This constitutional petition is directed against the institution of proceed--ings against the petitioners under the Industrial Relations Ordinance, 1969, hereinafter referred to as the I. R. O., on the basis of the complaint made by respondent No. 2.
2. The circumstances which have given rise to this petition are that petitioner No. 1 which is a public limited Company engaged in the business of distribution and marketing of oil and petroleum products, owns and possesses several petrol pumps in Karachi and other places. Petitioners 2 to 4 are its officers and employees. The petitioner-Company owns two types of patrol pumps and stations. Most of the petrol pumps are run and managed by dealers appointed by the petitioner- Company while the other type of its petrol pumps are run and managed by contractors. The petitioner-Company's petrol pump, which is adjacent to Hotel Intercontinental, Karachi, known as Saifee Filling Station, belongs to the second category of petrol pumps and is being run and managed by a contractor. It is stated that this petrol pump was originally being managed and run by Contractor A. N. Borgess, and thereafter-, from 1-12-1972, by Louis Consalves, who was finally succeeded by Contractor Syed Muhammad Saleh.
3. Under the terms of the contract entered into by the petitioner---Company with the contractor, the latter is deemed to be an independent person and the persons working at the petrol pump managed by him are deemed to be his employees, having no concern with the petitioner- Company. It may, however, be pointed out that the contract specifically provides that physical possession of the petrol pump is to remain with the petitioner---Company and the contractor is to sell through his employees the products of the petitioner-Company and to deposit their sale price in favour of the petitioner-Company. For the services rendered by him, the contractor is paid a lump sum amount of Rs. 3,400 per month.
4. Respondent No. 2 was employed by the contractor at the petitioner----Company's petrol pump at Hotel Intercontinental. However, on 11-5-1973, his services were terminated by Contractor Louis Consalves, who was then managing the petrol pump. Respondent No. 2 thereupon instituted proceedings in the Junior Labour Court under section 25-A, of the I. R. O. Against the petitioner- Company, but the complaint was dismissed on the ground that there was no privity of contract between the company and respondent No. 2. Respondent No. 2 thereupon went up in appeal to the Labour Court which by its order, dated 3-1-1974, accepted the complaint of respondent No. 2 and ordered his re-instatement. Respondent No. 2 thereupon was re-instated in service.
5. The petitioner-Company considering itself aggrieved, filed Writ Petition. No. 452/1974, challenging the decision of the Labour Court. This petition was allowed on the ground that the grievance complaint was time-barred. It was also observed in that decision that respondent No. 2 was not an employee of the petitioner-Company.
6. At this stage it may be mentioned that the employees of the petrol pumps of the petitioner- Company which are being managed by dealers have formed two Trade Unions, namely, the Burmah Shell Employees' Union and the Karachi Petroleum Workers' Union. It appears that an application was made by the Burmah Shell Employees' Union for holding a referendum in connection with the election of the Collective Bargaining Agent (C. B. A), which application was opposed by the Karachi Petroleum Workers' Union. The employees of the petitioner-Company's pumps which are being managed and run by contractors are not members of either of these Unions but are the members of a third Union known as the Pakistan Burmah Shell Petrol Pumps Employees' Union. This latter Union also applied to be allowed to take part in the referendum, but its request was rejected by the Registrar of Trade Unions, by his letter dated 23-6-1976. This Union accordingly, in July 1976, made an application to the N. I. R. C. Under section 22-EE of the I. R. O., praying that the establishment of the contractor petrol pumps be amalgamated with the establishments of the petrol pumps run and managed by dealers. This petition, it may be stated, is still pending.
7. In the meanwhile, by a letter dated 3-8-1976, S. M. Saleh, who had taken over as the contractor for the petrol pump where respondent No. 2 was employed, terminated his services. Respondent No. 2 thereupon, on 28-8-1976, filed a complaint before the N. I. R. C. Against the officers of the petitioner-Company and contractor Muhammad Saleh under section 53(1-A) of the I. R. O.
