The above petitions have been filed by the petitioners against the respondents under Section 33 of Industrial Relations Act, 2012 challenging termination of their services from the of respondents/company. Since the same questions of facts and law are involved in the above petitions, therefore, the same are disposed of vide this common/consolidated judgment.
2. Relevant facts of the case (s) are that the petitioner (s) initially approached the learned Presiding Officer IIIrd Labour Court Balochistan, Hub by filing application(s) under Section 41 of Balochistan Industrial Relations Act, 2010 wherein the Respondent No. 1 raised objection with reference to the jurisdiction of Labour Court on the ground that since the respondents' establishment is a trans-provincial establishment, hence, the Labour Court has no jurisdiction to entertain the application (s). The Labour Court allowed the applications of the respondents and the grievance application of petitioner (s) were returned to them to present the same the proper forum. The petitioner (s) challenged these orders before the learned Labour Appellate Tribunal Balochistan, Quetta by filing labour appeals who vide judgment dated 16-12-2013 accepted the appeals with the direction to Labour Court for decision on merits. These orders were assailed by the respondents before the Hon'ble High Court of Balochistan, Quetta in writ petitions which were dismissed by holding that although the respondent claims that they have a factory at Hub and their office in Karachi there is no other Branch Office, consequently, they cannot be termed as trans-provincial establishment.
3.The respondent (s) against the judgment passed by the Hon'ble High Court of Balochistan, Quetta preferred Civil Appeals No. 481 of 2017 & 913 and 914 of 2020 before the Hon'ble Supreme Court of Pakistan which were allowed vide judgment dated 20-09-2022 by the Hon'ble Supreme Court of Pakistan in the following manner:- "5. Admittedly, Respondent No. 3 is a local union registered by Respondent No. 2 under BIRA. When confronted with the fact that they are localized in the Province of Balochistan, and therefore, cannot operate with a trans-provincial establishment which already has a registered CBA the Respondents had no justifiable response which explained their registration and appointment as CBA It is settled law that in cases of trans-provincial establishments , the competent authority for registration of trade union and CBA is the NIRC and that provincial laws with respect to registration of trade unions or appointment of CBA are only applicable to establishments which are limited within the jurisdiction of that Province. It is also settled lave that where the establishment has its offices in more than one Province, it attains the status of a trans-provincial establishment, for which, jurisdiction vests under the Act of 2012. In this regard, it is important to note that it is the status of the employer and its establishment that determines the applicability of the Federal or the Provincial laws, meaning whether it is trans-provincial or not. Once it is confirmed that its establishment has offices in more than once Province then such an establishment is no longer amenable to the jurisdiction of the Provincial laws in matters covered under the Act of 2012. In these cases, NIRC has recognized and appointed as CBA, Mehnat Kash Union Mondelez Pakistan Limited and held a referendum on 09-01-2017, which fact is not disputed by the Respondents. In this regard, we also note that the impugned judgments have misread the evidence by finding that the Appellant has a liaison office in Karachi as the record shows that the Appellant has its head office in Karachi and two factories at Hub. We also note that Respondent No. 2 was directed by the Appellate Tribunal vide order dated 05-10-2012 to consider the application of Respondent No. 3 for registration as a trade union and Respondent No. 2 instead, interpreted this as a direction to register Respondent No. 3 as a trade union without due application of mind This in itself was an incorrect understanding on the part of Respondent No. 2.
6. So far as the disciplinary action taken by the Appellant against the Respondent Nos.5.1 to 5.17 in Civil Appeal Nos.913 and 914 of 2020, the stated Respondents had to approach the NIRC and not the Labour Court, if they were aggrieved by the disciplinary action. In so far as the impugned judgments are concerned, both have failed to consider the jurisdiction of the NIRC, its appointing a CBA and of holding the referendum. These are admitted facts which have not been challenged, hence, to conclude that the Appellant failed to prove its trans-provincial status is against the facts of the record.
7. Under the circumstances, we find that the impugned judgments have totally misconceived the facts on the record and the settled law with respect to trans-provincial establishment. Resultantly, the titled Civil Appeals are allowed while setting aside the impugned judgments dated 29-12-2016 and 06-06-2018, passed by the High Court".
4. After passing of the said judgment by the Hon'ble Supreme Court of Pakistan, the learned Labour Court returned the original applications to the petitioners to present the same before this Bench of Commission for its adjudication.
5. Facts of the case are that the petitioners were employed permanently on permanent job in the establishment/company of the Respondent No. 1 and they were performing semiskilled jobs in the said company continuously for last many years. They further averred that the Respondent No. 2 are engaged by the Respondent No. 1 as a partnership concern for the purpose of shifting their statutory liabilities on them under various Labour laws, including industrial and commercial employment (S.O) Ordinance 1968, B.I.R.O. 2010, BESSI 1965, Factories Act 1934, Employees Old Age Benefit Act 1976 and Compensation Act, 1923, Companies Profits (Workers Participation) Act 1968.
