1988 PLP 914 (PLC)

This petition is directed against the complaints under section 7(2) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1X8 (hereinafter referred to as the Ordinance) lodged by respondent No. 1, of which respondent No. 2 has taken cognizance.

2. The brief facts leading to the riling of the above petition are that the petitioner is a Director, Vice‑President and Manufacturing Manager of Exxon Chemical Pakistan Limited (hereinafter referred to as the Company) which, inter alia, has been carrying manufacturing and selling of chemical fertilizer in Pakistan. The petitioner has been nominated by the Company as the "Occupier" of the factory under the Factories Act, 1934 (hereinafter referred to as the Act). It is the case of the petitioner that on 13‑9‑1979, the Company entered into an agreement (hereinafter referred to as the agreement) with respondent No. 3 for providing canteen facilities to' the employees of the Company, and that respondent No. 4 is stranger to the petitioner and the Company and has been impleaded as proforma respondent since his name also appears as respondent No.

2. It seems that respondent vide his letter, dated 12th February, 1980 informed the Company that he was unable to provide canteen facilities to the employees of the Company. In response to which the Company by its letter dated 13th February, 1980 intimated respondent No. 3 that his above letter, dated 12th February, 1980 was treated as a notice under clause 24(a) of the agreement and the respondent shall continue to provide canteen facilities upto 11th April, 1980 which was mutually extended upto 30th April, 1950 through the Company's letter, dated 6th April, 1980. It further seems that respondent No. 3 finally handed over the charge of the canteen to the Company on 8th May, 1980. However, on or about 13th April, 1980 the Company received copy of the letter of respondent No. 1 addressed to respondent No. 3, whereby respondent No. 1 had directed respondent No. 3 to make payments of the legal dues to M/s Biro Khan, Dur Muhammad, Ali Hassan and other workers. However, on or about 12‑6‑1980 the Company received a letter No. LO/(F)‑SUK‑80/515, dated 10‑6‑1980 from respondent No. 1 advising the Company to make payment of the legal dues of some canteen workers of respondent No. 3, whose list was attached to the said letter. Thereupon, the Company replied through its letter, dated 18‑6‑1980 to respondent No. 1 stating therein that the persons named in the attached list were the employees of respondent No. 3, who ran Company's canteen upto 8th May, 1980; and that respondent No. 1 may communicate directly with respondent No.

3. It seems that on or about 5th August, 1980 the petitioner received a single summon from respondent No. 2 requiring the petitioner to appear before him on 9‑8‑1980 to answer charges in 54 cases. It is alleged that the above summon was received with no copies of any complaints; and that on 9‑8‑1980 the petitioner appeared before respondent No. 2, where he was informed by the clerk of the Court that respondent No. 1 had filed 54 complaints against respondents Nos. 3 and 4 and the petitioner alleging that respondents Nos. 3 and 4 and the petitioner had committed an offence under section 7(2) of the Ordinance. The petitioner made an application on 30‑8‑1980 before respondent No. 2 praying therein, that his name be deleted from the proceedings. He also made another application on the same day raising certain legal objections. The above application has been disposed of by respondent No. 2 by his short order, dated 18‑10‑1980 dismissing the same. The above order reads as follows; "Order dated 18‑9‑1980. Heard Mr. Farooq Ghani on behalf of the respondent/accused Zahid Majid regarding the maintainability of the proceedings, under section 7(2) Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is argued by the counsel that the Court has no jurisdiction to try the offence as alleged against the accused I find no justification in the arguments as section 7(6) of the same Ordinance is very clear on this point, which has vested Labour Court with jurisdiction. Section 7(6) is 'reproduced below:‑‑ `No Court other than Labour Court established under the Industrial Relations Ordinance, 1969 (XXII of 1969) shall try any offence under the Ordinance." In the result I rind no merit in the application and dismiss, it.' The petitioner has, therefore, filed the present petition to impugn the above complaints and the order passed upon his above application.