Complaining that the petitioner-Company had committed an unfair labour practice in order to pressurise him with respect to his application to the N. I. R. C. Under section 22-EE. It was also alleged in the complaint that since respondent No. 2 was office-bearer of the Trade Union, being its President, he should not be removed from service during pendency of an industrial dispute, as provided under section 47 of the I. R. O.
8. The Commission forwarded the above complaint to a Labour Court at Karachi, which has issued summonses to the petitioners under section 15 read with section 53(1-A) of the I. R. O. It is against the entertainment of this complaint and the proceedings taken thereon that the petitioners have approached this Court in the exercise of its constitutional jurisdiction.
9. Mr. Noor Muhammad, the learned counsel for the petitioners, submitted that the proceedings before the Labour Court were without jurisdiction and hence liable to be quashed. He assailed these proceedings on the grounds :-
(i) that an unfair labour practice for the purposes of section 15 of the I. R. O. Can only be committed by the employer, but in the instant case there was no relationship of employer and workman between the petitioners and respondent No. 2;
(ii) that a complaint of an unfair labour practice can only be lodged by the Registrar of Trade Unions, but no such complaint had been filed by him in the instant case ; and
(iii) that the jurisdiction of the Labour Court was even otherwise ousted on account of the fact that the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, have been made applicable to employment in organizations dealing with production and marketing of petroleum products.
10. The submission of Mr. Noor Muhammad that an unfair labour practice under section 15 of the I. R.
O. Can only be committed by an employer or Trade Union of employers or persons acting on their behalf is undoubtedly correct. The 1. R. O. Deals with unfair labour practices by only two sets of persons, namely, the employers and the workmen, including Trade Unions of workmen. It has therefore to be seen whether the petitioners are or can be considered to be the employers of respondent No. 2. In support of his submission that they are not the employers of respon--dent No.
2. Mr. Noor Muhammad relied upon, firstly, the decision of this Court in Pakistan Burmah Shell Ltd. v.
Sind Labour Court (PLD 1976 Kar. 200), secondly, the decision of the Registrar of Trade Unions, which was communicated to the Trade Union of which respondent No. 2 claims to be the President by his letter dated 23-6-1976, thirdly, the contract between petitioner No. 1 and S. M. Saleh, and finally, the order of termination of services of respondent No. 2, dated 3-8-1976.
11. The decision in the above reported case was given in the writ petition filed by Messrs Pakistan Burmah Shell Ltd. Against the decision of the Labour Court which had held that the termination of services of respondent No. 2 by Louis, the contractor of Burmah Shell, was illegal and had accordingly ordered his re-instatement. It was held by this Court in that case that as the application filed before the Junior Labour Court was time-barred, the Court had no jurisdiction to entertain the same. It also observed that the second respondent herein, who was a party to that petition, was not to be considered an employee of Messrs Burmah Shell Ltd. Mr. Noor Muhammad submitted that inasmuch as no appeal was preferred against the above order, it had attained finality and could not be challenged or controverted by respondent No. 1. Mr. Nasir Zahid, the learned counsel for respondent No. 2, however, submitted that the question whether the second respondent herein was an employee of Messrs Pakistan Burmah Shell Ltd. Was neither considered nor discussed in the reported case and there was just a passing observation in the judgment and the former was not to be considered an employee of the letter. The learned counsel submitted that this passing observation cannot be considered to have a binding effect, and certainly not upon a Court of criminal jurisdiction. The contention of Mr. Nasir Zahid is undoubtedly correct that there is no discussion in the reported judgment as to why the second respondent herein is not to be considered an employee of Messrs Pakistan Burmah Shell Ltd. And there is just a bald statement to that effect. It may also be mentioned that the reported decision proceeds on the footing that the Labour Court had no jurisdiction because the application before it was time--barred and it had not considered the question of limitation. The observation about the second respondent not being considered to be an employee of Messrs Pakistan Burmah Shell Ltd. Appears at the very end of the judgment and there is no discussion on what material this observation is founded.
