DECISION These appeals from the composite order of the Labour Court No. 3, Karachi reinstating the petitioners, but without back benefits arise in the following circumstances:
2. It was alleged by the petitioners that they were in the employment of the respondents, though in different categories from 1986 onward. On or about the 26th of May, 1989 they bad decided to form a trade union and on the 28th of May, 1989 an application had been made to the Registrar of Trade Unions for its registration. Apprised of this resolve of the petitioners, their services were unceremoniously terminated by the respondents, on the 30th of May. Aggrieved by these wrongful orders they had sent grievance notices to the respondent and as their words remained unheeded they had been constrained to file the petitions.
4. In the Written Reply filed on behalf of the respondent it was alleged that the petitioners were the employees of M/s. Alkhair Services, a Contractor of theirs and under the circumstances the relationship between the parties as employer and employees did not subsist. The petitions were therefore liable to be dismissed on that score.
5. The petitioners were their own witnesses. Out of them Muhammad Sharif was cross-examined on behalf of all of them. Syed Saeed Hamid Proprietor of Alkhair Services, Fasihul Karim Siddiqui the General Manager (Personnel) of the respondent, and Ghulam Qadir appeared on behalf of the respondent.
6. The Labour Court for the reasons given by. It allowed the petitions, but without back benefits, as they had not said anywhere that they were jobless, culminating in these appeals.
7. The version as furnished by Sharif and the other respondents was that they were in the employ of the appellant from 1986 onwards; they had nothing to do with M/s. Alkhair Services. To rebut their case, the appellants had examined Syed Sayeed Hamid, the contractor.
8. He is the son of Syed Muhammad Hamid, who is an employee of the appellant in the Administration Department. He had graduated in commerce only in 1987. On his own showing he had no experience of the body building of vehicles. Nor can it be said that he had any experience of any sort, which could stand him in good stead in the execution of the contract.
9. He has made a candid admission that he could not say whether the services of the respondents had at all been terminated by the appellant. Anyway Sharif had not received any appointment letter from him. Nor did he have anything different to say in regard to, the other respondents.
10. According to him the respondents and his other workers used to be served their lunch and tea by the appellants, but the charges thereof used to be adjusted from his bills. No construction however was even attempted to be put on these averments.
11. He goes on to say that the job used to be assigned to the workers by the appellant and the bills submitted by him to the appellants were only in respect of the labour charges. He did not maintain any ledgers, or cash books no inward or outward register either.
12: He went on to say that the quantity of the work is maintained by the company and they checked the quality as the goods belong to the respondent. On the basis of the quantum of work, both at the Assembly Plant and Body Plant, I submit the bills to the respondent on the basis of the quantum of work, maintained by the company. The computer sheets meant for the quantum of work are being supplied to us, on the basis of which, we are preparing and submitting the bills to the company. The bills submitted by me, do not contain the Computer Sheet details or reference. At present I cannot give the details of the quantum pertaining to the bills, produced by me in the Court. The bills submitted by me are in respect of labour charges only.
13. It had better be read with the recital of the Agreement, which says:-- "And whereas the Party of the Second Part (M/s. Alkhair Services) has specialised in the performance of the job speed in the attached schedule and is well-equipped with necessary material and personnel in the performance of the specified jobs and is agreeable to enter into contract etc. Etc."
14. Then there is the evidence of Fasihul Karim Siddiqui, the General Manager (Personnel and Administration) of the appellant company. He has been working in this capacity from 1-2-1986. He does not say that the services of the respondents had been terminated by the appellant though he does not forget to say that "M/s; Alkhair Services in fact and law were the employees of the applicant". He owns that the contractor used to pay the contribution of Employees' Old-Age Benefits, through them. Even the wages according to him are determined by the Contractor, but the same are being paid by the respondents as per clause 10 of the Agreement".
Clause 10 of the Agreement dated 2-10-1988 reads as under:- "X. That under the instructions of the Party of the Second Part in order to avoid on/or minimise handling of cash on the part of the Party of the Second Part and/or for any other administrative or other reasons as may be deemed fit and proper by the Party of the Second Part the Party of the Second Part may instruct the Party of the First Part to pay wages of the workmen employed by the Party of the Second Part and such wages as determined by the Party of Second Part and to such workmen as may be specified by the Party of the Second Part, shall be paid by the Party of the First Part which whole amount shall be deducted and/or adjusted from the bills of the Party of the Second Part. It is however clearly understood and agreed that such payments by the Party of the First Part will not be construed or treated as liability to pay wages to the workmen employed by the Party, of the Second Part. Likewise under the instructions of the Party of the Second Part, the Party of the First Part will make payments directly to all Authorities under the laws of the land including Labour Laws in respect of obligations of the Party of the Second Part and all such payments/contributions made by the Party of the First Part under the instructions of the Party of the Second Part shall also be liable to be deducted and/or adjusted from the bills of the Party of the Second Part and it is clearly understood, agreed and stipulated that the payment of such contributions under the laws of the land including Labour Laws shall not imply as a liability of the Party of the First Part."
15. To say that M/s. Alkhair Services were not dealing with cash because of the general insecurity in the town is too much of a demand on our credulity. The truth however comes to the surface from the perusal of application made by the appellants before the Labour Court, under Order XVI, Rule 1 read with section 151, C.P.C., wherein M/s. Alkhair Services were said to be "a Contractor for the supply of labour".
16. According to clause IX of the Agreement the appellant "shall be at liberty to terminate the Contract or any part thereof during its operative period without assigning any reasons". And this was with impunity.
17. Patently the so-called contract was nothing but a smoke-screen to deprive the workers of their lawful wages, and benefits given to them under the Labour Laws. It was observed in Taj Din and 44 others v. Punjab Labour Court No. III, Lyallpur and another (1976 PLC 758) that "a Contractor is a person who in the pursuit of an independent business undertakes to do specific job of work for other persons without submitting himself to their control in respect of the details of the work". That can hardly be said in respect of M/s. Alkhair Services Ltd.
18. It was further contended by Mr. Shahani that the Registrar had refused to register the respondents' Union, as according to him the respondents and his colleagues were not in the employ of the appellant. This order of the Registrar came long after the doors of the Company had been closed on them. Be that as it may, all I need say is that this finding will not be binding on the Labour Courts and the Tribunal.
19. I am clearly of the opinion, that the impugned order cannot be found fault with. I will therefore affirm the same and dismiss these appeals.