3. Respondents Nos. 3 and 4 have been served by publication and they were neither present nor were represented by any advocate at the time of the arguments of the petition.

4. In support of the above petition Mr. Mushtaq Memon, learned counsel for the, petitioner has vehemently urged that section 7(2) of the Ordinance is attracted if an employer does any act in contravention of the Ordinance, and since neither the petitioner nor the Company was an employer of the workmen employed by respondent No. 3 for running the canteen, no complaint could have been lodged against the petitioner under the above provision. On the other hand Mr. Sanaullah Khan, who has appeared for respondents Nos. 1 and 2 has urged as follows:‑‑ (i) That the petitioner had alternate remedy by, way of an appeal under section 37(3) of the Industrial Relations Ordinance and, therefore, the Writ Edition is not competent. (ii) That since the petitioner was to provide the canteen facilities to the workmen of the factory they were the employer of the workmen working in the canteen for running the same.

5. It may be advantageous to take up the first submission of Mr. Sanaullah Khan. In furtherance‑of his above submission he has referred to section.37 (3) of the industrial Relations Ordinance, which provides "any party aggrieved by an award given under subsection (1) or a decision given under section 25‑A or section 34 or a sentence passed under clause (c) of subsection (5) of section 35 may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery or passing thereof and the decision of the Tribunal in such appeal shall be final." It has, therefore, been contended by Mr. Sanaullah Khan that the petitioner could have filed an appeal under the above provision, whereas Mr. Mushtaq Memon has contended that the appeal under the above subsection, is provided against an award given under subsection (1) or a decision given under section 25‑A or section 34 or a sentence passed under clause (c) of subsection (5) of section 35 and not against all orders:

6. I am inclined to hold that since the impugned order does not fall under any of the above provisions referred to in subsection (3) of section 37 of 4lfe Industrial Relations Ordinance, the petitioner could not have filed an appeal. 7. .Learned counsel for the petitioner also submitted that if the proceedings and the order passed therein are without , jurisdiction, there is no legal requirement to avail of the alternate remedy by way of an appeal. In support of his above submission he has referred to the following cases; (i) Pakistan and another v. Qazi Ziauddin P L D 1962 S C 440. (ii) Nagina Silk Mill, Lyallpur v. The Income‑tax Officer A‑Ward, Lyallpur PLD1963SC322." (iii) The Murree Brewery Co. Ltd v. Pakistan through the Secretary Government of Pakistan Works Division and 2 others P L D I 97), t 279. (iv) Sky Rooms Ltd. Karachi v. Assistant Collector of Central Excise & land Customs Karachi P L D 1982 Kar. 244.

8. The ratio of the above cited cases seems to be that if the impugned action/order is without jurisdiction, it is not obligatory on the part of an aggrieved party to invoke an alternate remedy provided under the relevant law i;, the form of an appeal or review or revision but he can straightaway invoke Constitutional jurisdiction. I am not inclined to sustain the above objection of Mr. Sanaullah Khan for the reasons already referred to hereinabove.

9. Adverting to the merits of the case, it may be observed that Mr. 11usl1ta(l Memon has referred to clauses 5, 14, 15 and 18 of the agreement, dated 13‑9‑1970 in order to demonstrate that respondent No. 3 was to run the canteen as a contractor and was to employ the staff etc. for running the same. He has also referred to clause 10, which provides that the Company shall pay Rs.24,000 as a monthly subsidy. He has also referred to the provisions of sections 2(c)(N ii) and 10 of the Ordinance: It may be. observed that section 2(c) defines an employer;" means the owner of an Industrial and Commercial Establishment to which the, Ordinance for the time being applies which includes any factory named under clause (c) of subsection (1) of section 9 of the Factories Act, any authority appointed by the Federal or Provincial Government in respect of any in establishment under the control of any .of its‑department and in the ordinance cal such appointment the head of the department and in any other Industrial and Commercial Establishment any person responsible to the owner for its, supervision and control of such establishment. Whereas section 7 penalty and procedure in case where the employer modifies the Standing order, as applicable to his Industrial or Commercial Establishment otherwise than III accordance with section 4 of the Ordinance or contravenes or does any act III contravention of the Standing Orders as applicable to his industrial Commercial Establishment. Whereas section 10 of the Ordinance provides that any wages due to the workman but not paid on the usual day on account of their being unclaimed, shall be paid by the employer on an unclaimed wages pay day in each week, which shall be notified on the notice board as aforesaid and that all workmen shall be paid wages on a working day before the expiry of the 7th or 10th day after the last day of the wages period, in respect of which the wages arc payable if the total number of workmen employed in the establishment is J,000 or less or exceeds 1,000.

