This is an appeal preferred against an order dated 14-12-1974 passed by the learned Presiding Officer. Junior Labour Court, Rawalpindi on separate petitions filed by 19 employees through General Secretary of the Union. All the petitions were consolidated and evidence of the parties was recorded in Mulazim Hussain's petition. Petitions were filed under section 25-A of the I. R. O., 1969 all of them were accepted by one order, hence this appeal.
2. Brief facts giving rise to this appeal are that one Mohammad Rafique was employed in the Fazal Vegetable Ghee Mills as an ordinary worker by the previous Management. But through an agreement dated 15-1Q-74 he became a contractor of the Tin Shop. In this Tin Shop the respondents are the employees. This Tin Shop is one of the sections of the appellant concern where the tin manufactured is used for filing and soldering the vegetable ghee manufactured in the appellant concern. Respondents through their Union made petitions before the Junior Labour Court and their petitions were to the effect that they are permanent workers of the appellant concern but are being deprived of overtime wages, house rent, conveyance allowance and encashment of leave and other benefits available to the permanent workers of the mills. As they are permanent workers, this is their guaranteed right by law to be entitled to such facilities like other permanent workers of the mills.
3. Learned counsel for the appellant raised manifold objections in the written reply of tae Management. They have also been argued before me. In the first place he had urged before me that as this is a taken over concern and Managing Director has been appointed by the Government and under the provisions of Hydrogenated Oil Industry (Control and Development)
Act; 1973 no order of the Managing Director can be challenged if any Court and further that provisions of this Act override all labour laws such as Industrial Relations Ordinance and Standing Orders Ordinance. In the second place learned counsel has urged that respondents are not the employees of the appellant. Therefore, their applic3ttons before the Junior Labour Court were misconceived. In the third place he has claimed that respondents are employees of the contractor, therefore he should have been impleaded as a party. In the fourth place he has contended that no right guaranteed by law has been violated, so question of enforcement of any right does not arise.
In the fifth place he has contended that the C. B. A. Union had raised this issue through a demand notice but as it was dropped by the C. B. A Union therefore no individual employee could re-agitate the matter. In the sixth place learned Counsel for the appellant has agitated that no joint petition by the respondents and the Trade Union was maintainable, and lastly that the respondents do not fall under the definition of workmen.
4. So far the first objection, the provisions of Act No. LXV of 1973 are concerned (sic), I agree with the learned Counsel of the appellant that pro visions of this Act cannot be challenged in any Court. But there is nothing t this provision to prevent a workman from the redress of his grievance if any under Industrial Relations Ordinance because neither the Act would to called question nor the action of the government, under this Act is in dispute before the Labour Court. So far as the second part of the objection is concerned, any order passed by the Managing Director in good faith under the said Act cannot be challenged in any Court but if an order is passed b the Managing Director under some other laws, for example labour laws, the it can be challenged. Section 16 of the said Act, is to the effect that tern and conditions of service are protected under the said Act. So, if the Managing Director changes the terms and conditions of service then his order is very much challengable under the labour laws. Under Act No. LXV of 1973 operation of labour laws has not been excluded. In this connection learned Counsel for the respondents has placed reliance on PLJ 1974 Kar. 253 where such objections were raised and were overruled. Now I have given my finding on the question of jurisdiction. I would first deal with the case on merits and answer to the other objections would perhaps be covered by my findings on merits. Mr. Muhammad Rafique Contractor was not made a party. But he was examined as P. W.
18. He has stated that the machinery of the Tin Shop is the property of the Fazal Vegetable Ghee Mills, Sui Gas and electric bills are paid by the mills. Tin sheets are supplied by the mills. A Foreman is there on behalf of the mills to keep the machinery in a running condition. A helper is also there to the Foreman to clean the machinery and the Foreman checks the finishing goods. Management had issued cards to the employees of the Tin Section to supply them vegetable ghee and soap at subsidy rates, just as is done in the case of employees of other sections of the appellant concern so much so that contractor himself had this facility. He is being paid rent also. He is not an income-tax payee. He has no firm registered or unregistered to do contractor's job. He has admitted that he has never dismissed any worker. After becoming a contractor, persons who were already working there were kept by him. According to clause 9 of the agreement, persons who were already employed in Tin Shop would be his responsibility. This is also admitted position of the parties that workers of Tin Shop section received bonus alongwith other employees of the appellant concern, Participation Fund was also paid to the workers last year.
Mohammad Rafique contractor was also paid this fund Workers of the Tin Shop section have got their Identity Cards, some of them are placed on the file. In the column of designation they have been shown as workers of Vegetable Ghee Mills in the section of the Tin Shop. Arrangement of giving Tin Slop on contract just appears to have been done to deprive this class of employees from certain facilities which are guaranteed by law for which they are entitled alongwith the other employees. If this Contractor would have been made a party he would not have said anything else.
His position from his own statement appears to be that of an employee. More particularly when he got bonus, participation fund and house rent. He has been introduced as a Contractor only to circumvent the Industrial Laws to deprive persons em--ployed in the Tin Shop. He does not invest any money. He has not got machinery of his own. Even the electric bills and the sui gas bills are paid by the Management. His position is that of a piece rated workman or a daily raid workman and not that of an independent contractor. A photostat copy of attendance register of the Tin Shop employees has been placed on record and a photostat copy of attendance register of the appellant concern has also been placed on record. Attendance register of the Management bears Fazal Vegetable Ghee Mills Employees, whereas register of the contractor does not show anything that this is the register of Contractor.
5. For the foregoing discussion, objections Nos. 2 and 3 of the appellant that the petitions were misconceived, as workers are not the employees of the appellant concern does not hold good. So does objection No. 4, as through petitions workers have prayed for enforcement of a right guaranteed by law. So far as objection No. 5 is concerned, I have seen the demand notice and the agreement on it, demand was that system of contractorship should be abolished and by agreement it was not agreed to by the Management. They simply put up the workers by saying that conditions of service of the Tin C Section would be improved. So far as objection No. 6 is concerned, petitions have been filed by the workers through General Secretary of the C. B. A. Union which is very much allowed by law. So this objection has also no force. Last objection is that respondents do not fall under the definition of workman. This is the admitted position of the parties that respondents work in the Tin Shop. So they are workers under the Industrial Relations Ordinance as well as under the Standing Orders Ordinance.
6. For the foregoing discussion, I find no ground to interfere into the judgment of the learned Presiding Officer, Junior Labour Court. So it is hereby maintained and appeal is rejected.