he had worked continuously for a period of more than twelve years as a worker in PIAC's establishment and he was also issued police security clearance for the said purpose. After this testimony, it was for PIAC to prove that he had not been employed for work of a permanent nature or said work did not last for more than nine months. This the PIAC did not do, instead PIAC chose to remain absent from the proceedings which resulted in order dated 20.11.2018, whereby learned Member, NIRC decided to proceed ex-parte against PIAC. Given the evidence on the record, I am of the view that from the contents of affidavit of respondent No.3, burden of proof was on PIAC to demonstrate that he had not been engaged in work of a permanent nature.
16. In the case of Executive Engineer v. Abdul Aziz (PLD 1996 SC 610), the Hon'ble Mr. Justice Ajmal Mian, as he then was, speaking for the Hon'ble Supreme Court held as follows:- "14. The ratio of the above judgment in the case of [Muhammad Yaqoob v. The Punjab Labour Court No.1 (1990 SCMR 1539) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided, he is covered by the definition of the term "worker" given in section 2 (i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than nine months."
(Emphasis added)
17. Regardless of what was written in respondent No.3's letter of appointment dated 22.02.2006, what is of crucial importance in determining whether a worker seeking benefits to which a permanent worker is entitled is whether he had been engaged in work of a permanent nature. For PIAC to say that even though respondent No.3 had served as a Baggage Attendant for more than twelve years but had not been engaged on work of a permanent nature is not tenable. In the case of Izhar Ahmed Khan v. Punjab Labour Appellate Tribunal (1999 SCMR 2557), although the appointment of a worker was described in his appointment letter as purely temporary, since the period of the worker's continuous employment on a certain post admittedly continued beyond a period of nine months, he was held to be a permanent workman within the meaning given to it in Standing Order 1(b) of the 1968 Ordinance. In the said case, it was also held as follows:- "A careful analysis of the above definition of 'permanent workman' and 'temporary workman' would show that it is the nature of work on which a workman is employed that determines whether the workman is a permanent or a temporary workman. If the work is of a permanent nature and likely to last for a period of more than nine months, the workman employed on such a work, who successfully completes a probationary period of three months, will be deemed to be a 'permanent workman'. On the other hand, if the nature of work is temporary and is likely to be finished within a period of nine months, then a workman employed on such work will be deemed to be 'temporary workman'. As a corollary, it follows that mere fact that if the work of a temporary nature continues beyond nine months, it would not make a workman employed on such work a 'permanent workman' as the expression "likely to be finished within a period not exceeding nine months" used in the definition clause does admit within its scope that a work of temporary nature may in certain circumstances stretch beyond nine months."
18. The mere fact that respondent No.3 has been working at the PIAC Station at Peshawar Airport for a period of more than twelve years implies that he was "engaged on work of permanent nature likely to last more than nine months." Therefore, he cannot be held to be a temporary worker but would be entitled to all the benefits provided by law to a permanent workman or worker. In holding so, reliance is placed on the following case law:-
(i) In the case of Government of Punjab v. Punjab Appellate Tribunal, Lahore (2002 SCMR 878), the Hon'ble Supreme Court did not interfere with the concurrent findings of the Labour Court, the Labour Appellate Court as well as the High Court to the effect that on expiry of ninety days' period, the private respondents assumed the status of permanent workmen and could not be terminated without conforming with the provisions of the 1968 Ordinance.
(ii) In the case of Board of Intermediate and Secondary Education v. Muhammad Sajid (2019 SCMR 233), the employer had been appointing workers for eighty-nine days only, and re-hiring them for the next eighty-nine days, and in this way the employer continued to avail the services of workers for a long period. This mode of employment was termed by the Hon'ble Supreme Court as the employer's "clumsy attempt to break the continuity of their service" and to create artificial breaks in their service period. It was held that the workers had been performing work of a permanent nature and had not been serving on casual posts. They were also held to be entitled to the regularization of their services. A similar relief was also granted to a workman in the case of Pakistan Telecommunication Co. Ltd. v. Azeem Kibria Bhatti (2016 PLC 491). (iii) In the case of Director General, LDA v. Amjad Ali (2004 PLC 224), the Hon'ble Lahore High Court held as follows:- "Intention and spirit of law could not be permitted to be offended against, by keeping an employee on the road just for 89 days (a day less than probationary span) which is as mentioned above, mala fide and this illegal device is against the aforesaid Ordinance. It is pertinent to mention here that petitioners have extended/re-employed the respondent after 89 days which clearly envisages that petitioners have exercised their power in a manner which is termed as mala fide to frustrate the mandate of West Pakistan Standing Order, 1968."
(iv) In the case of Saidan Shah v. PTCL (2017 PLC 162), the Division Bench of the Hon'ble Peshawar High Court held that the obvious difference between the two cadres, i.e. permanent and temporary, is that permanent employees/workmen are entitled to .different and more financial benefits during and after their retirement whereas a temporary employees/workmen are entitled to only wages and that too much-less. It was also held that an employer always exploits the employee's situation by treating him as a temporary employee so that it does not have to give him the rights secured or guaranteed to a permanent employee under the law.
19. The reasons set out in the letter dated 16.08.2018 for termination of respondent No.3 were that as per the report of the PIAC's Station Manager, Peshawar, respondent No.3 was a habitual absentee and his attitude towards work was very poor which caused major problems in operational work.