10. It may again be observed that the aforesaid 54 complaints were filed by respondent No. 1 under section 7 (2) of the Ordinance. The above provision will be attracted if the petitioner has done any act in contravention of the Standing Orders as applicable to his Industrial or Commercial Establishment. If the petitioner is liable to pay the wages/salary of the canteen staff and if he had failed to pay, he had in fact violated the above Standing Order No. 10 and hence the, above complaints were justified. However, the case of the petitioner is that in terms of the agreement between the Company and the respondent No 3, the canteen staff was to be employed by him and not by the Company and, therefore were they were not liable to pay the alleged wages/salary to the staff. In my view the question whether the petitioner had violated any provisions of the Standing orders is linked with the factor, whether under any provision of law the Company itself ,vas supposed to maintain and to provide the canteen for the workers and to run the same. If there was any such statutory obligation, they should not have passed on the above obligation to in an independent contractor. The further question would arise if they had in fact passed on the above statutory obligation to an independent contractor whether the staff of the canteen could be considered as the persons employed by the Company. Mr. Mushtaq Memon has referred to the following cases In order to contend that in view of the terms of the agreement the staff of the canteen .Was employed by respondent NQ. 3, for which the petitioner cannot be made responsible: (i) Shahab Industries Ltd. Karachi v. Shah Nimroze 1974 P'L r Note 60 at p. 33, wherein the learned Sind Labour Appellate Tribunal, Karachi observed that some of the essentials to find out whether a person was in the employment of a certain industry or not are: (i) whether the industry has administrative control over the worker (ii) whether the industry pays for the work done, by the worker; and (iii) whether the industry has power to reinstate and dismiss the worker. In the above case it was held that the respondent was not in the employment of the appellant but was in the employment of an independent contractor, who was entrusted the work by the appellant for manufacture of Jerricans. (ii) Pakistan Burmah Shell Ltd. Karachi and 3 others v. Sind Labour Court No. IV Karachi and another P L D 1978 Kar.

109. In the above case a learned Single Judge of this Court held that the persons employed on a petrol pump run and managed not by the Pakistan Burmah Shell but by the licence were not the employees of the former. (iii) Muhammad Umer and 25 others v. M. M. lspahani Ltd. Karachi 1980 P L C

888. In the above case the learned Sind Labour Appellate Tribunal, Karachi has held that worker employed by an independent contractor of the respondent Company was not the employee of the respondent Company.

11. Neither the petitioner nor the learned Labour Court has directed his/its attention to the legal aspect highlighted by me hereinabove. In my view, the matter needed further probe, inter alia, on the above questions and could not have been decided on the basis of the preliminary objection raised by the petitioner. The above question should have been decided after recording of evidence and not by just looking into the agreement produced by the petitioner.

12. I would, therefore, set aside the impugned order and would remand the case to the learned Labour Court with the direction to allow the parties to lead evidence on the factual aspect of the above controversy and, thereafter to decide the question, whether the petitioner and/or the Company can be treated as employer of the canteen staff keeping in view the relevant provisions of the relevant statutes and the relevant statutory rules. The petition stands disposed of in the above terms with no order as to costs. S.Q./Z‑53/K Case remanded