2024 PLP 155 (PLC)

SHAHID MEHMOOD KHOKHAR, CHAIRMAN.

Through this order, I Intend to dispose of application, filed by respondent establishment (hereinafter to be referred as Respondent) under Order VII, Rule 10 read with section 151, C.P.C., 1908 and section 13(1)(c) of the Newspaper Employees (Conditions of Service) Act, 1973.

2. Through instant application, respondent has denied the jurisdiction of this Tribunal by raising an issue i.e. "Whether or not the applicant is a newspaper employees of the Respondent / newspaper establishment", a question that is beyond the jurisdiction of this Tribunal. In the body of the application, respondent has contended that this Tribunal is only constituted for implementation of decision of the Wage Board where parties admit their interse relationship as employee and employer. Furthermore, the petitioner / applicant is a stranger to respondent after 07/07/2007 as according to him applicant was an employee of an "outsourced contractors". Hence, applicant is no more employee of the respondent, therefore, application under Order VII, Rule 10 read with section 151, C.P.C. and Section 13(1)(c) of the Newspaper Employees (Conditions of Service) Act, 1973 be allowed and, petition/application be returned for filing of the same before the Court of competent jurisdiction.

3. In support of his contention, learned counsel has contended that the petitioner was employed by outsourced contractor i.e. M/s. Total Media Solutions (TMS), whom he rendered services up to 19/12/2018, M/s. Total Media Solutions is not a party in instant proceedings before this Tribunal. Furthermore petitioner has not filed any claim against third party contractor and name of the petitioner is not included in the declaration filed by respondent qua 7th Wage Board Award and last but not least, petitioner was admittedly an employee for respondent from 13/10/1992 to 06/07/2007 and if at all petitioner has any claim against present respondent till 2007, it is barred by time as held by honourable Islamabad High Court, Islamabad in Judgment reported as 2019 PLC (C.S.) 541, titled as Iqbal Mustafa Bukhary v. Daily Khabrain, Islamabad.

4. On the other hand, representative of the petitioner has vehemently opposed the application, filed under Order VII, Rule 10, C.P.C., as well as contentions made by learned counsel for the respondent and submitted that the petitioner is a newspaper employee who has rendered services to respondent establishment within its premises since 13/10/1992 to 19/12/2018 continuously and without any break Further submitted that he has been rendering service to the respondent establishment directly or indirectly for the publication of its newspaper known as Daily The News, Rawalpindi from Al-Rehman Building, Murree Road, Rawalpindi. He admitted that he was a regular employee of respondent establishment from 13/10/1992 to 06/07/2007 and from 07/07/2007 to 13/12/2018. He was engaged by the respondent through its contractor namely M/s. Total Media Solutions (TMS) to render services to respondent establishment within the same premises and was performing same duties under third party contract but he was not given any termination letter on 06/07/2007 by the respondent establishment rather he has been receiving salary from the respondent establishment till March, 2008. He further submitted that respondent has not paid even a single penny till date on account of his terminal dues for the services rendered by him i.e. gratuity, provident fund or leave encashment etc. as admissible to him under the 7th Wage Board Award, He has further contended that for all intent and purposes, he is a newspaper employee as defined under Section 2(d) of the Newspaper Employees (Conditions of Service) Act, 1973, wherein it has been specifically provided that:- "newspaper employee means any person employed to do any work in, or in relation to, any newspaper establishment".

5. He further emphasized on definition of "newspaper establishment", provided in Section 2 (e), which reads as under:- 'newspaper establishment' means an establishment under the control of any person or body of persons whether incorporated or not, for the production, printing or publication of one or more newspaper or for conducting any news agency or syndicate;