The Respondent No. 2 is the employee of Respondent No. 1 - for all purposes, including depriving the workers of their statutory rights under the said laws and other laws. As per petitioners, since their employment with Respondent No. 1, they were working under the supervision of company's supervisors namely Imran, Mohammad Asif, Shafullah, Ferhad Ali, and Phool Zaib and other officers, including shift Incharge, Production Manager, Assistant Manager. The petitioners became permanent employees/workmen of Respondent No. 1 after completion of three months service. The Respondent No. 1 was employing over 200/unionized employees but slowly and gradually removed unionized workers in order to appoint people/workers on payment of low wages. The Respondent No. 1 through Respondent No. 2 arranged issuance of show cause notices. The company dismissed the petitioners on the basis of so called enquiry by unauthorized person, no second show cause notice was given nor the copy of enquiry report was supplied, prior to dismissal. The applicants sent grievance notices to the Respondent No. 1 which were replied but Respondent No. 2 did not replied as per direction of Respondent No. 1. The dismissal orders are illegal, mala fide, against natural justice and against lawful authority, as such, the petitioners are entitled to reinstatement with full back benefits and the dismissal orders are liable to be set aside.
6.In response to the averments made in the petitions, the Respondent No. 1 filed his written statements/replies wherein contended that there has been no employment relationship of petitioners with answering Respondent No. 1 at any point of time nor the petitioners have produced any valid documentary proof to establish their assertions while it is a matter of fact that Respondent No. 1 issue letter of appointment invariably to all its employees/workers at the time a their employment in the establishment. As per Respondent No. 1, the company has entrusted certain work/job of the establishment to independent contractors namely HRSG outsourcing (Pvt.)
Limited (Respondent No. 2) and also another independent contractor namely M/s. Hayat & Company who directly appoint its employees/workers and they also issue separate identity cards etc. to its employees and that the petitioner was engaged by Respondent No. 2 and the petitioners have no employment relationship with Respondent No. 1. It is further contended that various allegations contained in the petition against respondents are without any substance as the respondents pay all type of taxes and also comply with the provisions of various labour laws in letter and spirit, the allegations raised by the petitioners are after thought plea for which they never brought the same to the notice of their employer viz. Respondent No. 2 and after their dismissal from service, they have now raised false and malicious allegations against the respondents. As Per Respondent No. 1 there exist a registered trade union of workers engaged and employed by Respondent No. 1 in the establishment and the said union is also enjoying the status of collective bargaining agent (CBA) who look after the interest of only those employees/workers who are engaged by the establishment viz. Respondent No. 1. As per Respondent No. 1 there is no substance in the assertions of the petitioners with regard to payment of higher amount to the unionized workers and the petitioners are put to strict proof of their averments. The establishment fully observe the provisions of various labour laws including social security, EOBI, bonus etc. in respect of the employees/workers engaged and employed by the establishment while the contractors used to pay social security and EOBI contribution in respect of employees/workers engaged and employed by them directly to the Institutions and the allegations raised by the petitioners are false and misleading. It is vehemently denied that the respondents have violated any provision of law as alleged. It was not obligatory on Respondent No. 1 to issue letter of appointment to the action against them and also issued order of dismissal. Lastly it was prayed to dismiss the petition being based on baseless averments.
7. The Respondent No. 2 also contested the petitions by filing pare wise comments/reply to it mentioning therein that the petitioners were engaged and employed by Respondent No. 2, they were issued with service identity cards, registration card of EOBI and also used to pay them salary and for all intents and purposes, the petitioners were engaged and employed by Respondent No. 2 who is the contractor of Respondent No. 1 and performing the job as per written contract agreement between the parties to fulfill its contractual obligations. The petitioners were dismissed from service as a result of proved act of misconduct after issuance of charge sheet and as many as three enquiry notices in respect of afore mentioned charge sheet separately and directing them to participate in the enquiry but they deliberately failed to participate therein. Hence the enquiry officer has proceeded and completed the enquiry, ex-parte where after, he submitted his enquiry report wherein the petitioners were held guilty of committing acts of misconduct as mentioned in charge sheets and, therefore, they were rightly dismissed from the service by Respondent No. 2, hence prayed for dismissal of petition.
8. Thereafter, the parties were directed to adduce evidence with regard to their respective contentions to which evidence was produced in the following manner:- SerCase No Description 1. 4B(37)/22-Q Muhammad Nawaz V/s M/S. Cadbury Pakistan & others.
