DECISION This is an appeal against an Award of the learned Presiding Officer, Labour Court No. ft, dated the 2nd of May, 1974 in an application under section 32 (1-A) of the Industrial Relations Ordinance, 1969 (hereinafter called the 'Ordinance'). The facts giving rise to the present appeal briefly put are these. On the 16th of June, 1972 a Notice under section 26 (1) of the Ordinance was given to the appellant-company which were followed by Strike Notice dated the 29th June, 1972.
The application under section 32 (1-A) of the Ordinance was made on the 20th of July, 1972. It may be mentioned at this stage that the definition of 'workman* had already undergone a change in April, 1972 whereby workers employed through Contractors were workers within the definition of workmen for the purposes of the Ordinance.
2. The respondent-Union had raised as many as eight demands. The case of the appellant-company was that the respondents are not workers but only Contractors or Suppliers. The appellant-company has only two establishments one at Lahore and the other at Karachi, and that Omarsons Crusher Plant Mazdoor Union is a registered Union and is 'Collective Bargaining Agent, of the workers of Omarsons Limited and that they do not recognise the respondent-Union.
3. The most important point to consider is as to whether the respondent can be said to be the workers of the appellant-company. It is a question of fact as to whether they are the workers of the appellant or not. It will always depend upon the evidence produced by the parties and the circumstances. In the present case there is overwhelming evidence to prove that the respondents are only 'Contractors' or 'Suppliers.' In this connection reference may be made to Exh. R-l dated June, 1974. It is a Work Order to Mr. Zanjeer Khan. The Work Order gives the various terms. It gives the rate of the boulders to be supplied by Mr. Zanjeer Khan. It gives the choice of the quarry pit to be selected by him. It is noteworthy that Zanjeer Khan is doing the work at least for the last ten years. Mr. Zanjeer Khan claims to be the General Secretary of the Union. Exh. R-l is signed by Zanjeer Khan in English. In various clauses Zanjeer Khan is referred to as 'Contractor'. Item No. 6 of Exh. R-l is particularly worth mentioning. It runs as under :-- "Under the terms and conditions of the Workmen's Compensation Act you will be entirely liable for any claims that may be put forth by labour engaged by you. Employment of, or changes in your labour will be your responsibility." Item No. 7 reads as under :-- "Tools, plant, or other supplies will not normally be issued by the Company to the contractor for the work. However, in the interest of the work, the Company may issue hand tools to the contractor at its own discretion, and charge the book value of such tools to the contractor's accounts," m Exh. R-2 is the receipt of the payment of Rs. 2,799.83 by Mr. Zanjeer Khan.
It is also signed by him. It is supported by Exh. R-3, a stamped receipt signed by Zanjeer Khan.
Similarly Maher Taj is also Contractor or Supplier .that is so is supported by Exh. R-4 dated December, 1963. He has also received Rs. 2,877.75 vide Exh. R-5 dated the 13th of February, 1973.
Another Contractor Mr. Muhammad Murid has received Rs. 2,970.75 on the 13th February 1973 (page 83 of the record of the Labour Court). Jannat Shah is another Contractor or Supplier who has received Rs. 3,040.63 on 13-2-1973 (at page 91 of the record). Zanjeer Khan has also received Rs.
2,912.70 vide page 93 of the record.
4. There is another important letter Exh. R-6, addressed to the Mukhtiarkar, Karachi by Mr. Zanjeer Khan in 1970 admitting that he is only a boulder supplier of the appellant Company. This was addressed to the Mukhtiarkar in reply to his Notice to vacate the plot of land in which he was residing. A copy of the letter addressed to the Mukhtiarkar was also sent to Omarsons Limited. Similarly Maher Taj also admitted that he is supplying boulders to Omarsons Limited and in that connection was staying on the plot about which notice to quit has been given and that he will have no objection to vacate the said plot if it is allotted to Omarsons Limited or any other party. This letter is at page 99 of the record of the Labour Court. Similarly there is a letter by Toor Khan, Contractor, Omarsons Limited, Exh. R-7 at page 97. There is a letter by Master Muried, Contractor Omarsons at page 103. Lastly there is a letter by Jannat Shah, Contractor, Omarsons Limited, at page 105.
5. There is a very important Notice to Mr. Zanjeer Khan, dated the 18-5-1972 Exh. R-8, page 107. The contents of the letter would disclose that he was creating trouble by abusing the officers of the Company and has resorted to the Gherao of the factory through his workers on the 17th of May 1972. The Notice requests Mr. Zanjeer to stop further excavation of the stones from the Company's pit and vacate premises within one month of the date of receipt of the letter. It is signed by Zanjeer Khan on behalf of all the 'Contractors'. Zanjeer Khan was present in Court and I asked him to read out what he had written in Urdu. He expressed his inability to read it.
However I can read the following :-- "r- uiyh (J" 4*5" i_--J' There is another letter addressed to Omarsons Limited Exh. R-9 dated 12-6-70 which is to my mind very important one. It is signed by all the six Contractors who now claimed to be Jamadars of Omarsons Limited. The relevant parts read as under :-- . "We the undersigned are working as a contractor with you on University Road, Karachi for taking the stones. Sir, we giving the some facts, that we want to take our bill in the lst date to 7th date of the every month. It is bring to your kind notice that there are a lot of stones are not in a good position or good quality, your kind honour will be enquired personally at the spot, that there are not a good stones and we are not responsible for the bad stones. All the responsibilities of the bill will be fixed on you, because we are not responsible for the same. It is also bring to your kind notice that at the site there is not Medical facilities to our labour, we could not support them medically because there is not arrangement of any Vehicle and Van or the injured persons to take him to hospital. We may kindly request to you that your honour will be arrange the any Vehicle or Pick Up Van for taking the persons to medical aid or to Hospital. We have not Work Order for our work which we are doing at the Site and we haven't Itt any record of our work, in other words we have not any proof of our work. Your kind honour will be arranged the new procedure of Work Order to do the same. It is to bring to your kind notice that your Manager named Azhar is giving trouble to our labours, always abused to our labour. Sir, we are not responsible for any case. He has not concerned with our labour if he is feeling any trouble from our labour, it is duty of him that he ask us about any trouble, and no concerned without labours. It is signed by (1) Mushqar Mureed, (2)
Zanjeer Khan, (3) Maher Taj, (4) Jannat Shah, (5) Toor Khan, (6) Kakoor Khan. Zanjeer Khan has signed it in English and four others in Urdu and the last one has put his thumb- impression. The contents of the above letter goes to establish that the six persons who now claim to be Jamadars are only Contractors and not Workmen. It appears to me that after the change in the definition of Workmen in April 1972 that these persons have been encouraged to file an application under section 32(1-A) of the Ordinance. It is also noteworthy that none of the workers has been produced.
I would hold that no relationship of "Master and Servant" exists between the parties and that the Union has failed to establish that they are workmen of the appellant-company. The Award, in these circumstances, is set aside.