1976 PLP 855 (PLC)

The United Builders and Associates, who are the petitioners had received a contract from military engineering service of carrying out work of construc tion of Daur Bridge at a cost of twenty-five lacs and a few thousand rupees. The period allowed for the work was 8 months and the date of commence ment of the work wag given out to be 25-2-1974 and the date of its comple tion 24-10-1974. The respondent Khuda Bakhsh was one of the employees of the United Builders and Associates, the contractors, from an earlier date but it appears, that admittedly he was employed by the Contractor on this work from where his services were terminated for absence without leave on 25-7-1974. The respondent took his grievance against termination of emp loyment to the Junior Labour Court at Rawalpindi and it was disposed of by an order dated 23-10-1974. The Junior Labour Court upheld the contention of the petitioner that the Contractor was working for Daur Bridge which is a defence project and in view of the provisions of section 1 of the Industrial Relations Ordinance. Section 25-A was not available for a person employed on such work as it was connected with the defence and its services. On appeal by the employee the Labour Court recorded the following operative finding while reversing the decision of the Junior Labour Court:

"In this manner the only aspect to be seen is as to whether Daur Bridge was connected with or incidental to the Armed Forces of Pakistan or not. The answer would be in the negative, inas much as according to the contents of letter Exh. RA this bridge is of high national importance. Its construction is related to Kara kuram Highways. This highway is not to be used exclusively by the Armed Forces of Pakistan. It is meant for use of general public and the Armed Forces as well. The mere fact that the construction of the said highway and the bridge in question have been assigned to an organization which is administratively under the Defence Ministry would not in any manner give this bridge the character of an installa tion connected with or incidental to the Armed Forces of Pakistan. This conclusion is further fortified by the fact that the funds for the construction of this bridge have been met out of the civil estimates. The judicial precedent (Gammon (Perk.) Ltd., Rawalpindi v. Muzaffar Khan and 7 others (1974 P L C 10)) relied upon by the learned Court below is distinguishable on merits inasmuch as in that case the concerned workers were employed in connection with works directly connected with the Pakistan Ordnance Factory."

2. Aggrieved by this determination of the Labour Court the employee has invoked Constitutional jurisdiction of this Court. The contention of the employer throughout has been that the provisions of the Industrial Relations Ordinance are not at all applicable in view of subsection (3) of section 1 of the Ordinance.

3. The law to be interpreted is as follows:- ".. Short title, extent, application and commencement.-(l) This Ordi nance may be called the Industrial Relations Ordinance, 1969. (2) It extends to the whole of Pakistan. (3) It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government or to any person employed in the administration of the St4te other than those employed as workmen by the Railways, Posts, Telegraph and Tele phone Departments."

4. The express provisions of the law made the Ordinance inapplicable to any service connected with or incidental to the Armed Forces of Pakistan. If the Army is directly engaged on the construction of a road, or a building or is getting it constructed by employing a Contractor or Sub-Contractors then it is for the time being a matter connected with and incidental to the Armed Forces of Pakistan irrespective of the nature of the construction. As long as the construction lasts and remains the responsibility of the Armed Forces, irrespective of the use to which it will be put when completed the project remains connected with and incidental to the Armed Forces itself. A duty undertaken by the Armed Forces to have it constructed either through its own manpower or by employing other establishes this connection. The source of the finance, the ultimate use of the building are all irrelevant for determining its character while the construction is in the hand and control of the Army Authorities.

5. The learned Labour Court has proceeded on the assumption that what is under construction is a highway and as a highway can be used by the public as much as by the Armed Forces, therefore, its construction cannot be said to be either incidental or a part of the services connected with the Armed Forces. The very fact that guided by the high policy of the State, a project apparently of civilian character has been entrusted to the defence forces would indicate that it has acquired a prominence and importance in which the defence forces have to be directly involved either for ensiling the quality of its construction or for expeditious construction of it. While so entrusted with the duty the Armed Forces get directly involved in discharging that responsi bility and the matter becomes incidental to their very existence and to their functioning. Besides, it is a moot question whether Kara Kuram Highway is just like any other highway or is at present more than a highway and the Army is involved only to the extent of being entitled to its use or more than that. The Defence Budget has a separate provision for civil expenditure which though not a part of the purer defence expenditure is nevertheless a part of defence estimate. The source of finance nor the ultimate use of the project and its utility determines in such a situation the nature of involvement of the defence forces in its construction and completion. The very fact that the defence forces are involved and charged with the duty of getting it completed or constructed makes it their responsibility and so establishes their connection with the project. On this view of the matter a person while employed on such a project through a Contractor or a Sub-Contractor, cannot avail of the provisions of the Ordinance for enforcing the rights conferred thereunder. The decision of the Labour Court impugned in these proceed ings is without lawful authority and of no legal effect and is declared to be so.

6. No order as to costs. Petition accepted.