Both the parties relied upon their affidavits-in-evidences and cross-examination earlier conducted during the first round of litigation before the Presiding Officer, IIIrd Labour Court Hub Balochistan wherein the petitioner filed his own affidavit-in-evidence who was cross-examined by the respondents' counsel whereas the Respondent No. 1 filed affidavit-in-evidence of its representative namely Azeemus Shan Khan son of Muhammad Qamar-ud-Din Khan who was cross-examined by the petitioner's labour representative while the Respondent No. 2 filed affidavit-in-evidence of its representative namely Mansoor Ahmed son of Masroor Ahmed who was also cross- examined by the petitioner's labour representative.
2. 4B(39)/22-Q Javaid V/s M/s Cadbury Pakistan & other The petitioner relied upon his affidavit-in-evidence and cross-examination earlier conducted during the first round of litigation before the Presiding Officer, IIIrd Labour Court Hub Balochistan wherein the petitioner filed his own affidavit-in-evidence who was cross-examined by the respondents' counsel. The Respondent No.1 filed affidavit- in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner's counsel.
3. 4B(04)/23-Q Amresh Kumar and others V/s M/S. Cadbury Pakistan & others.
The petitioner filed his affidavit-in-evidence who was cross-examined by the Respondent No. l's counsel whereas in rebuttal. the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner's counsel.
4 4B(06)/23-Q Zeeshan V/s M/S. Cadbury Pakistan & others.
The petitioner relied upon his affidavit-in-evidence and cross-examination earlier conducted during the first round of litigation before the Presiding Officer, IIIrd Labour Court Hub Balochistan wherein the petitioner filed his own affidavit-in-evidence who was cross-examined by the respondents' counsel. The Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner's as well as Respondent No. 2's counsel 5 4B(07)/23-Q Nasrullah V/s M/S. Cadbury Pakistan & others The petitioner relied upon his affidavit-in-evidence and cross-examination earlier conducted during the first round of litigation before the Presiding Officer, IIIrd Labour Court Hub Balochistan wherein the petitioner filed his own affidavit-in-evidence who was cross-examined by the respondents' counsel. The Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the 'petitioner's as well as Respondent No. 2's counsel.
6. 4B(10)/23-Q Zulfiqar V/s M/s. Cadbury Pakistan & others.
The petitioner did not file his affidavit-in-evidence nor appeared before the Commission, whereas the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner's as well as Respondent No. 2's counsel.
7. 4B(38)/22-Q Muhammad AnwarV/s M/s. Cadbury Pakistan & others.
The petitioner relied upon his affidavit-in-evidence and cross-examination earlier conducted during the first round of litigation before the Presiding Officer, IIIrd Labour Court Hub Balochistan wherein the petitioner filed his own affidavit-in-evidence who was cross-examined by the respondents' counsel. The Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner's as well as Respondent No. 2's counsel.
8 4B(08)/23- QMuhammad Ishaq V/s M/s. Cadbury Pakistan & others.
The petitioner filed his affidavit-in-evidence who was cross-examined by the Respondent No. l's counsel whereas in rebuttal, the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner and Respondent No. 2's counsel.
9 4B(09)/23-Q khadim Hussain V/s M/s. Cadbury Pakistan & others. The petitioner filed his affidavit-in-evidence who was cross-examined by the Respondent No. l's counsel whereas in rebuttal, the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner and Respondent No. 2's counsel.
10. 4B(02)/23-Q Abdul Ghaffar V/s M/s. Cadbury Pakistan & others.
The petitioner filed his affidavit-in-evidence who was cross-examined by the Respondent No. l's counsel whereas in rebuttal, the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner and Respondent No. 2's counsel.
11. 48(03)/23-Q Shazada Khan V/s M/s. Cadbury Pakistan & others.
The petitioner filed his affidavit-in-evidence who was cross-examined by the Respondent No. l's counsel whereas in rebuttal, the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner and Respondent No. 2's counsel.
12. 4B(05)/23-Q Muhammad AkramV/s M/s. Cadbury Pakistan & others.
The petitioner filed his affidavit-in-evidence Who was cross-examined by the Respondent No. l's counsel whereas in rebuttal, the Respondent No. 1 filed affidavit-in-evidence of his representative namely Taimoor Ebrahim Vohra before this Bench of Commission who was cross-examined by the petitioner and Respondent No. 2's counsel.
9. I have heard the arguments of learned counsels for the parties at length, the learned counsel for the petitioner (s) submitted that the petitioners performed their duties in the establishment of respondents for three to five years which fact has not been disputed by the respondents, the petitioners performed their duties against the permanent nature of jobs without any break since their initial appointments, therefore, under Section 2(i) and 2(g)(1)(a)(b) of the Industrial & Commercial Employment Standing Orders Ordinance, 1968, the petitioners attained the status of permanent workman, but they were ousted from their services in the manner which is in violation of the provisions of Industrial & Commercial Employment Standing Orders Ordinance, 1968. The learned counsel for petitioners during the course of arguments invited the attention of Commission towards written reply of respondents wherein the respondents have admitted the fact of duration of services being rendered by the petitioners under the subordination of respondents, In the last the counsel for petitioners prayed that the petitioners according to above quoted provisions of law as well as judgments of the Hon'ble High Courts and Apex Court may be reinstated into service and declared to be permanent workmen of Respondent No. 1, as such, after reinstatement, their services may be directed to be regularized.