6. He further added that Section 4 of the Act ibid provides that service of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination and in the instant case the respondent establishment has claimed that petitioner is no more employee of respondent establishment after 06/07/2007 but respondent has neither produced nor appended with any document to this application which could demonstrate that services of the petitioner were terminated by the respondent on 06/07/2007 strictly in accordance with law. In support of his contention, he relied upon the judgment, passed by honourable Islamabad High Court, Islamabad in Writ Petition No. 451/2016 and Writ Petition No. 2221/2016. Relevant para-06 of the said judgment, announced on 09/11/2016 is hereby reproduced for brevity and convenience:- "Admittedly, the respondents in all the petitions either continue to be or had been employees of the respective 'Newspaper Establishments'. Some of them were not in service at the time of filing the claims / applications before The learned Tribunal. The Act of 1973 has been enacted for the benefit of the employees, inter alia, to give effect to the 'Wage Awards announced from time to lime. The said enactment provides a mechanism for the effective implementation of the 'Wage Board Awards'. Section 2(d) defines 'Newspaper Employee' as meaning any person employed to do any work in, or in relation to, any 'newspaper Establishments' and includes the categories mentioned in clauses (i) & (ii) respectively. The definition by no stretch of imaginations can be construed as covering only such employees who continue to be in service while excluding those who no more remain as such. In all the petitions, it is an admitted position that the petitioners are or were employed in the respective 'Newspaper Establishments'. If the argument advanced by the learned counsel for the petitioners is accepted then it would lead to an absurd situation i.e. that an employee who no more remains in service will be left without a remedy in order to assert a right. Even otherwise, such interpretation would tantamount to reading into the statute something not provided therein. If the legislature had intended to exclude such employees from the definition of the expression 'Newspaper Employees' given in section 2(d) of the Act of 1973, then it would have used expressed and unambiguous language in this regard. With utmost respect and for the reasons already discussed, I am not inclined to concur with the judgment rendered by the Quetta High Court in the case titled as Mayour, Municipal Corporation, Quetta v. Abdul Nabi and 95 others (1986 PLC 764)." 7 In this regard he has also relied upon judgment dated 19/10/2016 authored by the then Chief Justice of Pakistan in C. P. No. 3928/2016 to C.P. No 3934/2016, titled Nidai Millat (Pvt.) Limited v. Liaqat Ali and others whereby, above said judgments of the honourable Islamabad High Court, Islamabad were upheld by dismissal of C.Ps' by the honourable Supreme Court of Pakistan. In support of his contentions, he has also relied upon judgment dated 17/09/2018, passed by this Tribunal in case No. IT/S/7-WBA/23/SM, tilled as State v. Daily Awam, Karachi, wherein it has been held that if a worker is employed to do any work in or in relation to any newspaper establishment and is performing under the control / supervision of the management in the premises of the establishment and is involved directly or indirectly in achievements of the objects of establishment i.e. publications of newspaper then he would be considered to be an employee of the establishment for all intents and purposes and would be entitled to the wages in terms of the Wage Board Awards. In this regard, reliance is placed on judgment, passed by the honourable Supreme Court of Pakistan reported as 2013 SCMR 1253 titled Fauji Fertilizer Company v. NIRC and others, wherein, the honourable apex Court has held that in case where an employer retains or assumes control over the means and methods by which work of a contractor is done, it may be considered that the relationship of employer and employee exists between him and employees of the contractor. Further, an employee who is involved in running of affairs of the company, under the direct supervision and control of the company, working within the premises of the company, involved directly or indirectly in manufacturing process, shall be deemed to be employees of the company. In order to further strengthen his contention, the authorized representative has also relied upon the judgment rendered by the apex Court, reported as 2018 SCMR 1181 titled as State Oil Company v. Bakht Siddiqui and others. Relevant portion is reproduced hereunder for convenience:- "Companies / Industries had adopted the practice of outsourcing the employment of posts which were permanent in nature

Record showed that employees in question had been in service starling from as far back as the year 1984- Outstanding of employees seemed to be a sham or pretence - Employees in question, even if assumed to be employees of contractor, had been performing duties of permanent nature and should have been regularized - Supreme Court directed that employment of the employees in question shall be regularized with effect from the date when they approached the High Court through the Constitutional petition but for their pensionary benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they joined service of the company - Petitions for leave to appeal were dismissed accordingly."

8. He has further relied upon judgment dated 20/05/2015, passed by this Tribunal in case titled as Masood Majid Syed v. Daily Pakistan, wherein it was held that if a right has accrued to the petitioner during service, he can approach this Tribunal even after severance of his relations with the establishment through resignation or termination as the case may be. In this regard he further relied upon judgment reported as 2019 PLC 130, wherein it was held as under :- "Company had contractual relationship with contractors / service providers who had been paying salaries / wages to the employees. No privity of contract existed between the Company and service provider and even between Company and workmen. Workers who performed the work at the premises of Company and whose services were engaged by the contractors / service providers were in fact employees of the Company. Work performed by such workers was of permanent nature."