12. As regards the intimation to the Trade Union of respondent No. 2 from the Registrar of Trade Unions to the effect that its members are not employees of or engaged by Messrs Pakistan Burmah Shell Limited, Mr. Nasir Zahid submitted that this decision was given on the strength of the decision reported in PLD 1976 Kar. 200. No doubt, the reported decision was given earlier than the intimation from the Registrar of Trade Unions but there is nothing in the intimation nor any other material was produced before me from which it could be inferred that it was solely based on thatdecision. On the contrary, the letter from the Registrar, Trade Unions, clearly indicates that the question whether the members of the Pakistan Burmah Shell Petrol Pumps Employees' Union are employees of Messrs Pakistan Burmah Shell Ltd: was considered by the office of the Registrar, Trade Unions and it had come to the conclusion that they were not employees of Pakistan Burmah Shell Ltd., as they are employees of the operating contractors by whom they have been engaged, and accordingly were not entitled to and not allowed to participate in the referendum being arranged between Burmah Shell Employees' Union and Karachi Petroleum Workers Union. It is, however, doubtful whether the refusal on the part of the Registrar to permit any person to take part in the ballot for electing the Collective Bargaining Agent on the score that he is not an employee of the establishment for which the Collective Bargaining Agent is to be elected would be binding on the Labour Court in criminal proceedings alleging unfair labour practice on the part of the employer against such person. As no arguments were addressed before me on this aspect of the matter, I refrain from giving any decision thereon.
13. The agreement between contractor S. M. Saleh and petitioner No. 1, however, is the most important piece of evidence for determining the question whether respondent No. 2 is an employee of the petitioners. The agreement, in brief, provides that though the petrol pump belongs to the petitioner-Company and the goods to be sold therein will be of and are to be supplied by the company, in whose account the proceeds of the sales would be credited, the petrol pump would be managed by the contractor, who would engage necessary staff for the purpose, and such staff would be entirely under the control of the contractor and the company would have nothing to do with such staff. Mr. Noor Muhammad, the learned counsel for the petitioners, strongly urged that this agreement clearly and unequivocally indicated that the employees at the petrol pump operated by the contractor of the petitioner-Company were not the employees of the petitioner-Company but of the contractor himself, who appointed them, controlled their work and also was entitled to terminate their services. Mr. Nasir Zahid, for respondent No. 2, on the other band, submitted that the agreement was a mere eye-wash arid that the contractor was nothing more but a Manager of the petrol pump on behalf of the petitioner---Company and the real control over the petrol pump as well as the persons employed at the petrol pump was with the company. In support of his contention that the real employer of the second respondent was the petitioner-Company, Mr. Nasir Zahid relied upon the definition of "workman" m the I. R. O. As well as two decisions from the Indian jurisdiction, reported as D. C. Works Limited v. State of Surashtra (AIR 1957 SC 264) and D. C. Dewan M. S. d< Sons v. Workers' Union (1965 L L C 260). The learned counsel further submitted that the relationship of employee and employer was a question of fact which was to be determined by the Labour Court and not by the High Court, and in support of this submission of his he relied upon a Division Bench decision of this Court reported as British India Engineering Works v. Akhtar Hussain Khan (PLD 1959 Kar. 403).
14. As already indicated, the agreement between Contractor S. M. Saleh and the petitioner- Company unequivocally declares that the personnel at the petrol pump to be managed by the contractor would be the employees of the contractor and not of the petitioner-Company which will have no concern with such employees. If, therefore, this agreement is to be relied upon, respondent No. 2 cannot be considered an employee of the petitioners and the objection of the petitioners to the proceedings before the Labour Court would prevail. It is on this account that Mr. Nasir Zabid was at pains to submit that this agreement was a mere sham. He, however, was unable to refer me to any material on the basis of which it could be inferred that the agreement was a mere eye- wash, as claimed by him.
