' The circumstances in which this constitutional petition has been filed, in a nutshell, are as follows :
2. The present petitioners and some more employees of the respondent No, 2 filed separate applications under section 25-A of the Industrial Relations Ordinance, 1969, asking for their re- instatement in service. Their contention was that they had come to grief and lost their services, because the respondent No, 2 was espousing the cause of their rival Union, which was dubbed by them, as a pocket Union, in the referendum for the determination of the Collective Bargaining Agent. Since the text of the application will be of some importance in the case, it might be mentioned that, after narrating the tactics employed by the respondents to achieve their object and the consequent harassm ent they had to suffer, came paragraph 7, which reads as under "(7) That in the above context and in furtherance of malice and unfair labour practice the Employers/Respondents all of a sudden, without prior notice and in perfect violation of the provisions of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, closed down doubling section w,e,f, 22-12-1972, resulting into unemployment and ouster from service of 19 workers, all being either the members or office- bearers of our Union and the applicant is included in those ousted workers."
3. The respondent No, 2 in the written statement filed by them maintained that the present petitioners Nos. 2 and 5 to 15 (these are the only persons from this set who matter for the decision of this petition) were the employees of independent contractors, namely, Akhtar and Sultan, and therefore they could have no cause of action as against them. It was admitted, that the petitioners Nos. 1, 3 and 4 were their employees. As for the rest, apart from other contentions, it was urged that the grievance procedure as prescribed under section 25-A had not been followed.
4. The Junior Labour Court repelled the contentions of the respondent. It doubted the genuineness of the lease deed. And, otherwise too, was of the opinion that the petitioners 2 and 5 to 15 had been employed by the respondents very much before the period of lease, and therefore a case for re- instatement had been made out. It was further found that the respondent No, 2 had failed to produce the charge-sheet, enquiry letters, or enquiry proceedings, in regard to the others and therefore there was no material to justify their retrenchment, or, dismissal.
5. The respondent No, 2 took an appeal to the labor Court, which came to be allowed by the Presiding Officer by his order dated 19-5-1973. As regards the petitioners Nos. 1, 3 and 4, the learned Presiding Officer found that the case set up by them in evidence was very much different from the text of the applications under section 25.A of the 1. R.
0. And, under the circumstances, the order passed by the labor Court in regard to them was unsustainable. As regards the remaining petitioners, it was observed that, 9n their own showing, they admitted to have worked with the contractors, who used to pay the wages to them and also grant them leave. He was also of the opinion that the lease deed did not come into existence in 1972, but, according to the Report of an Officer of the labor Department examined in the proceedings, these contractors were in the field from 1467. As a result of these findings, the impugned order was set aside, and the appeal was allowed, resulting in the present petition.
6. First I will deal with the case of the petitioners Nos. 2 and 5 to 15. Mr. A. A. Fazeel learned counsel for the respondent No, 2, has taken me to the evidence led in the case, and, in particular, to the cross-examination of these petitioners. Noor Muhammad has stated that ' I used to receive my wages from Sultan Contractor and my attendance was marked by him. Munna Khan has stated that "I am working with contractor Akhtar for the last about five years", and that is true about the others as well Hasham Hussain also added that he was also getting leave from Sultan. The question which, therefore, needs consideration is, whether, in the face of these clear admissions, the respondent No, 2 can be saddled with the obligations under Standing Order 20 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which reads as under :- "(20) Liability of employer.-The employer of the industrial and commercial establishment shall personally be held responsible for the proper anu faithful observance of the Standing Orders, whether or not the workmen of such establishment are employed through contractors."
7. The matter came for consideration in the case of Shahab Industries Ltd., Karachi v. Shah Nimroze
(1) before Mr. Justice lnamullah Khan of the Labour Appellate Tribunal. The tests to find out, whether a person was in the employment of a certain industry, or not, were enumerated these as under :-
(1) Whether the Industry has administrative control over the worker
(2) Whether the industry prays for the work done by the worker ; and
(3) Whether the industry has power to re-in state and dismiss the worker.
' It was further observed that a distinction has to be made between two situations, "the one where a worker is employed through a contractor and the other where the contractor himself employees workers for carrying on the contract which he has taken." In the latter case, the industry would be paying only for the finished goods and could not be said to have any control or supervision over the workers, and as a logical corollary, the employees will be the employees of the contractor alone. This principle is also available from Messrs British India Engineering Works v. Akhtar Hussain Khan and other (2) which was a case dealing with the provisions cf the Industrial Disputes Act of 1947. It was observed that "the prima facie test for he determination of relationship between master and servant is the existence of the right in the matter to supervise and control the work done by the servant, not only in the matter of direction what work the servant is to do, but also the manner in which he shall do his work." Reference was made also to the case of Dharangandhra Chemical Works Ltd. v. State
(1) PLJ 1973 Tr. C. 269 (2) PLD 1959 Kar. 403 ' of Saurashtra and others (1) which referred to the case of Harbour Boards v. Cogging & Griffith (Liverpool) Ltd. (2) at page 23, in which the following observation was made "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question."
8. As the matters stand, the conclusion reached by the learned Presiding Officer cannot be open to any exception. Otherwise too, the fact, whether the said petitioners were the employees of the contractor, of the respondent No, 2, will be a question of fact, and findings of fact, as held in the Karachi case referred to earlier, cannot be disturbed in a constitutional petition.
9. As regards the petitioners Nos. 1, 3 and 4, the applicants in very clear terms mentioned that they had been removed from service as a result of the closure of the doubling section on 22-12-1972.
Nazar Muhammad, the petitioner No, 1 in his deposition had mentioned his retrenchment on 15-9- 1972, while the other two put it at 21.11-1972, and for totally different reasons. The petitioners are themselves to blame for the consequences which have ensured. Under the circumstances disclosed, the order in regard to them also, will be in the exercise of lawful authority. It is, therefore, not necessary to examine the further contention of Mr. A. A. Fazeel, that the application of Munna Khan, petitioner No, 2, would be barred under subsection (6) of section 25-A of the I. R.
0.
10. In the result, the petition is dismissed, but there will be no order as to costs.
(1) AIR 1957 SC 264 (2) (1947) 1 A C 1