2011 PLC 133 (PLP)

BASHIR AHMED MEMON (MEMBER).

The present petition has been filed by 47 petitioners under section 22-A(8)(g) read with section 15 of the I.R.O., 1969 claiming themselves to be employed with the respondents as workmen and are employed as Sportsmen on so called yearly basis contract but are in service of the respondents since last 3 to 12 years and their last tenure of contract was made up to 31-12-2010 vide letter dated 14-1-2010 (A.N.). It has been asserted by the petitioners that they were kept on false hopes by the previous management prior to privatization and the management of post privatization has assured them that their services will be intact and continued despite privatization of KESC and shall be appointed permanently after negotiations with CBA on their charter of demands are over but surprisingly despite the fact that charter of demands was concluded the management has issued letter of appointment to the contract employees but the petitioners have been waiting for their such letters and in this context the CBA has also approached the respondent management under their letter dated 19-5-2010 (Annexure "C"). It is stated by the petitioners that they are being called by the respondent management and are being asked for tendering their resignation and in case of failure they are threatened that they will be removed from employment and these actions and tactics constitute unfair labour practice. Therefore the petitioners have prayed for issuance of restraint order against the respondents from stopping their salary, removing them from employment and changing their terms and conditions of employment etc.

2. On admission the interim stay order was passed and notice was issued to the respondents for filing their comments and counter-affidavit.

3. The respondents filed their written comments and objections on main petition and counter affidavit on stay application asserting that the petition was not maintainable as the petitioners were not workmen under the definition of I.R.O., 1969 or other Labour Laws as they do not perform manual or clerical duty and all the petitioners are sportsmen/players and the petition filed by non-workman is not maintainable and is liable to be dismissed. They have further maintained that the petition was not maintainable in law as none of the ingredient of unfair labour practice has been alleged nor claimed to have been violated by the respondents and only wild and bald allegations have been alleged and the petition further is not maintainable as regularization of contract workmen who is non- workmen is not contracted and legal right of the employer and such managerial function of the employer cannot be restrained under the garb of petition alleging unfair labour practice and thus was liable to be dismissed.

4. I have heard arguments of both the learned counsel appearing for the parties and. have gone through the material placed on record.

5. Admittedly the petitioners are Sportsmen engaged by the respondent management and their engagement is on contact and their appointment orders describe: "ENGAGEMENT ON CONTRACT AS SPORTSMEN/ PLAYER" In the engagement orders it is defined that: -- "(i) You will be paid a Stipend of Rs. _____ per month for the duration you are engaged i.e.___________ (ii) (iii) (iv) (v) (vi) (vii) (viii) You are being engaged purely on temporary basis, and your engagement can be terminated any time without any notice will assigning any reason thereof and that you will have no claim for regular appointment in this Corporation in future." This way all the appointments or engagements are made on contract basis and all the engagement orders are produced by the respondents.

6. In certain cases it has been mentioned in the engagement orders that:

"Your engagement on contract as Member KESC Hockey Team w.e.f. 1-5-2008 to 31-12-2008 on a monthly Sports Salary of Rs. _______ This way it has been established that the' petitioners have been engaged for particular purpose i.e. Sports in different field and their appointment order speaks that their engagement is on contract.

7. The definition of workman has been defined under S.O.2(i) of Standing Orders Ordinance, 1968 which reads as under:

"(i) "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

8. It is an admitted position that last contract of the petitioners was extended up to 31-12-2010. The respondents therefore are legally as well as morally bound to retain the petitioners with them upto 31-12-2010 and prior to this they are not to be disturbed and the management is not supposed to discontinue the contract of petitioners and the petitioners are entitled to receive all the benefits as agreed mutually including their monthly salary/stipend upto 31-12-2010. With these observations the petition stands disposed of along with stay application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973. H.B.T./42/NIRC Order accordingly.