15. In the case of D. C. Works Ltd., the Supreme Court of India took the view that the relationship of employer and workmen under the Industrial Disputes Act, 1947 was similar to the relationship between master and servant and that the prima facie test for the determination of such relationship 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. A precisely similar view was taken by this Court in the case of British India Engineering Works, wherein the test laid down by the Supreme Court of India in the above case was referred to with approval. In the later case of D. C. Dewan M. S. & Sons, the Supreme Court of India referred to the test laid down in the case of D. C. Works Ltd., but took the view, upon the material on record, that persons employed for rolling Biris, who were engaged by so-called independent contractors appointed by the manufacturers, were in fact employees of the manufacturers and not of the so-called independent contractors. This decision was on the basis of the evidence which indicated that the so-called independent contractors were themselves the agents of the Biri manufactures, who controlled the wages of such workers, as was evident from the letter of a Biri manufacturer to the Labour Officer that the factory was agreeable to increase the wages of the workers. The decision in the above case clearly was on the footing of the facts of that case which indicated control and supervision of the workmen by the Biri manufacturers, including control as to their remuneration. There is, however, no such material on record in the instant case.
Mr. Nasir Zahid submitted that the appropriate forum for production of such evidence would be the Labour Court but neither the complaint to the Labour Court contains any indication in regard to any such evidence nor has any affidavit been filed or other material been produced on behalf of the respondents to controvert the terms of the agreement regarding the management of the petrol pump at which the second respondent was employed, which Inter alia provide that the contractor would receive a fix amount for running the petrol pump, from which amount he is expected to pay his employees at the pump, whose number and remuneration are to be fixed by him. The agreement thus clearly seems to indicate that the workmen are employed by the contractor and not by the petitioner-Company.
16. It was next contended by Mr. Nasir Zahid that even if the second respondent was employed by the contractor of the petitioner-Company, he is deemed to be an employee of the company, and for this contention he sought support from the definition of "workman" in the I. R. O. I find no substance in this contention. The definition of "workman" in the I. R. O. Covers only such persons as are employed by the employer directly or engaged through a contractor and does not extend to persons who are employed by the contractor for his own work. As no relationship of employer and employee exists between the petitioners and respondent No. 2, A the petitioners cannot be proceeded against under sections 15 and 53 (t-A) of the I. R. O. In regard to the termination of the services of respondent No. 2.1 The decision in the District India Engineering case provides no assistance to the second respondent as no finding has been given by the Labour Court that the said respondent is an employee of the petitioner.
17. As regards the next objection of Mr. Noor Muhammad to the proceedings before the Labour Court, namely, the complaint by or on behalf of the Registrar of Trade Unions, which complaint according to Mr. Noor Muhammad is a sine non qua for taking cognizance of such a complaint, the provisions of subsections (9) and (10) of section 22-A of the I. R. O. Provide an effective reply. These subsections empower the National Industrial Relations Commission, on the application of a party or of its own motion, to initiate prosecution or take action with regard to any matter relating to its functions, which include dealing with cases of unfair labour practices specified in sections 15 and 16, the trial of offences under section 53 and a reference of such cases to the Labour Court concerned, either for report or for disposal. In the instant case, the complaint was made to the National Industrial Relations Commission which has referred the same to respondent No. 1, the Bind Labour Court No. V. As such, the objection to the taking cognizance of the case by the Labour Court upon the complaint of respondent No. 2, without the intervention of the Registrar of Trade Unions, is without substance.
