1976 PLP 350 (PLC)

The National Refinery Contractors Western Engineering Works, Labour Union has made this application for regulating the terms and conditions of employment of the workers employed by Dilawar Khan, Proprietor, Western Engineering Works, Karachi under section 6 of the Essential Services (Main tenance) Act, 1952. The Union has contended that the respondent No. 2 has refused continuous employment of 36 workers and has withheld the wages of Faqir Mohammad and Maula Dad, workmen. It has also been stated that the matter was finally, resolved on 20-12-1972 in the office of the then Authority under the Essential Services (Maintenance) Act, 1952. The terms of the agreement were as under: - (i) All the workers will be paid lay of at half wages and the payment will be made at least by 25th December, 1972 for one day of lay off. (ii) Mauladad's withheld wages will be paid latest by 25th December, 1972. (iii) Faqir Muhammad will be paid 50 % wages for 12 days which period will be treated as lay off. The payment will be made latest by 25th December 1972.

2. According to the applicant-Union, the respondent failed to settle the legal dues and the final proceedings took place on 27-7-1974 when respondent No. 2 was required to verify the claim which was avoided by the said respondent No. 2 and the case could not be finalized. in the meantime, the powers of the Authority under the Essential Services (Maintenance) Act, 1952 were vested in the Chairman, National Industrial Relations Commission. The applicant-t Union has also submitted that the Factories Act, 1934 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were applicable to the respondents Nos. 1 and 2 respectively, and that the claim submitted by the applicant-Union is in accordance with the provisions of the Standing Orders Ordinance.

3. The respondent No. 1 has submitted that the application was not maintainable because there was no privity of contract between respondent No. I and the workmen employed by the respondent No.

2. The respondent No. 1 has submitted that he has been wrongly impleaded as he was not the employer of the workmen who were employed by respondent No. 2 in the execution of the contract with respondent No.

1. The respondent No. I also submitted that the establishment of a contractor comes within the definition of "Industrial Establishment" as defined in section 2 (f ) of the Standing Orders Ordinance, 1968 and the owner of such an establishment is deemed to be the v employer as defined in section 2 (c) of the said Ordinance.

4. The respondent No. 2 has submitted that the provisions of Essential Services (Maintenance) Act, 1952 were not applicable in this case and that the application was not maintainable as the claim does not pertain to any terms and conditions of service but recovery of alleged arrears of wages. The respondent No. 2 has denied that the workers stated in Annexure E as submitted by the applicant-Union were ever employ6d by him and that the agreement dated 20-12-1972 was entered into on behalf of Amir Bakhsh Baluch with whom the respondent No. 2 had entered into a contract for the loading, unloading and shifting of Asphalt Drums. It has been submitted by respondent No. 2 that for Asphalt filling into barrels, which was a continuous process, he had employed about 40 workmen but for the Asphalt loading, shifting arid stacking which were of a casual nature, the work was done by sub contractors and the said sub-contractors used to bring their own gangs of workmen different persons in different numbers from tune to time.

5. It is also submitted by the respondent No. 2 that on 18-8-1969 he entered into an agreement with Amir Bakhsh Baluch whereby the latter contracted to discharge the obligations of Asphalt loading and for shifting and stacking of barrels. He has, therefore, submitted that the entire liability for the payment to the persons employed by him was that of Amir Bakhsh Baluch. According to respondent No. 2 another contractor named Hamid was also associated with Amir Bakhsh Baluch subsequently. On the termination of contract with the respondent No. 1, the respondent No. 2 paid to the 40 permanent workmen all legal dues. Respondent No. 2, there fore- also terminated the contract with Amir Bakhsh Baluch. The respondent No. 2 has also submitted that most of the workers who were employed by Amir Bakhsh have since been absorbed by Rio Construction Company who have succeeded the respondent No. 2 as Contractor in the Refinery.

6. Briefly stated the facts of the case are that the Western Engineering Works had entered into a contract with the National Refinery Limited. The contractor who is respondent No. 2, employed about 40 workers. This con tractor, respondent No. 2 entered into a sub-contract with Amir Bakhsh Baluch and Hamid. The workers mentioned in Annexure B were employed by the subcontractors and the respondent No. 2 never interfered with regard to their appointments or dismissal. After termination of the contract, the respondent No. 2 paid all the legal dues to the 40 workmen who were directly employed by him but the sub-contractor failed to do so. It has been admitted that the minutes of the meeting held on 20-12-1972 were signed by the representative of respondent No. 2 and that the Identity Cards were also issued by the officers of the respondent No.

2. Although it was stipulated in the contract that the respondent No. 2 could not appoint sub-contractors, he did appoint sub-contractors.

7. The Union's application relates to payment of wages to Fakir Mohammad and Maula Dad in support of which the applicant-Union has submitted an agreement dated 20-12-1972. The second point raised by the applicant-Union relates to payment of dues to the workers employed through the sub-contractors.

8. As to the first claim, I find that the agreement signed on behalf o respondent No. 2 is actually not an agreement under the Provisions of any law and this could be deemed as minutes of the meeting. I do not think, I can issue any directions for implementation of the agreement as produced by the applicant Union and the applicant-Union, if so advised, may seek remedy through a Court of law.

9. It has been admitted in the evidence that the respondent No. 2 had given the work of loading, stacking and shifting of barrels to sub-contractors Messrs Amir Bakhsh B31uch and Hamid. These two sub-contractors had employed their own workers to execute this work. It has also been pointed out by the respondent No. 2 in his reply statement that the agreement date 20-12-1972 was entered into by him on behalf of the sub-contractor Mr. Baluch. The applicant-Union has agreed that the provisions of West Pakistan Industrial and Commercial employment (Standing Orders) Ordinance, 1968 were applicable to the Contractors. The "Explanation" below sub-clause (v) of Clause (f) of section 2 of the Standing Orders Ordinance, provides than the "Contractor" includes a subcontractor, a headman and an Agent. This being the position the sub-contractors appointed by the respondent No. 2 shall be deemed to be contractors for the purposes of the Standing Orders Ordinance. The respondent No. 1 has also admitted that the Standing. Orders Ordinance was applicable to the Contractors Establishments and that the owner of such an Establishment is deemed to be an Employer as defined under section 2 (c) of the said Ordinance.

10. The claim of the Union relates to termination of employment of the workers and recovery of the dues. As regards termination of employment, I do not find any justification to direct the Contractor to re-employ them after the termination of the contract with respondent No.

1. The respondent No. 2 has also stated that most of these workers have been re-employed by his successor. Suitable remedies for recovery of dues have already been made in the various labour laws. It appears the applicant-Union did not apply told the appropriate authority for recovery of outstanding dues of the workers. I feel this case does not fall within the terms "Regulation of Wages and other conditions of Service" as envisaged under section 6 of the Essential Services (Maintenance) Act, 1952. It is a common ground between the parties that the Standing Orders Ordinance 1968 is applicable to the Contractors' Establishments. Standing Order 20 of the Ordinance provides that the Employer of the Industrial and Commercial Establishment was personally to be held responsible for the proper and faithful observance of Standing Orders, whether or not the workmen of such establishment are employed through contractors. I feel the employer in this case shall be the Pakistan Refinery Limited as Contractor's Labour has been engaged to carry out the work of the Refinery. I do not agree with the view point of the respondent. Now that the employer is the contractor himself because if it were so the word "whether or not the workmen of such Establishment are employed through contractors" would not have been added in this Standing Order. I however, direct that applicant-Union should approach the appropriate authority for enforcement of their rights under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.