' These thirteen appeals (listed as above) arise out of decisions passed on 4-3-1998 by the learned Presiding Officer, Sindh Labour Court No,3 at Karachi in Grievance Petitions Nos.70 to 80, 83 and 93 of 1997 whereby the grievance petitions for reinstatement with back benefits were dismissed.
2. The facts, briefly stated, are that the appellants have alleged to be in service of the respondent for different periods of,time, ranging from five to ninteen years, in different capacities.
3. It is further alleged that the appellants were all removed from the service without any notice or stating any reasons therefor.
4. The respondents, in the reply statement, pleaded, inter alia, that the appellants have never been their employees, except one or two, who had submitted their resignations or otherwise ceased to be their employees, as long back as 1981 or so. It was further alleged that some of the appellants might be working with its contractor as the respondent had given the work of Ring Department on contract.
5. The learned Presiding Officer framed the following issues:-- 1 Whether there exist relationship of Employer and Employee between the parties?
2 Whether grievance petition is maintainable?
3 Whether this Court has jurisdiction to entertain the matter?
(4) Whether the services of the applicant were terminated illegally by the respondent?
(5) What should the order be ?
6. The appellants examined themselves and closed their side. The respondent examined its Labour Officer, Abdul Quddus and produced one Qamaruddin, the Contractor and closed its side.
7. As to the proof of service of the appellants with the respondents, it was admitted by the appellants that they had no document to prove that they were employees of the respondent. One or two appellants alleged that their service cards were taken back by the respondents, but admittedly no complaint against taking of the service card, was made. There was also no complaint made by the appellants to Social Security and E.O.B.I. Against the respondent, who had not got registered the appellants with these organizations. It was, however, denied that the appellants were the employees of the contractors Qamaruddin and they received their salaries from him. It was, however, admitted that the respondent issues appointment letters to its employees.
8. On the other hand, the respondent's Labour Officer, in his statement, clearly stated before the learned Presiding Officer that the appellants had never been their employees and that the respondents had given the work of Ring Department to the contractor Qamaruddin, who was examined in the Court and confirmed the position by producing agreement (s) between the respondent and the contractor. There is, therefore, solitary word of the appellants that they were employees of the respondent, but were not, issued appointment letters, although, it was specifically admitted that the respondent was issuing appointment letters to their employees.
9. I have gone through the entire record with the assistance of Mr. Saddiq Malik, representative of the appellants and Mr. Masood A. Khan learned counsel for the respondent and fined that the claim of the appellants is not supported by any evidence. The appellants have miserably failed to produce any evidence that they were employees of the respondent, whereas, the respondent proved, to the satisfaction of the Court that, they had no relationship of employer/employee. The appellants might be working with contractor Qamaruddin, to whom the work of Ring Department was assigned on contract basis.
10. Mr. Siddiq Malik,. Representative of the appellants; placed his reliance on the following three cases.
(i) M/s. Basti Sugar Mills Ltd. v. Ram Ujagar and others (AIR 1964 Supreme Court 355), wherein it appears to have been held that, "owner of the industry is an employer even in respect of the workman employed by a contractor to do the work of the industry".
(ii) Hussainbhai, Calicut v. Alath Factory Thozhilali Union, Calicut and others (1978 LLJ SC 397), wherein it was observed that, "the petitioner before us in his special leave petition is a factory owner manufacturing ropes. A number of workmen were engaged to make ropes from within were hired by contractors who had executed agreements with the petitioner to get such work done.
Therefore, the petitioner contended that the workmen were not his workmen but the contractor's workmen. The industrial award, made on a reference by the State Government, was attacked on this ground. The learned Single Judge of the High Court, in an elaborate Judgment, rightly held that the petitioner was the employer and the members of the respondent-union were employees under the petitioner. A Division Bench upheld this stand and the petitioner has sought special leave from this Court." After hearing the petition for leave to appeal, it was held that. "Here, on the facts, the conclusion is correct and leave must be refused."
10. I asked the representative to place the relevant Indian Law so as to enable this Tribunal to appreciate the said two Judgments in their correct perspective as to know whether the provision of law in the Indian Statute is the same and similar to the Pakistan's Industrial Relation Ordinance, but he showed his inability to produce it. As such, it will be unfair on my part to comment on Indian Law vis-a-vis Pakistan Law. (iii) In the case of Messrs Al-Karam Textile Mills (Pvt.) Limited Karachi v.
