1999 PLP 154 (PLC)

(1) 1995 SCMR 257 N.A. (2) AIR 1957 SC India 264; (3) AIR 1964 SC India 355 at paras. 6, 7, 8 at p. 357; (4) AIR 1974 SC India 37, paras. Nos. 28 to 36 pp. 43 ‑ 45; (5) PLD 1959 Karachi 403 (D.B. at p. 406); (6) 1989 PLC 81 Karachi at page 85‑C; (7) 1976 PLC Lahore at pages 761 B, C, D and E; (8) 1995 PLC 680 S. L. A. T. (9) 1993 PLC 937 Full Bench N.I.R.C. (10) 1977 PLC 17 Karachi; (11) 1996 PLC 45 D.B. Quetta; (12) Appeal No.636 of 1992, decided on 21‑1‑1993; (13) Appeal No.323/88, decided on 11‑5‑1989; (14) Appeal No.215 of 1997, decided on 6‑11‑1997; (15) Appeal No. 124 of 1997, decided on 4‑9‑1997; (16) Central Excise and Sales Act, 1944, pp. 25, 26 and 98 ‑ 100 ON THE POINT OF CONTRACTOR (1) 1987 SCMR 1463; (2) 1978 LLJ SC India p. 378 (Hussain Bhai Calicut v. Alath Factory); (3) 1968 LLC p. 260 SC India D.C. Dewan Mohiuddin); (4) 1989 SCMR 888; (5) 1990 PLC 6 (Karachi D.B.); (6) 1981 PLC 908 (Lahore); (7) D.B. Judgment in C.P. No. 409 of 1992 dated 22‑12‑1992 by High Court of Balochistan (now reported as 1996 PLC 45); (8) 1987 PLC 94 by Mr. Justice Ali Nawaz Budhani; (9) Unreported judgment dated 10‑10‑1989 in Appeal No.370 of 1989 by Mr. Justice Ahmed Ali U. Qureshi; (10) Judgment dated 24‑4‑1995 in Appeal No. ??? of 1995 by Mr. Justice Mushtak Ali Kazi (Now reported as 1995 PLC 680); (11) 1994 PLC 90 by Mr. Justice Agha Ali Hyder; (12) Judgment dated 2‑4‑1996 by Justice Mushtak Ali Kazi in Appeal No. 462 of 1996; (13) Judgment dated 10‑4‑1997 in Appeals Nos. 546 to _555 of 1997 by Mr. Justice Mushtak Ali Kazi; 20‑A. Similarly the learned counsel for the appellant Mr. K.M. Nadeem has placed reliance on the latest judgment of the High Court of Sindh at Karachi delivered on 7‑5‑1995 in Constitution Petition No. D‑956 of 1992, 1987 SCMR 1463, 1985 SCMR 257, PLD 1978 Lahore 704, 1974 PLC Note 60, PLD 1966 Supreme Court 684, 1992 SCMR 19 and PLD 1994 Supreme Court 879.

21. I have carefully gone through the principles laid down by the Superior Courts in the abovementioned authorities. The nexus is that the employment through Contractor has been recognised and mainly the following criteria has been laid down for the guidance of the Labour Court to make a distinction between the employees of the establishment and the employees of the Contractor. The hard fact, however, remains that each and every case is to be decided on the basis of the evidence produced by the parties. So also the conduct of the parties in also to be taken in account. The main criteria seems to be as mentioned below:‑‑ (1) Whether the industry has administrative control over the workers; (2) Whether the industry based for the work done by the worker? (3) Whether the industry has power to reinstate and dismiss the worker? (4) Is the work required to be performed by workman and continues to be of permanent nature and was related to process of manufacturing before finished goods were sent into market? (5) Since how long services had been rendered and whether the appellant of emoluments was made from Coffers of the Company? (6) Whether the goods when marketed, bring back proceeds to Treasury of Company itself? (7) Since how long the worker had been performing his duties and putting in labour in connection with manufacturing process? (8) Whether the Contractor is a genuine person and has not been set up for denying the benefits under the labour laws to the workers?

