1994 PLP 539 (PLC)

It was held that although they are owned by the same partners but they are different entities and ample evidence is available on the record to show that their field of activities as well as the accounts are separate. The employees of four concerns are not connected with each other. This is not the case here as would be seen from the preceding paras. The judgment of the case of Abdul Razzaq (supra) is also not attracted to the case. It was the case under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) where the Commercial and Industrial Establishments have been defined differently. It was a case of the worker who was employed in the office of the industrial establishment. It was held that the clerical department of a factory was included in the definition of the term `commercial establishment' and not in the `industrial establishment'. Now before proceeding any further it is worthwhile to refer to the definition of "establishment" as contained in the original Act which reads as under:‑ establishment' means an organisation, whether industrial‑, commercial or otherwise." While the definition introduced through Amending Ordinance XVII of 1983 reads as under:‑‑ " `establishment' means‑‑ (i) an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (West Pakistan Ordinance No. VIII J 1969), for the time being applies, and, notwithstanding anything contained in section 5 thereof, includes clubs, hotels, orgamsations and messes not maintained for profit or gain and establishments, including hospitals, for the treatment or care of sick infirm, destitute or mentally unfit persons; (ii) a construction industry as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No. VI of 1968); (iii) a factory as defined in the Factories Act, 1934 (XXV of 1934); (iv) a mine as defined in the Mines Act, 1923 (IV of 1923); (v) a road transport service as defined in the Road Transport Workers Ordinance, 1961 (XXVIII of 1961) and includes any class of industries or establishments which the Federal Government may, by Notification in the Official Gazette, declare to be establishments for the purposes of this Act." It would be seen that without adopting the definition by reference to any other statute the establishments declared under such statutes have been treated as establishment for the purpose of this section. It is also clear from section 2 of the original Act as well as the amended Act that the Legislature in its own wisdom did not make a difference between "industrial" or "commercial" establishments. Therefore, all sorts of employments for the purpose of institution would be one. This becomes further clear if reference is made to the definition of "employer" which reads as under:‑‑ "(c) `employer', in relation to an industry or establishment, means any person who employees, either directly or through any other person, any employee, and includes‑‑ (i) in the case of an individual, an heir, successor, administrator or assign; (ii) a person who has ultimate control over the affairs of an industry or establishment, or where the affairs of an industry or establishment are entrusted to any other person (whether called a managing agent, managing director, manager, superintendent, secretary or by any other name); such other person." It is clear from the portion of clause c(ii) underlined that the object was to make the person at the apex responsible under the Act of 1976.

6. Now reverting back to the facts. The petitioner itself got registered as one establishment and started paying contribution. It was only disputed after it was served with a demand notice to pay Rs.15,12,

000. This was a factual controversy, which has been set at rest by the judgments of the respondents. It cannot be agitated in Constitutional jurisdiction. The learned counsel for the respondents rightly referred to the case of M/s. Macdonald Layton Constain Limited, West Wharf, Karachi wherein the Hon'ble Supreme Court approved the finding of the High Court that once an establishment is notified for the purpose of applying the Ordinance to it all its employees wherever working in connection with its affairs shall be ipso facto covered. In this case the judgment in the case of Cowasjee, relied by the counsel for the petitioner as referred to above, was also noted and it was held as under:‑‑ "Learned counsel for the respondent referred to pages 205‑206 of the Supreme Court judgment and Commissioner Sindh Employees' Social Security Institution v. M/s. Cowasjee and Sons (Lighter) 1985 CLC 324 in order to stress that for Islamabad, a separate notification was needed. A perusal of these excerpts 'would At support the contention of the learned counsel for the respondent. The basic rule evolved in the entire authority was that employees of an establishment may not necessary be working physically at the place of its headquarters and that conversely if they work in connection with the affairs of the establishment even outside the place so notified, they shall be covered by the notification." The appeal of the employer was dismissed with these observations. This is not all, while the dispute pertaining to the production of record was pending the Manager of administration of the petitioner wrote respondent No.1 on 12th May, 1992 with reference to Annexure `E' and informed that the claim in respect of Rs.15,12,000 for the period from July, 1976 to December 1986 is admitted and amount has already been recovered by the Institution through the Bank guarantee furnished by the petitioner in favour of the Institution. It was added that over and above this amount the petitioner has already paid a sum of Rs.6,07,893.25, which should by adjusted towards the future payment. This amount was treated by the petitioner as over‑payment and the last paragraph of the order of this Court reads as under:‑ "

2. However, there is a further grievance being raised by the learned counsel that they have already made contribution towards the Employees' Old‑Age Benefit Fund over several years amounting to above six lacs rupees and no adjustment or direction on that score has been made. The learned counsel as well as the official from the Old Age Benefit institution present in Court are directed to examine the account of the petitioner carefully and after such scrutiny to inform this Court whether the petitioner is entitled to any adjustment or not and the reasons for the refusal, if there may be any. * * * * * * * * * I wonder after this order dated 10‑4‑1988 and this clear admission of the petitioner in writing, how this petition was prosecuted while it had been rendered infructuous for all intents and purposes. This attitude has been taken noted by the Supreme court in the case of M/s. Cowasjee. The relevant portion reads:‑ "Unfortunately we cannot help making an observation that the petitioner, in order to deprive a section of labour class employed by them, of due benefits under the Ordinance, took up untenable pleas and adopted such positions which it was difficult to establish, in such a situation under the Islamic dispensation even if the case for both the sides has been equally balanced, in order to advance the command regarding social justice as contained in the Objectives Resolutions the decision to be rendered by this Court would have gone in favour of upholding the workers' right to the Social Security Cover. In the petition before us it is not even a case of equal strength of both the parties." These remarks are fully applicable to the case in hand.

7. The petitioner on the direction of this Court produced the list of the Salesmen employed by it throughout the country. It clearly shows that the Shops and Sale Depots Established by the petitioner are one establishment. I think this was for this reason that right in the beginning the petitioner did not raise this point. This issue was raised to hoodwink the liability or at least delay the payment.

8. The upshot of the above discussion is that there is no merit in this Constitutional petition. The same is dismissed with costs. A.A./S‑456/L Petition dismissed.