The said allegations amounted to misconduct within the meaning of Standing Order 15(3)(e) of the 1968 Ordinance. Now Standing Order 12(3) entitles a permanent workman that his services shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. In this regard, Standing Order 15(4) provides that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. It is also prescribed therein that the employer shall institute independent inquiries before dealing with charges against a workman. There is nothing on the record to show that PIAC had instituted such inquiries before terminating the services of respondent No.3.
20. As regards the contention of the learned counsel for PIAC that it is neither a factory nor a commercial or an industrial establishment, the same stands negatived by the judgment of the Hon'ble Supreme Court in the case of Pakistan International Airlines Corporation v. Board of Trustees, Employees Old-Age Benefits (2011 SCMR 1102) which records an observation to the effect that the flight kitchen and the engineering department of PIAC had been registered by PIAC itself under the Factories Act, 1934.
21. It was also urged on behalf of PIAC that since respondent No.3 was not PIAC's employee but of Sky Rooms which had issued him an appointment letter dated 20.01.2017, he could not have instituted the proceedings before NIRC against PIAC. He submitted that at best respondent No.3 would have a grievance against Skyrooms. It is not disputed that respondent No.3 performed his duties at PIAC's premises for more than twelve years. He may have no privity of contract with PIAC but had a contractual relationship with Skyrooms who are contractors/service providers to PIAC.
Regardless of the fact that terms of the agreements executed between PIAC and the service providers and the arrangement between respondent No.3 and the service providers do not show any privity of contract between PIAC and respondent No.3, the Superior Courts have considered such workmen to be the employees of the establishment where they work upon satisfaction of prescribed conditions. In the case of Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission (2013 SCMR 1253), the Hon'ble Supreme Court, after making reference to a catena of case law on the subject, culled out the following principles therefrom:- "(a) the word 'employed by the factory' are wide enough to include workmen employed by the contractors of the company;
(b) the employees of the contractor shall be the employees of the company if the contractor engaged the workers for running of the affairs of the company and not for some other independent work which has no concern with the production of the company;
(c) if the employees are working in a department of the company which constituted one of the principle organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company;
(d) the employees, engaged directly or through a contractor, would be deemed to be the employees of the company for whose benefit they perform functions;
(e) even though 'control' test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test; and
(f) if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights/benefits, the so called contract employees will have to be treated as employee of the company,"
22. In the above-mentioned case, the Hon'ble Supreme Court held that the workers who performed the work of bagging urea and connected activities at the premises of the company and whose services were engaged by contractors/service providers who paid their wages/salaries, were in fact the employees of the company. In this regard, the operative part of the said judgment is reproduced herein below:- "17 Normally, the relationship of employer and employee does not exist between a company and the workers employed by the Contractor; however, in the case where an employer retains or assumes control over the means and method by which the work of a Contractor is to be done, it may be said that the relationship of employer and employee exists between him and the employees of the contractor. Further, an employee who is involved in the running of the affairs of the company; under the direct supervision and control of the company; working within the premises of the company, involved directly or indirectly in the manufacturing process, shall be deemed to be employees of the company."
23. Additionally in the case of State Oil Company Limited v. Bakht Siddique (2018 SCMR 1181), a petition filed by the respondents for the regularization of their services was contested by the company primarily on the ground that the respondents were not the company's employees and that their services had been engaged by a third party service provider/contractor. This contention did not find favour with the Hon'ble Supreme Court which directed that the respondents services be regularized with effect from the date when they had approached the Hon'ble High Court for the regularization of their services. The operative part/of the said report is reproduced herein below:- "As regards the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretence and on that pretence to outsource the employment of the posts which are permanent in nature and it is on the record that the respondents have been in service starting from as far back as 1984. This all seems to be a sham or pretence and therefore, it being not a case of any disputed fact and no evidence was required to be recorded."
24. It ought to be borne in mind that the Hon'ble Supreme Court in the case of State Oil Company v. Bakht Siddique (supra), made the following observations:- "As regards the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretence and on that pretence to outsource the employment of the posts which are permanent in nature ..."
25. The documents on the record show that respondent No.3 had been working at PIAC's premises for more than twelve years. Given this fact, it cannot be held that the works performed by respondent No.3 at PIAC's premises were not of a permanent nature. Furthermore, if the duties performed by respondent No.3 were not related to running the core affairs of PIAC, it does not appeal to reason as to why he had been kept engaged to work at PIAC's premises for such a long period of time. It is also not material as to what the agreements between PIAC and the service providers provided for supervision of respondent No.3's work, but the fact remains that the letter dated 16.08.2018 for respondent No.3's termination shows that it was the Station Manager of PIAC who had reported about misconduct on the part of respondent No.3 which shows that he was working under the supervision of PIAC. Apart from that there was nothing brought on the record to show that it was the service provider's representative at PIAC's premises under whose orders or dictation respondent No.3 performed his duties. Since respondent No.3 had been working at PIAC's premises, for the purposes of labour laws he was a worker in the establishment of PIAC and entitled to the benefits and entitlements of a permanent worker.
26. I have been given no reason to interfere with the concurrent orders dated 04.02.2021 and 16.12.2021 passed by the learned Member and the learned Full Bench, NIRC, respectively.
Consequently, the instant petition is dismissed with no order as to costs.