18. The objection of Mr. Noor Muhammad to the maintainability of the proceedings in the Labour Court against the petitioners by reason of the applicability of the Pakistan Essential Services (Maintenance) Act, 1952, hereinafter referred to as the Act, however, has considerable force. It is an admitted position that by a notification, dated 14-1-1976, the Government of Pakistan had made the provisions of the Act applicable inter alia to all employments in or in connection with organisations dealing with the distribution or marketing of oil. It was not disputed by Mr. Nasir Zahid that the petitioners are engaged in the distribution and marketing of oil and that even their petrol pumps managed by the contractors deal in the distribution and marketing of oil. The provisions of the Act override the provisions of any other law which may be inconsistent therewith, in view of the provisions contained in section 7-A of the Act. In the case of Manzoor A.I v. National Bank of Pakistan (1973 PLC 94) it was held by a learned Single Judge of this Court that having regard to the provisions of the Act, the Labour Court was divested of its jurisdiction to maintain proceedings under section 31 of the Industrial Disputes Ordinance, 1959 relating to the termina--petition of employment of a workman, if the provisions of the Act had been made applicable to the employment of such workmen. A similar view was taken by this Court in the case of Employees'
Union v. Pakistan Machine Tool Factory (1974 PLC 201), Mr. Nasir Zahid, however, sought to rely upon a Division Bench decision of this Court in the case of A. Jawed v. National Industrial Relations Commission (PLD 1978 Kar. 64) to which I was a party, wherein it has been held that the object of the Act and the I. R. O. Are different and that the provisions of the Statutes, except in regard to matters which are provided for in both the Statutes, would not be deemed to overlap or to be inconsistent. The main grievance of respondent No. 2 in his complaint before the Labour Court is that his services have been wrongly terminated. It is not disputed that the Act makes it punishable for an employer to terminate the services of a workman to which the provisions of the Act have been applicable, except for a reasonable excuse. Mr. Nasir Zahid conceded that in view of the aforesaid provisions in the Act, the complaint of respondent No. 2 in respect of the actual termination of his employment was not maintainable by the trial Court. He, however, submitted a two-fold argument in support of his contention that the proceedings before the Labour Court upon the complaint of respondent No. 2 were nevertheless maintainable. His first argument was that though the Act provides punishment for termination of employment, it makes no provision for the re-instatement of a workman whose services have been wrongly terminated and the payment to him of back benefits, which provisions are only contained in the I. R. O. He accordingly maintained that for the purposes of these benefits, which have been specifically claimed by respondent No. 2 in his complaint, there was no conflict or repugnancy between the Act and the I. R. O., and hence the provisions of section 7-A of the Act would not be a bar to the maintainability of the complaint so far as these benefits are concerned. I am unable to agree with this submission of the learned counsel. Since the Act has made certain provisions in regard to the termination of services of a workman, the workman to whom the provisions of the Act have been made applicable can have resort only to the said provisions and not to the provisions of other laws dealing with the same matters or consequential matters.
19. The second contention of Mr. Nasir Zahid was that even if it is considered that respondent No. 2 was precluded from agitating his grievance in the Labour Court in respect of termination of his employment, the complaint disclosed another grievance against the petitioners, in that they had threatened to terminate his employment by reason of his Trade Union activities, specially the making by him of a complaint to the National Industrial Relations Commission under section 22-EE of the I. R. O. The learned counsel sought to make a distinction between actual termination of services and threat to terminate services on account of Trade Union activities, and submitted that these are distinct offences under section 15(1)(d) of the I. R. O. The learned counsel submitted that since the giving of threats by the employer to terminate the services of a workman is not covered by the provisions of the Act, such acts on the part of the employer can be made the subject of proceedings before the Labour Court, even in the case of persons to whom the provisions of the Act are applicable. I regret that I see no force in this contention. Since the Act only makes provision in regard to the termination of employment of al workman, the mere giving of threats of termination of such employment. Which is followed by actual termination, would be deemed to b closely inter- connected and related to the actual termination of employment. B Since the Act contains safeguards only in respect of actual termination of employment, provisions in any other law in regard to giving of threats fort termination of employment would appear to be inconsistent with the, provisions of the Act.
20. For the reasons stated by me above, I am of the view that the proceedings before the Labour Court are not legally maintainable and that the Labour Court has no jurisdiction in the matter. I would accordingly allow the petition with costs and quash the impugned proceedings before the Labour Court.