2019 PLP 30 (PLC)

ABDULLAH BALOCH, J.

This judgment disposes of instant petition filed by the petitioners against the impugned judgment dated 16-08-2012 passed by the Labour Appellate Tribunal Balochistan, whereby the appeal filed by the respondent No.1 was accepted and judgment dated 31-10-2011 passed by the Labour Court-I, Quetta was set aside. The petitioner seeking the following relief: "It is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare that judgment dated 16-08-2012 passed by respondent No.5 is illegal, passed in excess of jurisdiction, as such, not maintainable, consequently the same may be set aside and the appeal filed by the respondent No.1 may be dismissed, with any other relief and cost of the proceeding through out in the interest of justice, equity and fairplay. "

2. Brief facts arising from the instant petition are that the respondent No.1 filed a grievance petition under section 41 of Balochistan Industrial Act, (BIRA 2010) against the petitioners with the averments that he was appointed as Security Guard along with four others on 14-04-2005 and posted at Kamal Qaimani Tower, Ehsani Union District Barkhan and regularly performing his duties and receiving his monthly salaries upto July 2007, but during the course the salary of the respondent No.1 was stopped, but however have been paid in the year 2009 only for three months being aggrieved on stoppage of salary the respondent No.1 filed representation/grievance applications on 31-10-2009, 02-12-2009 and 20-06-2009, but the petitioners paid no heed to the applications of the respondent, resultantly the petitioner filed grievance petition under section 41 BIRA, 2010 before the Labour Court-I, Quetta.

3. The grievance petition filed by the respondent No.1 was contested by the petitioners/respondents by means of filing written statement by raising legal as well as factual objection on maintainability of the petition of the respondent No.1.

4. Out of the pleadings of the parties, the learned Labour Court framed as many as seven issues, in support of their claims the parties produced their relevant evidence. After hearing the parties, the grievance petition of the respondent No.1 was dismissed vide judgment dated, 31-10-2011. Being aggrieved, the respondent No.1 assailed the same before the Labour Appellate Tribunal Balochistan, which was contested by the petitioners, however, after hearing the parties the appeal of the respondent No.1 was allowed. Being aggrieved the petitioners filed the instant petition.

5. The learned counsel for the petitioners contended that the impugned judgment passed by the Labour Appellate Tribunal suffers from misreading and mis-appreciation of evidence; that the respondent No.1 was initially appointed on 14-04-2005 as Security Guard purely on contract/work charge basis and thereafter his services were transferred to the Contractor Messrs Pacific Security Services Private Limited and he was no more in the service of the petitioners; that all the outstanding dues of contractor have been paid by the petitioners and the petitioners was no more concerned with the employees of the contractor that the contractor was regularly receiving payment of contractual amount from the petitioners for onward payment of salaries of its employees; that the services of the respondent No.1 does not fall within the definition of worker or workmen, as such, the services of the respondents were not governed under the Labour laws; that the respondent No.1 was failed to prove his case through confidence inspiring evidence and the learned Labour Court had rightly dismissed the grievance petition of the respondent No.1, but in contrary the appeal of respondent No.1 was allowed by the Appellate Tribunal, which is not sustainable and liable to be dismissed.

6. Conversely, the learned counsel for the respondent No.1 vehemently opposed the arguments so advanced by the learned counsel for the petitioners and contended that the respondent No.1 was appointed on 14-04-2005 in the employment of petitioners and remained in service till the filing of grievance petition; that half and suddenly his salaries were partially stopped in the month of July 2007, however, thereafter some of his salaries were paid in the year 2009, but thereafter the petitioners flatly refused to pay the salaries of the respondent No.1; that according to Labour Laws, the respondent No.1 rendered his services for more than nine months regularly, as such, his services automatically devolved within the definition of permanent workmen and the petitioners are liable to pay all the outstanding dues of the respondent No.1 in accordance with law; that in support of his contention the respondent No.1 has produced sufficient evidence before the learned trial Court, but the learned Labour Court was failed to properly appreciate the evidence of the respondent No.1 and comes to a wrong conclusion while dismissing the grievance petition of the respondent No.1, however, learned Appellate Tribunal after proper appreciation of evidence has rightly allowed the appeal of the respondent No.1; that the findings of the learned Appellate Tribunal are well reasoning and does warrant interference by this Court.

7. Heard the learned counsel for the parties and perused the record minutely, which reveals that undisputedly the respondent No.1 was appointed as Security Guard along with four others by the petitioners on 14-04-2005 and regularly rendered his services with the petitioners, but suddenly his salary was stopped in the year 2007, however, again his salaries were paid upto 2009 only for three months on such stoppage of his salaries, he had filed grievance applications dated 31-10-2009, 20-06-2009 and 02-12-2009, but the petitioners have paid no heed on the applications of the respondent. Resultantly the petitioner filed grievance petition under Section 41 of BIRA, 2010 before the Labour Court-I, Quetta for payment of his outstanding salaries, which was contested by the petitioners, whereby vehemently denied the claim of the respondent No.1 in support of his case the respondent No.1 produced AW-1 Dad Muhammad and CW-1 Rahimullah Division Engineer of the petitioner, who exhibited the relevant record of the respondent No.1 and during cross-examination categorically admitted that:

