' Petitioners are Passengers Services Assistants working in the Pakistan International Airlines Corporation. They were appointed through a contractor as daily wages employees but are performing the same duties which the regular Passenger Services Assistants are performing in the Corporation. However, they are getting half the salary of what the regular Passenger Services Assistants get and are also denied the other benefits/allowances. Through this Constitutional petition they have sought a direction that they be treated as regular employees and be given the same benefits to which the regular Passenger Services Assistants are entitled under the rules.
2. In the comments submitted by the Pakistan International Airlines Corporation a preliminary objection qua the jurisdiction has been raised in view of section 2-A of the Federal Services Tribunal Act, 1973 as also on the ground that the services of the petitioners are not covered by any statutory rules to warrant interference under Article 199 of the. Constitution. On merit it was submitted that the petitioners are employees of the contractor and not of the Pakistan International Airlines Corporation, that the PIAC was not privy to the contract entered into by the petitioners with the contractor, that they are workmen as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance and they have remedy under section 25-A of the Industrial Relations Ordinance. It was contended that the interview of the petitioners by the respondent Corporation was conducted on account of sensitive nature of the duties and that the said exercise, by itself, would not make them permanent employees of the Corporation.
3. In the comments submitted by the Contractor (respondent No,3) it was admitted that the petitioners receive wages through the respondent Corporation and they are employees of the PIAC, therefore, respondent No,3 has nothing to do with their promotion, conditions of work or revision of salary. It was further conceded in the comments that "PIAC engaged the answering respondent through agreement, dated 1st July, 1997 whereas the petitioners were already working in the PIAC prior to this contract of M/s. United Services, dated 1st July, 1997. The uniforms to the petitioners are being issued by PIAC as per agreement, dated 1st July, 1997. They are working under the supervision, direction, administrative control and within the premises of the PIAC".
4. Learned counsel for the petitioners made following submissions in support of this petition:--
(i) That since the petitioners are performing duties in the Pakistan International Airlines Corporation for the last so many years they are permanent employees of the Corporation and merely because they were employed through a contractor would not make them employees of the contractor. In support of this argument learned counsel relied on Farid Ahmad v. Pakistan Burmah Shell Limited (1987 SCMR 1463), Sindh Employees' Social Security v. Consolidated Sugar Mills Limited (1989 SCMR 888), Pakistan Tobacco Company v. Punjab Employee Society Security Institution (PLD .1978 Lahore 704), M/s. Ceramics Limited v. Registrar of Trade Unions (1996 PLC 45) and Pak Suzuki Motors Limited v. Muhammad Hussain and 24 others (1999 PLC 154);
(ii) That the argument qua lack of jurisdiction (in view of section 2-A of the Federal Service Tribunal Act) is not available to the respondent Corporation as it is not treating the petitioners as employees;
(iii) That the nature of the duty of the petitioners is the same which is being performed by the Regular Passenger Services Assistants. The act of the respondent Corporation in not treating them as regular employees and in not granting them the same salary and benefits is hit by the equality clause of the Constitution and,therefore ,merits interference under Article 199 of the Constitution.
5. Learned counsel for the respondent Corporation on the other hand, made following submissions:--
(i) That the petitioners being employees of the contractor and being workmen have the remedy of filing a civil suit and are not entitled to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution;
(ii) That the petitioners have raised disputed questions of fact which cannot be agitated in a Constitutional petition;
(iii) While conceding the fact that the petitioners are performing the same duties which the Regular Passenger Services Assistants perform, learned counsel for the respondent Corporation contended that the petitioners were employed through contractor as temporary employees to meet the contingencies and merely because they are performing similar job would not make them either permanent employees or entitled to the same benefits which the latter employees of the PIAC, similarly placed, get.
6. I have heard learned counsel for the parties, have given anxious considerations to the submissions made at the bar and have also gone through the precedent case law.
' To better appreciate the issues involved it is necessary to refer to some of the provisions of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985.
Regulation 'No,7 (Chapter-H) reads as under:-- "(7) Classification of employees.---The permanent employees shall be classified under the following categories:- ' Officers: Covering all classes of employees ,from pay group V. And above, including employees in special pay group.
Staff: Covering all classes of employees in pay groups I to IV.
