' NAZIM HUSSAIN SIDDIQUI, C.J.---By consent, the petition is admitted for its disposal on merits.
2. 24 petitioners, named in the petition, have impugned order dated 12-5-1998 and decision dated 28-5-1998 of Sind!? Labour Appellate Tribunal. By order dated 12-5-1998, the name of respondent No,2, ' Muhammad Hussain, Contractor was ueleted from original grievance petitions of the petitioners and also from appeal which was pending before it. By decision dated 28-5-1998, the appeal preferred h. The respondent No,1, M/s. Pak Suzuki Motor Company Limited against the order dated 10-11-1997, passed by learned Labour Court No,5, Karachi, was allowed and the order of Labour Court was set aside.
3. The case of petitioners, in brief, is that since the time of their appointments they were denied all the rights and fringe benefits admissible to them under the labour laws and even the appointment letters/orders were not issued to them by respondent No, 1 . Benefits such as medical facilities, uniform allowance and education allowance were totally denied to them. It is alleged that on 18- 10-1992, they had sent their written representation to respondent No,1 and on the following day viz. 19-10-1992 their services were verbally terminated. They sent grievance notices dated 15-1-1993 to respondents Nos, 1 and 2. Thereafter, they filed separate applications for reinstatement and their cases were consolidated, by order dated 17-3-1994, and learned Labour Court by order dated 10th November, 1997 allowed the petitions and dismissed of those, who did not pursue their cases.
4. Above order of Labour Court was set aside by learned Appellate Tribunal by decision dated 28- 5-1998, which has been impugned in this petition.
5. The case of respondent No,1, in brief, is that the petitioners were engaged employed by respondent No,2, as per agreement dated 5-1-1992 (Annexure-A to the written statement) and its clauses 9, 10, 11, 12 and i9 are as under: "9. That for fulfilling this contract, the contractor shall employ his own workmen/personnel. The contractor shall alone be responsible to authorise, allow, or appoint any number of persons which may be required to fulfil this contract in the said premises or outside on his behalf. The Company shall have no connection or interference whatsoever with the person so appointed allowed or authorised and kept by the contractor in relation to this contract.
10. That the contractor shall have the responsibility and authority, without any interference whatsoever from the company, to regulate timings, take works, appoint, discharge, terminate, lay off, retrench, take disciplinary action, etc., against his employees/personnel employed by him in relation to this contract.
11. That the contractor has undertaken the responsibility to provide and allow at his cost to all his personnel working with or under him in the said premises the same wages/salary benefits, or other amenities as are provided and prescribed under various labour laws and enactments in operation and in force at the moment or that may be in force from time to time. If thereby any default, contravention, difference, dispute or any matter arising or claims so arise relating to any right or benefit allowed or available to the employees persons/personnel of the contractor, the same shall be claimed from and paid allowed by the contractor entirely at his own cost. The contractor shall maintain the requisite records and registers required in this regard.
12. That the contractor shall maintain his own establishment in the said premises, keep his own personnel and do all other administrative and supervision work in connection with this contract at his own cost. The contractor shall keep up to two persons for dealing with the labour management matters of his personnel and he shall also keep at least one foreman each per shift.
19. During the currency of the contract and at the termination of the contract, the contractor employees shall have no lien of service over the Company or of any other nature whatsoever.
Similarly, the contractor's employees shall have no right to claim any benefits admissible to the employees of the Company."
6. Learned Tribunal, having taken into consideration the case-law cited by the parties and mentioned in the impugned decision, has noted the salient features of the employees of the establishment and that of the contractor. It was observed that following were criteria/true test for determining real status of the workers as to whether he was an employee of establishment or of contractor:
(1) Whether the industry has administrative control over the workers?
(2) Whether the industry based for the work done by the worker?
(3) Whether the industry has power to reinstate and dismiss the worker?
(4) Is the work required to be performed by workman and continues to be of permanent nature and was related to process of manufacturing before finished goods were sent into market?
(5) Since how long services had been rendered and whether the payment of emoluments was made by the Company?
(6) Whether the goods when marketed, bring back proceeds to Treasury of Company itself?
(7) Since how long the worker had been preforming his duties and putting in labour in connection with manufacturing process?
(8) Whether the contractor is a genuine person and has not been set up for denying the benefits under the labour laws to the workers?
7. It would be useful to quote below from a case of Indian jurisdiction reported as Hussainbhai, Calicult and Alath Factory Thozhilali Union, Calicult and others 1978 LLJ 397, wherein the principles for testing above controversy are laid down and the same have been referred by superior Courts of Pakistan in various cases. It is as follows: "5. The true test may, with brevity, be indicated once again. Where a worker or group of -workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractor with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management, not the immediate contractor.
Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43, and 43-A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6 . If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the management cannot snap the real life bond. The story may vary but the inference defies ingenuity.
The liability cannot be shaken off."
