DECISION ' These two appeals are filed against the two orders both dated 16-10-1990, passed by the learned Presiding Officer, Sindh Labour Court No,VI at Hyderabad, whereby the grievance petitions of both the appellants were dismissed. As the facts and points of law involved in both the appeals are same and the respondents are also same, I intend to dispose of the appeals by the single decision.
2. I have heard Mr. S. Fasahat Hussain Rizvi, the learned Advocate for the appellants and Mr.Bashir Awan, the learned Counsel for the respondents and I have also gone through the record and proceedings of the case.
3. The brief facts leading to these appeals are that both the appellants were working as Godown- Keepers on various godowns where goods pledged by various parties with the respondents bank were stored for safe custody. Both the appellants claimed to be employed by the respondents and therefore gave grievance notices to the respondents for payment of bonus and other benefits under the Wage Commission Award, whereupon they were gate stopped and were prevented from performing their duties as Godown Keepers. After serving grievance notices upon the respondents, both the appellants filed their grievance petitions, before the Labour Court, which were resisted by the respondents on the ground, that the appellants were not their employees, but they were employees of commercial concerns whose goods were pledged from time to time with the respondents bank and their salaries were also debited to the account of such concerns and credited in the account of the appellants in the bank from which account they took their salary.
4. Only question that requires consideration in this case is whether the appellants as Godown- Keepers, were employees of respondent Bank or they were employees of various parties whose goods were pledged with the Bank and were stored in the Godowns.
5. Section 172 of the Contract Act, 1961 defines pledge. It provides as under:- "172.The bailment of goods as security for payment of a debt or performance of a promise is called 'pledge.' The bailor is in this case, called the 'pawnor'. The bailee is called the `pawnee'."
6. Bailment is defined under section 148 of the Contract Act, 1961 as under:- "148.A 'bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them."
7. Keeping these two definitions, in view, it would be clear that pledge is the delivery of goods by the pledgor to the pledgee by way of security, upon a contract, that they shall, when the debt is paid or the promise is performed, be returned or otherwise disposed of according to the directions of the pledgor.
8. Thus, when the goods by various parties were pledged with the Bank, they came into possession of the Bank and they were stored in the godowns on behalf of the Bank viz. Respondent. Under section 151 of the Contract Act, 1961 in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
Under section 158 of the Contract Act, where, by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, the bailor shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.
9. Thus, the legal and factual position that emerges is, that the goods were pledged by various commercial concerns with the respondent Bank from time to time. Though ownership still remained with such commercial concerns but the possession of goods remained with the respondent Bank who was responsible for the custody of goods but was entitled to recover expenses incurred by the respondents upon safe custody of such goods from owners.
10. The evidence on record does not show, nor it is the case of any parties, that any appointment order as Godown-Keeper was issued to the appellants by any of those commercial concerns.
According to Mr. Muhammad Jameel Khan witness for the respondents, the respondents engaged appellants as Godown Keepers on behalf of the parties and were paid the salary from the account of those parties. This admission clearly shows, that the appellants were hired by the respondents to act as Godown-Keepers with respect to the goods of various customers, which were in their possession, though the salary of the appellants was recovered from the pledgors as provided under the law. The act of recovery of the salary and credit of same in the account of appellants was also admittedly made by the respondents and there was no direct control of the respective commercial concerns over the appellants.
11. The word 'workman' is defined under section 2(1) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called Ordinance) as 'any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.' It is not disputed that the said Ordinance is applicable in the establishment of the respondents. The facts on record, as discussed above, clearly show that the appellants were hired by the respondents to work as Godown-Keepers of the godowns where goods pledged by commercial concerns with respondents were kept for which work the appellants were paid salary, though the same were recovered by the respondents from the pledgors as provided under law. The appellants would therefore be deemed to be workmen employed by the respondents.
12. According to the appellant Ishrat Iqbal he was working as Godown Keeper since 13-5-1980 and according to the appellant Shakeel Haider he was working as Messenger/Godown Keeper since 14- 10-1986. Both the appellants have admitted in cross-examination, that there used to be different number of Godowns under their control at different times. Thus, there were no permanent godowns of the respondents, where the appellants were employed. They were employed from time to time at various godowns as and where the goods pledged were stored by the respective parties, which as stated by Mr. Bashir Awan, learned counsel for the respondents, used to be in the premises of the parties concerned. There is no evidence to show that there was any permanent post of Godown-Keeper in the respondent's establishment. Therefore, the appellants cannot be said to be working against a work of permanent nature likely to last for more than nine months to acquire the status of permanent workman, as defined under Standing Order 1(b). The mere length of service would not be a criteria or test for determining the nature of work to confer right upon the workman to acquire the status of a permanent workman. Reliance is placed on 1990 SCM R 1539, wherein it was held 'length of employment by itself having not been made ground or test for determining nature of work where work of employee was not of a permanent nature, however, long may be his employment, he could not be taken to he a permanent workman."
13. The sum total of all discussion leads to the conclusion, that the appellants were employee of the respondents but had not acquired the status of permanent workman. However, under the Standing Order 12(3) their services even as temporary employees could not have been terminated without any order in writing showing explicit reasons for such termination of service. Admittedly no order of termination in accordance with Standing Order 12(3) had been issued in the case of the appellants.
As such the termination of their services was illegal and was not tenable.
14. I, therefore, allow these appeals and set aside the impugned orders of the learned Labour Court as well as oral orders of termination of services of the appellants and direct their reinstatement in service. However as during the intervening period, the appellants have admittedly not rendered any service to the respondents and there is no evidence to show that during this period they were sitting unemployed or were gainfully employed, I award them 50% back benefits. The order to be implemented within one month.