9. The authorized agent further submitted that even otherwise, this Tribunal has ample powers under sections 13 and 13A of the Newspaper Employees (Conditions of Service) Act, 1973 for the implementation of Wage Board Award and in order to conduct its proceedings, this Tribunal has also been vested with additional powers as provided under section 16A of the Act ibid. Furthermore, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and provision of erstwhile Industrial Relations Ordinance, 1969 (XXVIII of 1969) and presently Industrial Relations Act, 2012 are also applicable to the Newspaper Employees or in relation to workman of newspaper establishment, therefore by drawing an inference from the definition of "Worker and Workman" case of the petitioner does fall within the ambit of law as the above said definition of Worker and Workman provides - "(xxxiii) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or a contractor whether the terms of employment are express or implied."

10. Hence, respondent has no authority under the law to deny its relationship with petitioner He further submits that the denial of relationship by the respondent is nothing but a desperate and shameful attempt to frustrate the legal proceedings before this Tribunal. Hence, application merits dismissal with costs.

11. In view of the above, I have given anxious consideration to submissions, put forth by both sides and after careful perusal of the file and documents annexed therein with the assistance of both sides, in light of the judgments of the apex Courts, relied upon by authorized representative of the petitioner as well as various provisions of law, I intend to agree with the contentions made by authorized representative, as the Apex Supreme Court of Pakistan has held that the words 'employed by the company' are wide enough to include workmen employed by the contractors of the company. The employees of the contractor shall be the employees of the company, if the contractor engaged the workers for running of the affairs of the company and not for some other independent work, which has no concern with the production of the company, which constituted one of the principal organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company, the employees engaged directly or through a contractor would be deemed to be the employees of the company whose benefits they perform functions, even though control test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test; and if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights / benefits, the so-called contract employees will have to be treated as employees of the company.

12. It would also be pertinent to mention here that similar view is taken in another judgment by the honourable apex Court, reported as 2018 SCMR 157, titled as Abdul Ghafoor and others v. The President, National Bank Pakistan. The apex Court held that:- Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contract executed directly between them and the bank for different spans of 11 months, from time to lime. Serves rendered and work performed by the petitioners was of permanent nature. Like any other employee or worker, the petitioners were rendering manual services for the Bank. Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors" instead of 'contract employees' and "contract employment". Since the petitioners for all intents and purposes were engaged /employed by the Bank and were being paid salary/compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank. Supreme Court directed the bank to regularize the services of the petitioners as permanent employees. Appeal was allowed accordingly.

13. Similarly, the Lahore High Courl, Lahore in judgment reported as 2001 PLC 124, titled as Muhammad Akram v. Umer Hayat and 2 others has held that Employees even if they had received benefits from employer, would not be estopped to file grievance petition before Labour Court and further held that, contention that employers were well within their right to terminate services of 50% of staff of their own choice was repelled.

14. At this point of time, it is pertinent to mention here that it has become a practice on pad of the employer to frustrate not only the provisions of law for the time being in force but also to deny the fundamental rights of life, trade, service and family of employees by adopting deceptive measures in order to deprive its employees from their legitimate rights as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 and outsourcing of service is just an example. In this regard, guidance is sought from the dictum laid down by honourable Apex Court that courts cannot close their eyes but could lift corporate veil for purposes of ascertaining real motive behind a scheme. Correct approach for sanctioning of a scheme was that the same should not be scrutinized in the way of a carping critic, a hairsplitting expert a meticulous accountant or a fastidious counsel, each trying to find out from his professional point of view what loopholes were present in such a scheme. What technical mistakes have been committed or what legal rights of one or other sides have not been protected. In this regard, reliance is placed upon PLD 2019 SC 250 and 2018 CLD 15, wherein, the apex Supreme Court of Pakistan held that accused could not be given the benefit of corporate veil when the National Accountability Ordinance, 1999 empowered the NAB authorities to pierce the veil of incorporation and prosecute the real person under whose dictate and command affairs of offending corporate entity were conducted and to find out who was the actual beneficiary of crept, committed under the Ordinance.

15. For what has been discussed above, application filed by the respondent under Order VII, Rule 10 read with section 151 of C.P.C, 1908 and Section 13(1)(c) of the Newspaper Employees (Conditions of Service) Act, 1973 is hereby dismissed and respondent is directed to provide detail of the company i.e. M/s Total Media Solutions (TMS) and M/s Value Added Services Corporation (VASC, in other connected cases) along with their legal status / documents, incorporation Certificate, List of Directors, Memorandum and Article of Association, audited accounts of the company and agreement executed between above said companies and the respondent establishment before the next date of hearing, to proceed further in the matter.

16. Adjournment for 16/01 of 2023. MQ/3/ITNE/ Application dismissed.