8. Learned Appellate Tribunal, having taken into consideration the case-law and the facts of the case, inter alia, observed that the petitioners addressed their grievance notices to respondents Nos, 1 and 2 and prayed that they be directed to reinstate them. Petitioner, Nasir Jamal, in paragraph 7 of the affidavit-in-evidence, stated that his services were never terminated by respondent No,1 and that, in last paragraph of his cross-examination, admitted that aforesaid Muhammad Hussain was a contractor of respondent No,1 that admittedly no appointment order, interview letter, medical certificate and any other document, was produced by petitioners to show that they were directly appointed by respondent No,1 or that respondent No,1 had any administrative control over them, that they even failed to mention that in which Department of respondent No,1 they were working and for what trade they were engaged, that they even failed to mention that who used to supervise their work on behalf of respondent No,1, that there was no mention of the product which was being manufactured or produced through the labour done by them, that petitioners, Nasir Jamal, Imtiaz Hussain, Muhammad Saleem, Nasim Ahmed, Muhammad Bashir, Javed Gilani, Shaikh Imran Ahmed and Nadeem Shahab, whose designation in the grievance petitions and the affidavit-in-evidence were shown as Clerks/Checkers, had claimed that they were working on the same machines in the same department shoulder to shoulder with the permanent workers, that it was surprising to note that how the Clerks/Checkers could be deputed to work on machines, that all the payment sheets Exhs. A/1 to A/21 indicated that petitioners were the employees of said contractor, that Social Security Cards produced also indicated that they were employees of the said contractor, that it was an admitted position that none of the petitioners was member of C.B.A. Or any other Union, that no facilities were given to them, which are availed by permanent workers, that no uniforms were provided to them and that their wages sheets were prepared by said contractor, that none of the petitioners was ever allowed hospitalization at the expense of respondent No,1, that never any of the petitioners was promoted, denoted or charge-sheeted by respondent No,1, that during alleged period of two years none of them ever protested or complained to any authority that respondent No,1 was not issuing appointment letters to them and they were not being treated at par with the other regular workers of respondent No,1, that respondent No,1 never contributed to the Provident Fund of the petitioners, that they did not receive any benefit as a result of settlement between CBA and respondent No,1.
Having taken into consideration above facts, learned Tribunal reached the conclusion that petitioners failed to prove that they were employees of respondent No,1.
9. Mr. Mirza Muhammad Kazim, learned counsel for the petitioners contends that learned Chairman of Tribunal acted without jurisdiction and misappreciated the evidence available on record, which according to him, proved beyond any shadow of doubt, that petitioners were the employees of respondent No,1 and not of the contractor and they were removed from service illegally in violation of the mandatory provisions i.e 12(3) of Standing Orders Ordinance, 1968. Learned counsel also argued that the Tribunal has also failed to appreciate the case-law referred to by the petitioners.
10. As against above, it is urged by Mr. Obaidur Rehman on behalf of respondent No,1 that award of contract to independent contractor under labour laws, is permissible. For this purpose, he referred to sections 2, (viii) (xxviii) of I.R.O., 1969, Standing Order 20 of Standing Orders Ordinance, 1968, section 2(f)(iv) of Standing Orders Ordinance, 1968 and section 2(e) of Standing Orders Ordinance, 1968. He also argued that, under Constitutional jurisdiction, interference is only possible if the judgment is based on no evidence, misreading of evidence or ignorance of material evidence.
11. It is noted that there is sufficient evidence on record to show that petitioners were the employees of the contractor and not of respondent No,1, besides the points of evidence noted in para. 8, it is observed that the terms of Agreement dated 5-14992 between respondent No,1 and the contractor, clearly indicate that the employees of contractor have no concern whatsoever with respondent No,
1. Neither the petitioners were at pay roll of respondent No,1 nor by virtue of said agreement they could claim any benefit from respondent No,1. Their employer was the contractor and cause of grievance, if any, could be raised against him.
12. It is significant to note that the petitioners initially had addressed common grievance notices to the respondent No,1 and to said contractor. This unequivocally postulates that they knew it very well that they were employed by the contractor and for about two years, without any protest accepted their position as such. After termination first time they raised the plea that they were the employees of respondent No, I. Also, it is to be noted that in the prayer clause there was no specific prayer that respondent No,1 be directed to reinstate them, but there is a common prayer that respondents be directed to reinstate them. Neither, the respondent No,1 has administrative control over the petitioner nor had any authority to reinstate or dismiss them nor was responsible for their wages nor said contractor was a fictitious person. All the circumstances, individually as well as collectively, lead to one direction that petitioners were the employees of said contractor ex facie, findings, in this matter have been recorded by learned Tribunal on assessment of evidence available on record and it could not be disturbed simply because a different view was possible. Learned counsel for respondent No,1 cited the case reported as Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCM R 505 and the relevant observations, at page 516, para. 15 are as follows: "In the present case, the learned Tribunal after appraising the evidence concluded that the appellant fell within the ambit of the definition of the workman provided for in section 2(i) of the Standing Orders Ordinance. The High Court in Constitutional jurisdiction could not have sat as a Court of appeal on the question of fact. The finding of fact recorded by a competent Tribunal can be interfered with by a High Court in exercise of Constitutional jurisdiction if the same is based on no evidence or is founded on misreading of evidence or is recorded by ignoring material evidence on record. However, a finding of fact cannot be interfered with by the High Court in exercise of Constitutional jurisdiction merely on the ground that a different view on the basis of same evidence was possible."
13. Accordingly, we hold that there is no merits in this petition and the same is dismissed.