Muhammad Jamal and 10 others (1995 PLC 680). The facts of the case are quite distinguishable inasmuch as the eleven workers, against whom the appeals filed by the appellant (Al-Karam Textile Mills) were working in the Mills in various capacities, in the Weaving Department, but their service' had been "produced through a contractor and the unit of the Mill had not been given on contract basis".
11. On the other hand, Mr. Masood A. Khan, submitted the following rulings, on behalf of the respondent.
(a) Shahab Industries Ltd., Karachi v. Shah Nimroz 1974 PLC Note 60 at p.33, wherein it was observed that." the appellant's case was that the Respondent was not their employee. Shah Nimroz was the employee of a Messers A.A. Asad, Jerrican Contractors, whom the appellants had given contract for manufacture of Jerrican." The then learned Chairman of this Tribunal further laid down, in the said case, some of the essentials to find out whether a person was in the employment of a certain Industry or not:--
(1) Whether the Industry has administrative control over the worker;
(2) Whether the industry pays for the work done by the worker; and
(3) Whether the industry has power to reinstate and dismiss the worker. The learned. Tribunal then proceeded to test the above essentials in the light of the agreement with the contractor and a fine distinction was made by the learned Chairman between the two situations; the one where a worker is employed through a Contractor and the other where the Contractor himself employee workers for carrying on the contract, which he has taken. It was thus, held that the case of the appellant was that they had given a contract to manufacture Jerricans to Messers A.A. Asad. Jerrican Contractor. The agreement, dated 20-1-1972, amply proves that the contractor was running the'business on his own, as he had the power to dismiss and pay the workers. Standing Order 20 of the Standing Orders Ordinance, 1968 would apply only where a concern employees workers through contractors and not where the contractor is himself running the business on his own. In the latter case, the industry pays only for the finished goods and has no control or supervision, over the worker....".
(b) In the case of Taj Din and 44 others v. Punjab Labour Court No,3 Lyallpur (PLD 1976 Lahore 1169), it was observed by Mr. Karam Elahee Chauhan, J. (as he then was) that."
"...A perusal of the aforesaid case-law on the subject indicates that a concept of employment involves three ingredients, (i) employer; (ii) employee and (iii) the contract of employment. The employment is the contract of service between the employer and the employee whereunder the employee agree to serve the employer subject to his control and supervision. Employment brings in the contract of service between the employer and the employee. The control of the Management, which is a necessary element of the relationship of master and servant, is not directed towards providing or dictating the nature of the article to be produced or the work to be done, but refers to the other incidents having a bearing on the process of work the person carries and in the execution of work. The manner of work is to be distinguished from the type of work to be performed. A contractor is a person who in the pursuit of an independent business undertakes to do specific jobs of work for other persons without submitting himself to their control in respect to the details of the work. There is, therefore, a clear out distinction between the contractor and a workman. The identifying mark of the latter is that he should be under the control and supervision of the employer in respect of the details of the work. The prima facie test for the determination of the relationship between the employer and the employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work. The words 'either directly or through a contractor' in section 2(xviii) of the Act indicates that the employment is by the management directly or through some kind of employment agency and in either case there is a contract of employment between the Management and the persons employed. There should be a privity of contract between them and the Management. Where for example coolies are not employed by the Management directly nor they are employed by the Management through the agency of an independent contractor it follows that Coolies employed by the said contractor are not workers within the meaning of the definition in the Act. The various provisions contained in different sections of the Act give a clear indication that a worker under the definition of the Act is a person who enters into a conract of service under the Management and does not include an independent contractor or his Coolies or servants who are not under the control and supervision of the employer. No exception to this enunciation of law has been taken by the learned counsel for the parties and as even otherwise it appears to be quite in order, no case in the cases of writ jurisdiction has been made out for interference with the concurrent findings of fact recorded by the two Courts below on the relevant evidence before them."
(c) In the case of Nazar Muhammad and 14 others v. Presiding Officer Sindh Labour Court No,III and another (PLD 1977 Karachi 214) relevant portion appearing at page 214, the learned Judge observed as under:- "(6) First I will deal with the case of the petitioners Nos. 2 and 5. 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 run........ ' 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. The question which, therefore, needs consideration is whether in the presence of these clear admissions, the respondent No,2 can be saddled with the obligation 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 or commercial establishment shall personally be held responsible for proper faithful observance of the Standing Orders, whether or not the workman of such establishment are employed through contractor.'
