1976 PLP 599 (PLC)

(i) The applicant cannot resort to section 6 of the Essential Services (Maintenance) Act, 1952. (ii) The applicant were not employed by the Company and there was no privity between the applicants and the Company. As regards (i) above, the Notification under which these organizations have been covered under the Essential Services (Maintenance) Act, provides for "all employment in or in connection with the Oil Refineries and in or', in connection with organisations, dealing with production, purification, transmission, distribution or marketing of Oil or Natural Gas". The Contractor had employed labour in connection with the transmission and distribution of natural gas and the workers so employed were, therefore, covered under the said Notification. This being the position the Commission B is competent to regulate the terms and conditions of employment and wages of the workman employed by the contractor. As regards (ii) the Essential Services (Maintenance) Act, does not define the "employer" or "workmen" and as such reliance has to be placed on the definitions given in other labour laws. In this connection clause (viii) of section 2 of the I.R.O. may be referred to which defines "employer" in relations to an establishment as any person or body of persons whether incorporated or not, who or which employs workmen in the establishment under a contract of employment. Under Clause (xxviii) of section 2 of the I.R.O. a "workman" has been defined to mean any person not falling within the definition of employer who is employed including employment as a supervisor or any apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied. It, therefore, implies that the employer in this case shall be the contractor who bad entered into a contract with the company, as under the contract signed between the company and the contractor the latter was responsible for engaging and making payment to the labour for the execution of the contract. The argument of the legal representative of the applicant relating to the application of the Essential Services (Maintenance) Act, has already been dealt with above and is acceptable. It is, however, not understood as to how the execution of work and the employment of workmen for the execution of that work can be treated separately. The workers were naturally employed for execution of the work and they were employed by the contractor and as such the employer in that case fn view of the defi nition as given above becomes the contractor and not the Company. The respondent's plea has been that there was no privity between the applicants and the company and the applicants have not rebutted this point. The provisions made in the I.R.O. in so far as definition of employer and workman are concerned go against the applicants and similar is the case with the special provisions made in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. I may say that because of the peculiar nature of work in the construction industry there have been complaints against the contractors who usually engaged workmen and subsequently made the principal responsible for payment of their wages and other benefits. Under the amended Act of 1973 a new clause (bb) was added below section 2 of the Standing Orders Ordinance, as under- "(bb).-'Construction, industry' means an industry, engaged in the cons truction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway road, tunnel, bridge, dam viaduct, sewer, drain, water work, well, telegraphic or telephonic installations, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundations of any such work or structure." Similarly sub-clause (c) defined the employer in any other industrial or commercial establishment, as any person responsible to the owner for the supervision and control of such establishment and establishment of a person who directly or indirectly employed workman in connection with any construction industry was covered under the definition of "industrial establishment". In order to give protection to the workmen employed in the construction industry special provision was made under Standing Orders as under "14-A. Special provision for construction workers.- Provided that where a workman is re-employed within one month of his retrenchment or discharge, he shall be deemed to have been in continuous service of the contractor or employer notwithstanding the interruption caused by his retrenchment or discharge but no wages shall be paid to him for the period of interruption." In view of the position stated above, I am of the view that the appli cant is not an employee of respondent No. 2 i.e., Sui Gas Transmission Company Limited. In this connection the respondent has ailed a copy of an agreement between the contractor and respondent No.

2. That being the position the applicant is not entitled to seek any relief from respondent No.

2. I have also noted that the documents attached with the comments show that prior to making this application the contract between contractor and respondent No. 2 had terminated in September 1974 while this application has been made in November 1974. The Chairman of the Commission by virtue of its powers regarding regulation of conditions of services is empowered to take up the cases of re-instatement of employed persons under the Essential Services (Maintenance) Act. Since the contractor's establishment is no more an Essential Service the question of regulating wages of the persons employed- with tie contractor after termination of the contract does not arise and as the case does not fall within the jurisdiction of the Commission. I, therefore, dismiss the application. Since common questions of law and facts are involved in the following applications, this decision will apply to those applications as well. Briefly stated the present order governs all these applications which are accordingly disposed of (1) Applications registered under Nos. 18 (132)/74 to 18 (212)/74. (2) Applications registered under Nos. 12 (214)/74 to 18 (227)/74.