10. The learned counsels for respondents strongly contested the arguments of learned counsel for petitioners, they contended that the petitioners though were contract employees, they were appointed in the establishment of Respondent No. 1 through third party contractor i.e. Respondent No. 2, they have no nexus, concern or connection with the company/Respondent No. 1, hence their regularization cannot be claimed from Respondent No. 1, the affairs of petitioners with regard to their pay, allowances and other facilities were managed by the Respondent No. 2, the Respondent No. 2 had appointed the petitioners and on the ground of misconduct after conducting ex-parte enquiry proceedings, the petitioners' services were terminated, the Respondent No. 1 had no any concern or connection with the affairs of the petitioners, they are not on the payroll of Respondent No. 1, as such, prayed for dismissal of the petition.
11. I have gone through the case files carefully in the light of arguments advanced by the learned counsels for the parties. It is worthwhile to mention here that initial appointments/employment of petitioners with the Respondent No. 1/Company have not been denied by the respondents in their para-wise comments and it has also not been denied by them that the petitioners performed their duties against the jobs for which they were appointed for three to five years without any break in their services. The respondents have also not brought on the record such document on the basis of which it could be ascertained that the petitioners were hired for temporary/project post, therefore, under such circumstances; it cannot be said that the petitioners were appointed against temporary post for certain project. As the declaration of service of petitioners as mentioned in the petition have not been denied by the respondents, therefore, I would like to reproduce the following provisions of law in which the definitions of establishment and commercial establishment have been given: Section 2(x) of Industrial Relations Act, 2012:- "establishment" means any office, firm, factory, society, undertaking, 'company, shop or enterprise, which employs workmen directly or through a contractor. for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in Section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments".
Section 2 (b) of Industrial & Commercial Employment (Standing Orders) Ordinance, 1968:- "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company, or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema, or theatre, and such other establishment or class thereof as Government may by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance".
12. As the Respondent No. 1/Company fall in the above definitions and the petitioners admittedly worked in the Respondent No. 1's establishment for three to five years, therefore, they were the employees of Respondent No. 1. Now it is also worthwhile to reproduce the definition of Permanent Workmen as defined in Section 2(g)(1)(b) of Industrial & Commercial Employment (Standing Orders) Ordinance, 1968: "A permanent workman is a workman who has been engaged on work of 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.
13. Bare reading of above mentioned provision of law it is crystal clear that the jobs performed by the petitioners fall under the definition of permanent workmen. The petitioners admittedly were working in the Company for three to five years without any break and have successfully completed the period i.e. ninety days mentioned in the above provision of law, provided that the work is of permanent nature, therefore, they under the law are permanent workmen. Had the jobs/posts/duties of petitioners were of temporary in nature and meant for project, they would have been expelled from their services as soon as the project work would have been completed. As stated above all the petitioners worked in the Company for three to five years on the posts initially appointed, therefore, they are permanent workman, it has further been mentioned in the said provisions of laws that the period of illegal lock-out of strike will not be counted while calculating the period of probation, but any break in actual duty period due to sickness, accident, leave, legal lock-out or strike, involuntary closure of establishment, will be added to make up the period of three months, but in the case in hand no such contentions have been raised. Now it is an admitted position that the petitioners were the employees of Respondent No. 1/Company for three to five years, therefore, they were performing their duties on the jobs for which they have been initially got appointed, hence, under the law, they were entitled to be considered as permanent workman.
14. In my observation the services of petitioners were governed by the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Act, 2012, they were permanent employees of respondents, the petitioners performed the duties continuously for more than nine months, therefore, by efflux of time they have attained the status of permanent workman.
15. To support my view, I would like to refer the reported judgment 2017 PLC 148 passed by Hon'ble High Court of Balochistan, Quetta in a case titled as General Manager Pakistan International Airline and another vs. Matiullah and 17 others. Constitutional Petition No. 577 of 2012, decided on 29th December 2016.