7. The matter came up for consideration in the case of Shahab Industries Ltd. Karachi v. Shah Nimroze (1974 PLC Note 60 at p. 33) before Mr. Justice Inamullah Khan, the Labour Appellate Tribunal. The tests to find out, whether a person was in the employment of a certain industries. Or not, were enumerated as under:--
(1) Whether the Industry has administrative control over the worker;
(2) Whether the industry pays for the work done by the worker; and
(3) Whether the industry has power to reinstate and dismiss the worker.
' It was further observed that distinction has to be made between the situations. 'The one where a worker is employed through a contractor and the other where the contractor himself employs 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 concern or supervision over the worker, and as a logical corollary, the employees will be the employee of the contractor alone.
This principle is also from Messrs British India Engineering Works v. Mr. Akhtar Hussain and others (PLD 1959 Kar. 403), which was a case dealing with the provisions of the Indian Dispute Act of 1947.
It was observed that 'the prima facie test for the determination of relationship between master and servant is the existence of the right ii the master to supervise and control the work done by his servant not only in the matter of direction what work the servant is and also the manner in which he shall do work.' Reference was made to the case of dharangandhry Chemical Works Ltd. v. State of Saurashtara and others (AIR 1967 SC 264) which referred to the case of Harbour Board v. Coggins & (Liverpool) Ltd. (1974) IAC 1, in which the following observations was made; 'The proper test is whether or not he hirer had authority to control the manner of exection of the act in question' ."
' It is noticeable that the case, listed earlier under (a), rendered by the late Chief Justice Inamullah Khan, lateron Chairman of this Tribunal, was respectfully followed by the learned Judge in this case.
(d) In the case of Farid Ahmad. v. Pakistan Burmah Shell Ltd. And others (1987 SCMR 1463), relevant page appearing at page, 222, a Full Bench comprising six Hon'ble Judges of the Supreme Court, it was observed that.
"(3) Farid Ahmad, appellant, was employed by the contractor at the respondent-company's petrol pump at Hotel; Inter-Continental (now Pearl Continental). His services were terminated on 11-5- 1973 by Mr. Louis Consalves, the then contractor. This was challenged by the appellant in the Labour Court through a grievance petition under section 25-A of the Industrial Relations Ordinance. The same was, however, dismissed on the ground that there was no privy of contract between him and the Pakistan Burmah Shell (respondent No,1). Against this order, Farid Ahmad filed an appeal which was accepted by the Labour Court and he was ordered to be reinstated. This order was complied with by respondent No, 1 . But the respondent-company filed a Writ Petition (No, 454/74) challenging the aforementioned order of the Labour Court directing appellant's reinstatement. The writ petition, was allowed by the High Court of Sindh vide its judgment dated 17-3-1975 (reported in PLD 1976 Kar. 200), wherein it was observed. Inter alia, that the appellant was not an employee of the respondent-company. But in spite of the above judgment the appellant continued to work at the Petrol Pump.
' It may be mentioned that the appellant formed a Labour Union of the employees working at the Petrol Pumps run by the contractors, by the name of Pakistan Burmah Shell Petrol Pumps Employees Union. There were already two labour unions of the employees of the petrol pumps owned by the Pakistan Burmah Shell and run by the dealers. These two unions had a dispute amongst themselves and a referendum was to be held to resolve the dispute. Farid Ahmad appellant also applied for permission for his union to take part in the said referendum, but his request was turned down by the Registrar Trade Unions on the ground that members of his union were not the employees of the respondent-company. On this the said Union made an application to the N.I.R.C. Under section 22-EE of the Industrial Relations Ordinance, for the amalgamation of the workers of the contractors' petrol pumps with those of the petrol pumps run and managed by the dealers.
(4) While the above controversy was still pending. Mr. S.M. Saleh succeeded the previous contractor Mr. Louis Gonsalves as a contractor of the abovementioned petrol pump. Mr. Saleh, through his letter, dated 3-8-1978, again terminated the services of the appellant. Thereupon, the appellant instead of serving a grievance notice and of filing a grievance petition under the Industrial Relations Ordinance, for his reinstatement, filed a criminal complaint before the N.I.R.C. Against respondent No,1 and its 3 officers under section 53 (1-A) of the Industrial Relation Ordinance, complaining that the respondent No,1 and its officers had committed 'unfair labour practice'. The Commission forwarded the said complaint to the Labour Court which issued summons to respondents Nos.1 to 4.
' The latter thereupon filed a writ petition which was allowed by the learned Single Judge of the Sindh High Court vide judgment, dated 28-8-1975. Feeling aggrieved the appellant filed a HCA which was heard and dismissed by a Division Bench of the Sindh High Court vide the impugned judgment, dated 2-12-1980.