7. Petitioners, according to the respondent Corporation, do not belong to either of the afore- referred classes and in para. 4 of the comments, submitted by the respondent Corporation, it was submitted that "they fall in the category of ' workmen' as defined in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance". However, according to it they are workmen under the contractor and not the respondent Corporation. Mere nomenclature of 'agreement' (between respondents Nos.1 and 3) relied upon by the respondent Corporation would not make them 'workmen' under the contractor. Admittedly petitioners are working in the respondent Corporation and doing the same job which the Regular Passenger Services Assistants (Grade-IV) are performing for the last more than two years. As per comments submitted by respondent No,3 (Contractor), petitioners were already doing this job with respondent No,1 prior to respondent No,3's contract with the respondent Corporation. In para.2 (on facts) of the written comments submitted on behalf of the respondent Corporation it has been conceded that "the petitioners were interviewed by the management of the PIAC to assess their capability/qualification due to technical and sensitive nature of their duties after the contractor has placed his employees to fulfil the contract executed by the parties". It has also not been controverted that the petitioners are being paid salary according to letter, dated st of April, 1995 (AnnexureR3/1 with the comments submitted by respondent No,3) which reads as under:-- "REVISED CONSOLIDATED SALARY TO PERSONS HIRED ONE DAILY WAGES THROUGH CONTRACTORS.
Management has approved revised consolidated salary for the persons hired for work on Daily wages basis through the contractor in various departments at Karachi and at domestic stations:-- {{TABLE}} TABLE Category Equivalence Rates Rs, Month Rates per day Pay Group Existing Revised 8 hrs shift 12 hrs shift A IV 2600 3200 145 213 B III 2200 2800 127 186 C II 1900 2400 109 160 D I 1600 2100 95 140 {{TABLE}} Dearness Allowed of Rs,200 per months has been merged in the revised rates of consolidated salary. Payment of Rs,50 per month as Ad hoc Relief to be continued in accordance with Admin.
Order No,21 of 1994, dated 30th August, 1994 till further orders.
(4) In addition, management has approved conveyance allowance at uniform rates of Rs,300 per month with immediate effect. The same shall not be admissible/paid where transport facility is provided/availed under the present arrangement by the Motor Transport Division."
8. In view of the stand taken in the comments, the nature of their assignment and conditions of work would bring them within the ambit of workmen as defined in section 2(xxviii) of the Industrial Relations Ordinance (XXIII of 1969) which reads as under:-- 'Worker' and 'Workman' means any person not falling within the definition of employer who in employed (including employment as a supervisor or as an apprentice) in an establishment of industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied...."
9. The West Pakistan (Standing Orders) Ordinance spells out various classes of workmen as under:- - "Classification of workman.----(a) Workman shall be classified--
(1) Permanent;
(2) Probationers;
(3) Badlis;
(4) Temporary;
(5) Apprentices.
(b) A 'permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment including breaks due to sickness, accident, leave, lock-out, strike (Not being an illegal lock-out or strike) or involuntary closure of the establishment (and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty three days during any period of twelve consecutive months)."
10. It is not denied that the petitioners are employed on a work which is of "permanent nature" within the meaning of Order 1(b) of West Pakistan (Sanding Orders) Ordinance and are there for the last at least more than two years. They are, therefore, workmen in the Pakistan International Airlines Corporation (respondent No,1) and merely because they were employed at one point of time through respondent No,3 to render services for respondent No,1 would not make them workmen under the contractor. In Farid Ahmad v. Pakistan Burmah Shell Limited (1987 SCMR 1463) the question arose whether the employees working at the patrol pumps run by contractors were employees of the contractors or Pakistan Burmah Shell Limited wherein at page 1466 it was held as under:-- "What was intended by the legislature by this provision was to include amongst workmen or employees not only persons who had been directly employed by the owner or employer but also those who were employed by them through such person who undertakes contracts to supply labour.. The word 'contractor' in this context does not mean persons employed by owner or an employer of a factory or the company for performing any particular work or task to be done in relation to the running of the factory or the company.
' As observed in DC Works Limited v. State of Saurashtra (AIR 1957 SC 264), relationship of employer and workman is similar to the relationship between master and servant and that the prima facie test for the determination of relationship between master and servant was the existence of the right in the master to supervise and control the work done by the servant, not only in the matter of directing what the servant is to do but also the manner in which he shall do his work.
' In the present case Farid Ahmad appellant was employed by the person who had contracted to run a petrol pump of the respondent-company and not merely to supply labour to be .Engaged by the company. The contractor, in this case, is not only the person who had employed Farid Ahmad appellant but also the person who had the power of hiring and firing the employees; assigning works to be taken from them and not only directing them what to do but also the manner in which they shall render services to the customers at the petrol pumps."