Balochistan Industrial Relations Act (XIII of 2010)-- ----S.25--Grievance petition--Employees of Pakistan International Airlines Corporation-- Regularization of service- Employees employed through contractor--Employees filed grievance petition for regularization of their service which was dismissed by the Labour Court but Labour Appellate Tribunal accepted the same--Contention of employer Corporation was that employees were employees of the contractor and they did not fall within the definition of 'worker' or 'workman --Validity-- Employees appointed by the employer directly or indirectly were permanent employees of the employer after fulfillment of three months probationary period--Present employees were appointed by the contractor for discharging duties to provide the janitorial service to the employer Corporation--Mere change of contractor did not affect the services of employees--Petitioners were employees of the employer Corporation and not of the contractor-- Agreement with the contractor had been extended from time to time during the employment of employees but they remained at the job in the Corporation--Corporation had administrative control over the employees with powers of hiring and firing--Employees were also on payroll of Corporation and working in its territorial jurisdiction--Corporation had hired the services of employees just to save them from the obligation and responsibilities under the Labour Laws-- "Workman" was not merely a person employed directly by the employer but employed through contractor was also employee of the employer--No illegality or irregularity had been pointed out in the impugned judgment passed by the Laobur Appellate Tribunal--Constitutional petition was dismissed in circumstances.
I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, cited as Muhammad Zaeem Khalid and others v. Baha-Ud-Din Zakeria University and others (1995 SCMR 723), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499).
In view of the law laid down by the Hon'ble Supreme Court of Pakistan, these writ petitions are allowed. The respondents are directed to regularize the services of the Petitioners along with the back benefits, in accordance with law".
16. In another reported judgment 2021 PLC 260 (NIRC) Qadir Rasheed v. UBL & others following is held by the Hon'ble Full Bench, N.I.R.C.: ----S.33--Individual grievance--Scope--Petitioner claimed that he was appointed in the year 1979; that he served grievance notice on the employer Bank for regularization of his services; that after receiving the grievance notice, the was terminated without any reason; that the petitioner serviced another notice against verbal termination and that having no response he filed the present grievance petition--Contention of employer Bank, inter alia, was that the petitioner was not its employee rather he was a godown keeper, who was employed by barrower of the Bank-- Godown keeper had to be loyal to Bank as he was keeping eyes on pledged assets on behalf of the Bank as it was in its interest because Bank had extended finance facility against the assets; contention of Bank that godown keepers were employees of owners of pledged assets was not plausible because the owners of pledged assets would not safeguard assets of Bank--Had the petitioner been employee of a particular company he could not have switched over from one owner to another on behalf of the Bank--Besides admission of Bank that petitioner was godown keeper, the petitioner had also provided copies of various documents which were sufficient proof of the fact that the petitioner was performing duties with the Bank as daily wages/casual labourer --petitioner had attained the status of permanent workman the judgment reported as Messrs Allied Precision Engineering Products v. J. Handa Khan Maree and others (2011 PLC 286), (Quetta)--to determine the real status of a worker, as to whether he was employee of an establishment or a contractor, the .criteria was whether the establishment had administrative control over the worker: whether the establishment was based for the work done by the worker, whether the establishment had the power to reinstate and dismiss the worker, whether the work required to be performed by worker was of a permanent nature and was same related to the process of manufacturing before the finished goods were sent into market, whether payment for the worker's service was made by the establishment, whether the goods, that the worker helped to manufacture, when marketed, brought proceeds to the establishment itself whether the worker had been performing his duties and providing labour in connection with the manufacturing process and whether the contractor was a genuine person and had not been set up merely to deny the worker of the benefits under the labour laws. Petitioner/employer had claimed that no relationship of employer and employees existed between the parties; that employees and the employer had nothing to do with employment, contract and wages of the employees; at they were employees of the contractor--Cross-examination of Factory Manager of the petitioner company and Assistant Director Social Security Institution had suggested that employees were the employees of the petitioner establishment and not that of the contractor--Record had further indicated that the respondents, being employees of the petitioner, had no concern whatsoever with the contractor--During employment of the respondent/employees, a number of contractors were changed, but the respondents remained at their jobs in the petitioner's factory-- Petitioner/employer appeared to have had administrative control over the respondents with power of hiring and firing--Respondents were also on the pay roll of the petitioner--All the circumstances, individually as well as collectively having led to one conclusion that respondents were the employees of the petitioner, finding of both the Labour Court and Appellate Tribunal, declaring the respondents as employees of the petitioner establishment, did not suffer from any illegality or irregularity, which did not warrant any interference by High Court in exercise of its constitutional jurisdiction.