(5) Not being satisfied the appellant then filed a petition for leave to appeal before this Court and leave was granted to him by this Court's order, dated 13-12-1981, to consider as to whether or not the appellant was an employee of respondent No,1 (PBS) and whether it was open to the High Court to have decided this question in exercise of its Constitutional Jurisdiction as it involved a question of fact.
(7) We have gone through the impugned judgment and heard the learned counsel for the parties at length.
' Learned counsel for the appellant urged firstly that the High Court in the exercise of its Constitutional Jurisdiction, ought not to have decided whether the appellant was an employee of the respondent-company (PBS) as this was question of fact which could have been properly determined by the Labour Court seized of the matter."
' It was further observed that "What was intended by the legislature by this provision was to include amongst workmen or employees not only persons who have been directly employed by the owner or employer but also those who were employed by them through such persons who undertake contractors to supply labour. The word 'contract' 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."
' Finally, it was held that "(10) As mentioned above the question of relationship between the owners of factory/comapny and the person employed by its contractors, has already been decided by this Court in the case of Mian Munir Ahmad (supra) and it has been held that such persons are not the employees of the factory owners but those of the contractor who has hired them.
(11) The net result of the above discussion is that the High Court has rightly held that Farid Ahmad appellant was not the employee of the respondent-company but that of Mr. Saleh, the company's contractor. The appeal is consequently dismissed as having no merit."
(e) In the case of Mian Munir Ahmad v. The State (1985 SCMR 257), it was held that. "Labour employed by contractor and not employed by the employer, the factory management was not responsible for such labour in any manner and could not be required to issue attendance ticket to such workers under section 2 of Schedule 2(g) of the Standing Orders Ordinance".
(f) Reliance was also placed on an unreported Judgment, in the case of Siemens Pakistan Engineering Co. Ltd. v. The Sindh Labour Appellate Tribunal and others in C.P. No,D-956 of 1992 by a Division Bench of our own High Court in support of the plea that the work of the Ring Department was being run under the control of a labour contractor and the company has nothing to do.
12. Mr. Masood A. Khan further submitted that the burden of proving the employment is upon the worker. Reliance is placed on the case of Muhammad Wali and others v. Dawood Cotton Mills Ltd., Karachi and others (1993 PLC 210). Associated Press of Pakistan v. Associated Press of Pakistan Employee Union/Islamabad/Rawalpindi through its President, Zafar Rashid Bhatti and 22 others (1996 PLC 687) and Sher Bahadur and others v. Messers Sub-Coss-II (Pvt.) Ltd. And others (1999 PLC 447).
13. On going through the record, with the assistance of Mr. Siddiq Malik, representative of the appellants and Mr. Masood A. Khan, learned Advocate for the respondent, there is no evidence in support of the plea, adduced by the appellants, to show that the appellants have been in the employment of the respondent, and, as such, the learned labour Court was right in holding that there existed no relationship of "employer" and "employee" between the parties. The relationship, if any, might be between the appellants and the contractor, from time to time. In fact, the contractor himself has been examined as witness of the respondent, who has clearly deposed in support of the respondent.
14. Mr. Siddiq Malik, referring to para.11 of the memo. Of appeal, submitted that the appellants were employed by the contractor and the Auto Weaving Department and Ring Department in the respondent Mill have been given to the contractor as to how the employment of a number of employees, mentioned in the said para., continued to be the employees of the respondent. Learned counsel for the respondent explained, first of all took an objection that the appellants have filed some paper without leave of the Court at the appellate stage and they are not to be taken into consideration. In any case and without prejudice to the above contention, he explained that each and every employee, named in the said paragraph, were not concerned with the manufacture/production. Most of them were concerned with the maintenance of the department concerned, as it was not the responsibility of the contractor. They are not at all involved in production. Whereas, the production wing of the Ring Department was entirely given on contract.
He further submitted that had these papers been produced in the Labour Court, the respondents would have got an opportunity to lead evidence. I, therefore, find myself in agreement with the findings of the learned Labour Court that there exist no relationship of "employer" and "employee" between the parties.
15. This being the main issue. I do not feel inclined to discuss the other issues, which will be a sheer waste of time and will have no bearing on the result of the case.
16. These are the reasons for my short order, dated 18-1-2000, announced in open Court, whereby the appeals were dismissed by me, just after the conclusion of the arguments.
Apppeals dismissed.