P L D 1976 Lahore 1169 (PLP)

This case earlier came up to this Court in the form of W. P. No. 1508/S 1973, titled Rafhan Maize Products Company Limited, Lyallpur v. The Punjab Labour Court No. 3, Lyallpur etc., and was disposed of by, my judgment and order, dated 19‑6‑1975, whereby I remanded the case to the appellate Court which was Punjab Labour Court No. 3, Lyallpur, for fresh decision of the appeal of the petitioners workmen who are forty‑five in number.

2. The brief facts of the case are that the workmen‑petitioners filed petitions under section 25‑A of the Industrial Relations Ordinance XXIII of 1969 against Rafhan Maize Products Company Limited, Lyallpur. The present judgment of mine should be read in continuation of my judgment hereinbefore mentioned and as the facts are given in details in the aforesaid judgment. I need not reiterate the same again. For the purpose of the present judgment, it is sufficient to mention that in their petitions under section 25‑A of the Industrial Relations Ordinance, XXIII of 1969, the petitioners claimed them selves to be the employees and workmen of the respondent‑Company and on that basis wanted to raise certain demands against their aforesaid employer. The Junior Labour Court dismissed the applications of the petitioners vide its order, dated 19‑2‑1973 holding that the petitioners were the employees of an independent contractor Lal tyluhammad and were not employees of the Company. The petitioners filed appeals which were accepted by the Punjab Labour Court No. 3, Lyallpur on 3rd August 1973 and the petitioners were held to be the workmen/employees of the Company. The Company filed W. P. No. 1508/S‑73 which was accepted by me on 19‑6‑1975 and as I was of the opinion that the appellate Court had taken extraneous matters into consideration, I remanded the case to that Court for fresh decision of the same in accordance with law. After remand, the Punjab Labour Court No. 3 Lyallpur, has dismissed the appeals of the petitioners holding that they were employees of an independent contractor Lal Muhammad and not of the Company. This time, the workmen have filed the present writ petition in this Court challenging the aforesaid proceedings and orders.

3. From what has been written above, it will be evident that the sole question for determination in this case is one of fact, namely, as to whether the petitioners are employees of the Company or of the Contractor Lal Muhammad. This is a question of fact as laid down in Dharangadhra Chemical Works Limited v. State of Saurashtra and others (AIR 1957 S C 264) and cannot be taken exception to by High Court in writ jurisdiction. The view of our Supreme Court is also the same where in Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C139) it was held that findings on questions of fact cannot normally be taken exception to in the course of writ jurisdiction in the High Court, even though the view of the authorities concerned thereon may be erroneous. In the instant case, however, I sent fox the record and checked up the relevant evidence which had been led is this case by the parties. I was taken through the deposition of Faqir Muhammad, petitioner, the Social Security Card (Exh. P. 1); Identity Card (Exh. P. 2); another Card (Exh. P. 3); the letter (Exh. R. 1); receipt (Exh. R. 2) and the other material which existed on the file. I similarly attended to the evidence by the respondent‑Company. The learned appellate Court has attended to all this material and neither any misreading of the evidence nor omission to attend to any evidence has been brought to my notice. The question solely is one of appreciation of evidence, and if after examination of A the same the appellate Court has given a verdict against the petitioners, the order of the appellate Court cannot be said to be without lawful authority sup ported as it is by the relevant material on the record. The appellate Court while appreciating the evidence has also properly kept the law on the subject in view. See Chintaman Rao and anbther v. State of Madhya Paradesh (A I R 1958 S C 388), Shahab Industries v. Shah Nimroze (1974 P L C Note 60 at p. 33) and Shankar Balaji Waje v. The State of Maharashtra (AIR 1962 S C 517). All this should be read along with the definition of "worker and workman" as contained in section 2 (xxiii) of the Industrial Relations Ordinance, 1969, wherein it is written that "worker" and "workman" means any person not falling within the definition of employer who is em ployed (including employment (as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a con tractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged retrenched, laid off or otherwise removed from employment in connection with or as a con sequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off or removal has led to that dispute but does not include any person‑(a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature. A perusal of the aforesaid case‑law on the subject indicates that a concept of employment involves three ingredients, (i) empolyer; (ii) employee and (iii) the contract of employment. The employer is one who employs 1. e., one who engages the services of other persons. The employee is one who works for another for hire. The empolyment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision. Eempoly ment brings in the contract of service between the empolyer and the employee. The control of the Management, which is a necessary element of the relation ship 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 preson carries outi'l in the execution of the work. The manner of work is to be distinguished fromII 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‑cut distinction between a , contractor and a workman. The identifying mark of the latter is that he should be under the control and supervision of the empolyer 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 (xvviil) of the Act indicate that the employment is by the Management directly or through some kind of employ ment 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 o the Act is a person who enters into a contract 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 course of writ jurisdiction has been made out for interference with the concur rent finding of fact recorded by the two Courts below on the relevant evidence before them. 4‑ The upshot of the above discussion is that the present petition has no merit and is dismissed with no order as to costs. A. H. Petition dismissed.