(Islamabad High Court): Messrs Sui Southern Gas Company Limited v. Ghulam Nabi Deeshak, Registrar Trade Unions and others. (2019 PLC 130) ----Contended that employees of third party manpower contractors/service providers are not the petitioner's employees, that under Section -19(5) of the I.R.A. only those workers who ;pad completed three months' service and were direct employees of the petitioner were eligible to participate in the referendum; that the petitioner had acquired services of workers through third party manpower contractors/service providers so as to cater to the petitioner's skilled and unskilled manpower requirements; that in this regard service agreements had been executed between that petitioner (Company) and service providers, that as per the terms and conditions of such service 'agreement, the service provider is directly responsible for the management, control and supervision of all the personnel/employees engaged by him for rendering services; that for all practical purpose, the service provider is the employer of the employees engaged by him for rendering services in the petitioner's establishment; and that the service provider is not the petitioner's agent or representative. Respondent No. 1 (Registrar Trade Union) allowed Respondent No. 3/Union's application after holding that the workers, whose names were sought to be included in the voter's list, were performing their duties under the direct control 'and supervision of the petitioner, and that the agreements with the service providers had been made only to deprive such worker form their legal rights under the labour law. Furthermore, Respondent No. 1 was also given reason to believe that a representative of the contractor/service provider was not available at the petitioner's premises to supervise the work of the workmen, whose names were sought to be included in Respondent No. 3/Union's voter's list. The documents on the record show that most of the Respondent No. 3/Union's members, whose names were sought to be included in the voter's list, had been working at the petitioner's premises for more than a decade - some of them for more than two decades. Given this fact, it cannot be held that the works performed by such workmen/workers at the petitioner's premises were not of a permanent nature. Furthermore, if the duties performed by such workers were not related to running the affairs of the petitioner/Company, it does not appeal to reason as to why such workers had been working at the petitioner's premises for such a long period of time. The agreements between the petitioner and the service providers may well provide for such workers to work under the supervision and control of the service providers but the fact remains that there was nothing brought on the record to show that it was the service provider's representative at the petitioner's premises under whose orders or dictation such workers performed their duties. Held; Since the definition of "Worker" and "workman", includes a person employed directly or through a contractor; and since the workmen, whose names were sought to be included in Respondent No. 3/Union's voter's list had been working against posts of a permanent nature; and since such workmen had been working at the petitioner's premises since more than a decade; and since there was nothing brought on the record to show that the service provider's representative had been supervising the duties performed by such workmen at the petitioner's premises.
Messrs State Oil Company Limited vs. Bakht Siddique and others (2018 SCMR 1181), it has been categorically held that employment through contractors is a fraud and sham, and is a mechanism devised to employ the services of persons indirectly with the object to avoid giving them the benefits they would have gotten had they been directly employed by the Bank. As rightly observed by the learned High Court this seemingly has been done to nullify the effect of, and bypass, the judgment reported as Ikram Bari and 524 others vs. National Bank of Pakistan through President and another (2005 SCMR 100). Furthermore, we are not persuaded by the argument of the learned counsel for the petitioner that Ikram Bari s case (supra), as relied upon the by the respondents and the learned High Court in the impugned judgment, is distinguishable on its own facts and circumstances and hence is not attracted to the instant cases. As regard the argument that there are a number of questions of fact, mentioned on page 4 to 8 of the petition, paragraph No. 2.5 (a) to (ad), which required recording of evidence, and could not be decided by the learned Division Bench in its constitutional jurisdiction, suffice it to say that we do not find any questions of fact involved in these cases which required recording of evidence; there was enough material on the record for the learned High Court to decide, in its constitutional jurisdiction, the questions raised by the respondent-writ petitioners. In light of the foregoing, we do not find any legal or factual illegality warranting interference in the impugned judgment. These petitions being without merit are therefore; dismissed".
17. The Hon'ble Apex Court has taken a similar view while passing the judgments reported in 2018 PLC 224 (Tehsil Municipal Administration vs. Punjab Labour Appellate Tribunal-II Multan), 2018 SCMR 325 (Board of Intermediate and Secondary Education, DG Khan and another vs. Muhammad Altaf and others), 2019 SCMR 233 (Board of Intermediate and Secondary Education, Multan through Chairman and another vs. Muhammad Sajid and others).
18. The Hon'ble Supreme Court of Pakistan in another celebrated case law reported in 2018 SCMR.157 in Civil Petition No. 3724 of 2015 (Abdul Ghafoor and others vs. The President National Bank of Pakistan etc) held as under: "7. In the present case also, the respondent bank cannot be allowed to persist in its similar practice and machination to exploit it workers and to defeat the spirit and purpose of law and the judgments of this Court, by describing the employment of the petitioners as a contract and calling such workers as "contractors" instead of "contract employment" and "contract employees". As the petitioners for all intents and purposes were engaged/employed by the respondent bank for manual jobs and were being paid salary/compensation for the services they rendered for the respondent-bank, on monthly basis and from year to year personally/manually, and having so served for more than one year, on several 11 months stints, have earned entitlement for regularization of their services with the respondent-bank.
8. In the circumstances, we would convert this petition into appeal and allow the same by setting- aside the impugned. judgment, and direct the respondent bank to regularize the services of the petitioners as their permanent employees".
19. In another case reported in 2018 SCMR 1405 (Board of Intermediate & Secondary Education Faisalabad vs. Tanveer Sajid and others) PLD 2011 SC 22 (Ejaz Akbar Kasi vs. Ministry of Information and Broadcasting), the Hon'ble Apex Court has held that the contract employees of PTV Corporation who approached this Court for regularization of their services on the ground that they had worked for many years on contract basis, therefore, deserved to be considered for regularization, where directed to be regularized. The review petition filed against the said judgment was dismissed.