8. The respondent No.1 also recorded his own statement in support of this claim while on rebuttal while the petitioners produced their representative Mr. Faheem-ud-Din, Assistant Business Manager, who recorded his statement and admitted in examination-in-chief that the respondent No.1 was appointed on temporary basis on daily wages as Security Guard on monthly payment of Rs.3000/- and the salaries of the respondent No.1 were paid upto July 2007. He also produced the salary slips of the respondent No.1 he further stated that thereafter the petitioner was remained employee of the contractor of the petitioners Messrs Pacific Security Services and the said security agency was paid his monthly salary w.e.f. March to May, 2009 in cross-examination he admitted that:

9. From the bare perusal of above evidence brought on record it was appeared that the respondent No.1 was undisputed remained as employee of the petitioner directly with effect from 14-04-2005 till July 2007 and thereafter allegedly at the well of petitioners his services were deputed to their contractor Messrs Specific Security services and his salaries were partially paid now the question arises that whether the services of respondent No.1 does fall within the definition of "worker or workmen" and his rights of services are governed/ guaranteed under the labour laws? to understand the meaning of worker and workmen it would be appropriate to referred to the relevant labour laws, the basic mother Law is "Industrial and Commercial Employment" (Standing Orders Ordinance, 1968). The sub-clause (i) of section 2 of above Ordinance defined the workmen as under: (i) "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical (work) for hire or reward." Similarly in the Balochistan Industrial Relation Act, 2010, the worker and workmen defined under section 2 (dd) as under: (dd) "Worker" and workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity." Moreover the Industrial and Commercial Employment further provides the classification of workmen as follows: "

1. Classification of workmen (1) Permanent, (2) probationers, (3) badlis, (4) temporary, (5) apprentices. (6) contract worker) While sub-clause (b) of section 2 (g) of schedule standing orders defines a permanent workman as under: (b) A "permanent workman" is a working who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment {and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive-months}." (under lines provided emphasis) In view of the plain reading of above Provisions of Standing Orders Ordinance, 1968 it appears on the record that the respondent No.1 was appointed on 14-04-2005 by the petitioner and remained in service continuously till July 2007 and thereafter his services were allegedly transferred to pacific security service being contractor of the petitioners and admittedly he was received his monthly salaries partially upto May 2009. Hence he was satisfactorily qualified the requirement of a permanent workmen as envisaged under clause (b) of Schedule Standing Orders (section) (g) 1968 i.e. continuous service of nine months, as such, he has availed the status of a permanent workmen. Now the next objection of the learned counsel for the petitioner was that the respondent No.1 was remained in service of petitioner with effect from 14-04-2005 till July 2007 thereafter his services were transferred to Messrs Pacific Security Services and he was no more employee of the petitioner. The objection of the learned counsel does not sustain for the reasons that the alleged security services of the Messrs Pacific Security Services was hired by the petitioner on 01-07-2007 and the same was valid for one year and valid upto 30-06-2008 and nowhere it was brought on record that the same was extended while as per record admittedly the services of the respondent No.1 was retained by the petitioners by their own admission upto May 2009. Even otherwise, nothing was brought on record that any show-cause notice or any written directions were issued to the respondent that he is no more in the service of the petitioners. Even otherwise, if at all it may presumed that the services of the respondent No.1 were transferred to the contractor of the petitioner even than the liability of the services of on employee according to labour laws still would remain with the principal employer as contemplated under sub-clauses (f) and (b) (iv) of section 2 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read as under: "Industrial establishment.

'Industrial establishment' means-- (1) an industrial establishment as defined in clause (ii) of section 2 of the payment of Wages Act, 1936 (IV of 1936); or (ii) a factory as defined in clause (j) of section 2 of the Factories Act, 1934 (XXV of 1934); or (iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or (iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on; or (v) the establishment of a person when, directly or indirectly, employs workmen in connection with any construction industry. Explanation.

'Contractor' includes a sub-contractor, headman or agent. On the basis of above provision of law the petitioner cannot be exonerated from the burden. In this regard we are fortified by the judgments of Hon'ble Supreme Court of Pakistan reported in 1996 PLC 385, wherein it was held that: "A perusal of the above-quoted definition of the terms "industrial establishment" indicates that it includes industrial establishments as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936, clause (j) of section 2 of the Factories Act, 1934, clause (4) of section 3 of the Railways Act, 1890, the establishment of a contractor who directly or indirectly employs workmen in connection with the execution of a contract to which he is a party and includes the premises in which or the site at which, any process connected with such execution is carried and it also includes the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry." In view of the above provisions of law, the respondent No. 1 after completion of probationary period availed the status of a permanent workmen and learned appellate Tribunal had rightly allowed his appeal, the learned counsel for the petitioners has failed to point out any illegality or irregularity in the impugned judgment passed by the learned Labour Appellate Tribunal Balochistan, Quetta warranting interference by this Court. For the above reasons, the petition being devoid of merit is dismissed with no order as to cost. ZC/62/Bal Petition dismissed.