22. I intend to examine the evidence on record in the light of the abovementioned guide lines. The allegation of the respondent workers so mentioned in the grievance petition and the Affidavit‑in‑Evidence has been that they were directly appointed by the Appellant Company after an interview and medical examination. In the original grievance petitions the date of the appointment is given as 19‑10‑1992, i.e. a day after their alleged termination on 19‑10‑1992. But it appears that afterwards they realised their grave mistake of giving the date of appointment as 19‑10‑1992, hence they moved an application before the learned Labour Court for the amendment of the relevant para. of grievance petition about the date of appointment. The learned Labour Court without applying its mind allowed the aforesaid amendment and instead of 19‑10‑1992 a period of two years‑was mentioned in all the grievance petitions. This fact clearly indicates that the worker respondents did not even know about the correct date of their appointments. Normally in such cases as the case is under hand, the burden of proof lies on the establishment to prove that the employees in dispute were in fact the workers of the Contractor and not of the establishment. But in the present case the petition is different. As pointed earlier the workers have addressed common grievance notice to the company as well as to alleged Contractor Muhammad Hussain. So also aforesaid Contractor Muhammad Hussain has been impleaded on respondent No.2. So also in the prayer clause there is no specific prayer that the appellant Company be directed to reinstate the workers, but there is common prayer that the respondents be directed to reinstate the workers. In paragraph No.7 of the Affidavit‑in‑Evidence by respondent Nasir Jamal it is clearly mentioned that the services of the appellant were never terminated by respondent No.1 Furthermore, respondent Nasir Jamal in the last paragraph of his cross‑examination clearly admitted that aforesaid Muhammad Hussain was Contractor in the appellant Company, and he did not know if his contract was ever terminated. All these factors collectively lead to the inference that in the present case the burden lies on the workers to establish that they were not the employees of the Contractor but were that of appellant Company.

23. Even otherwise the evidence on record produced by the workers themselves could not establish their claim that they were the employees of the Company. The reasons for reaching to such conclusions are enumerated as under:‑‑

24. Admittedly no appointment order, interview letter, Medical certificate, and any other document has been produced by the workers to show that they were directly appointed by the appellant Company, or that the appellant Company had any administrative control over them, So much so that they have failed even to mention as to in which Department of the Company they were working and in what trade they were engaged. They failed to give the name of the Department and the name of the person who used to supervise their work on behalf of the Company. Similarly there is no mention of the product which was being manufactured or produced through the labour done by them.

25. Perusal of the grievance petition and the Affidavit‑in‑Evidence of all the workers clearly indicate that the duties, name of the, Department and other details in respect of the work done by them have not been mentioned. In all the grievance petitions and in the Affidavit‑in‑Evidence there are general allegations to the following effect:‑‑ PARAGRAPH 5 OF GRIEVANCE PETITION 5. "That the applicant was doing the same job in the same section, on the same floor and on the same machine and tools as other worker in the section. PARAGRAPH 6 OF AFFIDAVIT‑IN‑EVIDENCE

5. The applicant was, working shoulder to shoulder, with permanent workers, at the same machine with the same jobs and doing the same work, as done by the permanent workers, under the strict control and discipline, of the officers mentioned hereinabove, who are employees of respondent No, 1. "

26. The abovementioned assertions manifestly prove that in fact the petitioners were not permanent workers, and were not working in a specific Department and were not doing specific duties and were not producing a particular product. So much so that workers Nasir Jamal, Imtiaz Hussain, Muhammad Saleem, Nasim Ahmed, Muhammad Bashir, Javed Gilani, Shaikh Imran Ahmed and Nadeem Shahab whose designation in the grievance petitions and the Affidavit‑in‑Evidence has been shown as Clerks/Checkers have claimed in the aforesaid paragraphs that they were working on the same machines in the same Department shoulder to shoulder with the permanent workers. I am at loss to understand as to how the Clerks and Checkers were working in the Machine Shop and were participating in the production of finished goods.

27. Again all the Payment Sheets Exhs. A/1 to A/21 filed along-with the Affidavit‑ in‑Evidence of Nasir Jamal indicates that all of them were the employees of Contractor Muhammad Hussain. Similarly the Social Security Cards produced along-with the Affidavit‑in‑Evidence of Nasir Jamal further indicate that they were employees of Contractor Muhammad Hussain.