20. In the case of Pir Imran Sajid vs. Managing Director/General Manager (Manager Finance)
Telephone Industries of Pakistan and others (2015 SCMR 1257) the Hon'ble Supreme Court of Pakistan held as under:- 2015 SCMR 1257 [Supreme Court of Pakistan] Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ Pir Imran Sajid and others-Appellants versus Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others---Respondents Civil Appeals Nos. 1359 to 1363 of 2014, decided on 18th May, 2015.
(On appeal from the judgment dated 24-4-2014 of the Peshawar High Court, Abbottabad Bench passed in Writ Petitions Nos. 276-A to 280-A of 2014)
Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref
21. The status of workman has been defined in a case law reported in 2015 SCMR 434 which for the convenience is reproduced herein below:- S. 2 (X.XXIII) "Workmen" definition of--scope--Nature of duties and functions--Designation of person could not be considered to be a factor determining his status of employment in an establishment or a be that of an "officer" or "workman" Nature of duties and functions of a person was to be considered to be the fact which would determine whether his status was that of a "workman" rather the nature of his duties and faction determined his status.
"Ss. 2(ix), (xxxiii) & 54-"Workman", status of--Grievance petition filed before the Labour Court-- Maintainability--Person who approached Labour Court for redressal of his Grievance claiming himself to be a workman and such status of workman was denied by the employer, it became a bounden duty of such person to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer--Unless such categorical evidence was led by such person, he would not be considered to be a workman and his grievance petition would not be maintainable before the Labour Forum".
22. In another case law 2007 PLC (Labour) 83 the following observation was given by the Hon'ble High Court: "For invoking jurisdiction of Labour Court, an employee was required to prove by leading positive evidence that he was 'workman' within the definition. contained in 5.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which defined qualification to bring a person within ambit of workman--For deciding the question as not, designation of an employee of for that matter the wages being paid to him, would have no material effect and were of little consequences. Documents attached along with written statement legal/objections".
23. In another citation viz PLD 1986 Supreme Court 103, the following observation was given by the Hon'ble Supreme Court: "The test for determining the question whether an employee is a workman within the meaning of various statues in the field of Labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done: the employee that would be the essential and fundamental consideration of determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to being him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted".
24. A similar case was brought before the Hon'ble Peshawar High Peshawar in W.P. No. 665-P/2018 titled as Amir Rehman & others vs. President ZTBL & others which was allowed Vide judgment dated 28-01-2021 in the following manner:-
7. We feel no difficulty in deriving a conclusion that for all intents and purposes, the petitioners are being treated as employees of the ZTBL, as there is no provision in the memorandum of association and articles association of the KSSL to have been delegated the powers to appoint the staff Even otherwise, a delegate could not delegate the powers. In this respect a look at the contract of services agreement between ZTBL and KSSL dated 20.03.2006 reveals, that the service provider and his employees shall be solely within the control of the Bank and the service provider shall be responsible for appointment, of all its wages and salaries of the employees. Wisdom in this respect is derived from the judgment dated 08.03.2019, rendered by Hon'ble Supreme Court of Pakistan in Civil Petition No. 312 of 2018, wherein the apex Court has held that: "The only point in issue raised by the learned counsel for the petitioner against Impugned judgment dated 05.12.2017 by the learned High Court in that the respondents ware contract employees of the petitioner until 2006 where-after they were recruited by an associated Company, namely Kisan Support Service (Pvt.) Limited (KSS). After leaving the employment of the petitioner, respondents cannot claim relief, against their former employer. Additional documents have been filed by the petitioner under C.M.A. No. 652 of 2018. These show that the recruitment of drivers for KSSL was carried out on 31.08.2006 by the Zonal Office Staff of the petitioner at Sukkar and not by the management of KSSL The selection panel worked for the petitioner who made the fresh appointments of the respondents for performing the same duties as before except that they were now employees of KSSL. We agree with the learned counsel for the respondents that the fresh appointments made by KSSL, are a cover for persons providing services to the petitioner. In the circumstances, we do not see any merits to the objection taken by the learned counsel for the petitioner. The petition is dismissed and leave to appeal is declined."
8. We have, therefore, arrived at an inevitable conclusion that though services of petitioners have been regularized by the KSSL, but they shall be considered to be employees of the ZTBL and shall be so treated accordingly.