11. In the afore-referred case the employee who was working at the petrol pump was declared an employee of the contractor because the latter had the power of hiring or firing the employees, assigning works to be taken from them and the salary to be paid to the workers. In the instant case the interviews conducted, the appointment letters issued, the assignment of duties, the quantum of salary and the power of hiring and firing lies with the respondent-Corporation (respondent No,1), therefore, they are for all intents and purposes workmen under respondent No,1.-
12. The ratio laid in the afore-referred case was reiterated in Sindh Employees Social Security, v.
Consolidated Sugar Mills Limited (1989 SCMR 888) wherein it was observed as under:-- "Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer, the statute -made provision for it directly (State undertaking--Section 2(9)] or indirectly [section 20(8) and section 29(9)]."
' The foregoing view was further affirmed in Pakistan Tobacco Company v. Punjab Employees'
Social Security Institution (PLD 1978 Lahore 704). M/s. Ceramics Limited v. Registrar of Trade Unions (1996 PLC 45) and Pak Suzuki Motors Limited v. Muhammad Hussain and 24 others (1999 PLC 154).
M/s. Valika Woolen Mills v. Valika Woolen Mills Employees Union (1969 PLC 783), OBAB Khan v. Rashid Textile Mills Limited (1987 PLC 99), M/s. Al-Karam Textile Mills v. Muhammad Jamal and 10 others (1995 PLC 680).
13. The argument of the learned counsel for the petitioners that the treatment meted out to the petitioners is violative of section 25 of the Constitution cannot be brushed aside lightly. Article 25 of, the Constitution reads as under:- "25 Equality of citizeni.---(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing -in this Article shall prevent the State from making any special provision for the protection of women and children."
14. The object of this Constitutional provision is that all persons similarly placed shall be treated alike both in rights conferred and liabilities imposed. This equality, however, is not unqualified and the Legislature can create classifications and treat the person placed in the respective classification differently. This classification, however, has to be reasonable and according to Dr. Durga Das Basu (Commentary on the Constitution of India- Sixth Edition--Vol.B--1975--Page 170) is subject two test which are as under:-
(i) that the classification must be founded on an inteligible differentia which distinguishes persons or things that are grouped together from other left out of this group and (ii) that, that differentia must have a rational relation to the object sought to be achieved by the statute in question. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
' In F.B. Ali v. State (PLD 1975 SC 506), the Hon'ble Supreme Court observed as under:-- "To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinction. Thus, different laws can validly be made for different' sexes, for persons in different age groups, e.g. Minor or very old people; basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community."
15. In the case of Muhammad Asim and others v. Telecommunication and others (1997 PLC (C.S.)
1131) while referring to Articles 2A, 25 and 27 of the Constitution, this Court, at, page 1136, held as under:-- #TBS PLC #TBE "But under our Constitution which specifically provides for enforcement of Islamic values and Islam being the State religion guarantees the social, economic justice and fundamental freedom and rights to the citizens. The employer is not allowed to dictate his terms of appointment taking advantage of the absence of the bargaining power in the employees and to force an employee to accept employment on take it or leave it terms offered by the employer. The human dignity and better, conditions of work with proper remuneration has also been secured by Articles 3 and 14 of the Constitution. The power of regularization or otherwise has to be free from arbitrariness. It is too late in the day to take a position that a Company which is created by a Statute in contradiction of a Company created under a Statute is not subject to the jurisdiction of the High Court under Article 199 of the Constitution. It is now well-settled that a Government Company created by the provisions of the Statute itself is amenable to the jurisdiction of the High Court. See the case of Muhammad Aslam Saleemi v. Federation of Pakistan (PLD 1977 Lahore 840), Mushtaq Ahmad v. The Secretary to Government (PLD 1994 Lahore 417), Syed Mumtaz Shah v. Chairman NPT (1994 PLC (C.S.) 810). In the case of State of Haryana v. Payara Singh (1992 (4) SCC 118), it was held that in the case of long continuance in service of work-charge/casual/daily wages workers, the presumption for regular need of service would arise obliging the authority concerned to consider with a positive mind the feasibility of regularization. The petitioners and other employees who had rendered service with or without artificial breaks before 1-1-1996 on daily-basis/work-charge/casual or leave vacancy, etc., are entitled to be considered for permanent absorption in service. The termination of the petitioners and such other employees would be will be invalid."
16. The argument of the learned counsel for the respondent Corporation that the petitioners should file appeal before the Federal Services Tribunal in view of section 2-A of the Services Tribunal Act is pre-mature and not tenable at this stage because the respondent has so far passed no order and they are not being treated as employees.
17. Admittedly, the respondent Corporation has not considered the case of the petitioners. In this view of the matter and for what has been discussed above, this petition is disposed of with a direction to the respondent Corporation to consider the question of petitioners' regularization and of granting them same salary/benefits to which their other colleagues (who stand regularized) are entitled: The respondent Corporation shall do so by or before 30th October, 2000.