28. Again it is admitted fact that none of the respondents was the member of the C.B.A. or any other Union. That no facilities which are given to the permanent workers were being given to the respondents.

29. Similarly it has been admitted in the cross‑examination by Nasir Jamal that the regular and permanent workers were being provided with the uniforms by the appellant Company but no such Uniform was being provides to them. He has further admitted that the Wage Sheets were being prepared y Contractor Muhammad Hussain. He has further admitted that he knew that Muhammad Hussain was Contractor in Pak Suzuki and that he knew Muhammad Hussain and his brother Muhammad Saleem since last 2 years when he came in the employment. He further admitted that none of the respondents were allowed hospitalisation at the expense of the appellant Company. He further admitted that none of the respondents was even confirmed by the appellant Company. Similarly none of the respondents was ever promoted, demoted or charge‑sheeted by the appellant Company.

30. No Pay Slip or other document has been produced by the respondent to show that in fact they were employees of the appellant Company. The most important factor is that during the alleged period of 2 years not a single protest or complaint was made to any authority to the effect that the appellant Company was not issuing appointment Letters to the respondents and they were not being treated at par with the other regular workers of the Company. No reason has been given by the respondent as to why they were discriminated by the Company as against the permanent workers. Only one document dated 18‑10‑1992, Exh. A/1 has been produced along-with the grievance petition to show that protest, was made by the respondents. But that document is not signed by any of the respondents or any of workers of the appellant Company. It is mentioned in the aforesaid document that it is written by all the daily wages workers of Pak Suzuki Motor Company. Obviously since this document is dated 18‑10‑1992, hence the amendment was made in the grievance petitions whereby the date of appointment was changed from 19‑10‑1992 to a period of 2 years

31. It has been observed in a number of cases that the workers are initially recruited by the Contractors, and they perform their duties without any protest and without raising any objection that the benefits are not being given to them. They work throughout years together, but as soon as the contract comes to an end by one or the other reason, they immediately approach the Labour Court with a prayer that they were not the workers of the Contractor but were in fact the workers of the concerned Establishment. This practice is highly deprecated.

32. Similarly the is no evidence to show that the respondents were contributing to the Provident Fund, or they were getting any benefit as a result of settlement between the C.B.A. and the appellant Company. Similarly nothing has been produced to show that they were getting House Rent Allowance, Conveyance allowance and other benefits. Similarly no service record has been produced. Similarly no service record has been produced and there is no evidence to show that they were getting casual, sick and Annual Leave.

33. Since the respondents miserably failed to discharge their burden of proving that they were the employees of Pak Suzuki Company, hence there is no need to discuss the evidence led by the appellant Company. .

34. The learned counsel for the respondents have also pointed out that under Standing Order 20 of the Standing Order Ordinance, 1968 the employer of the Industrial and Commercial Establishment shall personally be held responsible for the proper and faithful observance of the Standing Orders whether or not the workmen of such establishment are employed through Contractors. Reliance is placed on 1978 LLJ 397, 1965 LLC 260 and 1989 SCMR

888. It is further contended that in view of the aforesaid authorities the services of the respondents would not have been terminated by a verbal order. On the other hand the learned counsel for the appellants has plated reliance on 1991 PLD 547, 1985 CLC 2111, PLD 1985 Lahore 169, 1976 PLC 758, 1993 PLC 124, PLD 1997 Karachi 109 and 1987 SCMR 1463.

35. As discussed above the respondents had addressed grievance notices and had presented the grievance petitions against two employers i.e. Pak Suzuki Company and Contractor Muhammad Hussain. I have come to the conclusion, as mentioned above, that they had failed to prove that they were the employees of Pak Suzuki Company, hence the only conclusion is that they were the employees of Contractor Muhammad Hussain and their services came to an end at the time of termination of the Contract between Pak Suzuki Company and aforesaid Muhammad Hussain. Hence the appellant Company was not responsible to observe the provisions of‑ Standing Orders Ordinance in respect of the respondents.

36. For these reasons the present appeal is allowed and the impugned order dated 10‑11‑1997 is hereby set aside. H.B.T./242/Lb.S Appeal allowed.