9. Hence, the instant writ petition is allowed in the above terms.
25. In another case titled as "The President, NBP & another vs. Irshad Ali & two others" Appeal No. 12 (50)/2021-Q the Hon'ble Full Bench, N.I.R.C, held as under: "7. This is an admitted fact that the respondents are working in the premises of the appellant bank -since 05.06.2000 and 01.01.2005 without any break in their services. Contention of the appellants is that the services of the respondents were hired on temporary/project post through a contract but in this respect the appellants have failed to bring on record any such document from which it could be ascertained that the respondents were hired for temporary/project post through private contractor. According to the appellants the duties of the respondents are cleanliness of the bank branch. The duties performed by the respondents are of permanent nature, therefore, they under the law are permanent workmen. Perusal of the record reveals that the respondents are performing their duties continuously from. their initial appointment and since then the respondents were continuously performing their duties in the appellant bank, therefore, under the Standing Orders, Ordinance, 1968 they have attained the status of permanent workmen. Reference in this regard is placed on reported case laws 2020 PLC (CS) 581, 2016 SCMR 1375, 2018 SCMR 325 wherein it has been held that employees appointed by the employer directly or indirectly were permanent employees after fulfillment of three months of probation period. Hence, it declared that the respondents are permanent employees of the appellant bank, therefore, they entitled for all the benefits, allowances, promotion, salaries and other allied benefits as available/given to the permanent employees. No illegality has been pointed out in the impugned order, hence the instant appeal having no force is hereby dismissed".
26. As stated above, the Respondents No. 1 & 2 admitted the initial appointment of petitioners in the Company, whereas nothing has been provided by the respondents through it could be ascertained that the petitioners services have been terminated by extending good cause/reason, the Respondent No. 2 has relied upon domestic ex-parte enquiry against the petitioners alleging misconduct, but such misconduct has not been explained, whereas the petitioners who were working with the Respondent No. 1, but he too extended no satisfactory cause for termination of the services of petitioners.
27. The foremost aspiration of conducting departmental inquiry is to find out whether a prima facie case of misconduct is made out against the delinquent worker for proceeding further. The guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time it is also required to be seen by the Court as to whether due process of law or right to fair trial was followed or ignored which is a fundamental right as envisaged under Article 10-A of the Constitution. A distinction also needs to be drawn between a regular inquiry or preliminary/fact finding inquiry. A regular inquiry is triggered after issuing show cause notice with statement of allegations and if the reply is not found suitable then inquiry officer is appointed and regular inquiry is commenced (unless dispensed with for some reasons in writing) in which it is obligatory for the inquiry officer to allow evenhanded and fair opportunity to the accused to place his defense and if any witness is examined against him then a fair opportunity should also be afforded to cross-examine the witnesses, whereas a discrete or fact finding inquiry is conducted at initial stage but internally to find out whether in the facts and circumstances reported, a proper case of misconduct is made out to initiate disciplinary proceedings. The standard of proof looked-for in a departmental inquiry deviates from the standard of proof required in a trial. In the departmental inquiry conducted on the charges of misconduct, the standard of proof is that of "balance of probabilities or preponderance of evidence" but riot a "proof beyond reasonable doubt", which strict proof is required in trial. The doctrine of natural justice communicates the clear insight and perception that the authority conducting the departmental inquiry should be impartial and delinquent worker should be provided fair opportunity of being heard.
28. In view of the above discussions and observations made by the Hon'ble High Courts and Apex Court, the petitions No. 4B(37)122-Q titled as Muhammad Nawaz vs. M/s. Cadbury Pakistan & others, No. 4B(39)/22-Q titled as Javaid vs. M/s. Cadbury Pakistan & others, No. 4B(06)/23- Q titled as Zeeshan vs. M/s. Cadbury Pakistan & others, No. 4B(07)/23-Q titled as Nasrullah vs. M/s. Cadbury Pakistan & others No. 4B(38)/22-Q titled as Muhammad Anwar vs. M/s. Cadbury Pakistan & others No. 4B(08)/23-Q titled as Muhammad Ishaq vs. M/S Cadbury Pakistan & others No. 4B(09)/23-Q titled as Khadim Hussain vs. M/s. Cadbury Pakistan & others, No. 4B(02)123-Q titled as Abdul Ghaffar vs. M/s. Cadbury Pakistan & others, No. 4B(03)/23-Q titled as Shazada Khan vs. M/s. Cadbury Pakistan & others, No. 4B(05)123-Q titled as Muhammad Akram vs. M/s. Cadbury Pakistan & others are allowed, consequently the Respondent No. 1 is directed to regularize the services of above petitioners from the date of their oral termination/gate stop without any back benefits. Since the petitioners in case No. 4B(04)/23-Q titled as Amresh Kumar and others vs. M/s. Cadbury Pakistan & others and Case No. 48(10)/23-Q titled as Zulfiqar vs. M/s. Cadbury Pakistan & others did not prove their employment relationship with the respondents through reliable and dependable evidence or appeared before the Commission, therefore, these two petitions are dismissed. The petitions are disposed of in the above terms. There is no order as to costs. Files after completion and compilation be consigned to record.
Given under my hand and seal of the Commission on this 20th February, 2024.