1971 PLC 76 (PLP)

The first, party has claimed that there are 64 workers in the factory of the second party and they] have given a list of these, 64 workers. They have also produced the attested copy of the inspection report of Mr. Shamsul Haque, Labour Officer of Narayanganj, dated. 30-5-70 in which the said Labour Officer in a visit of the said factory found 55 workers present. the break up of which is as follows: Calendar Section 18 Dying Section 17 Tailoring & Cooly 18 Clerk 1 Cook 1 The original report of Mr. Shamsul Haque vas called f or and he also was examined in this case. In his deposition Mr. Shamsul Haque stated that he visited the factory of the second party on 16-5-70 at 11 a. m., he remained in the factory premises for about1 hours in between the change of shifts and therefore he was in a position to, count the non-worker of both shifts. The shift changed at

12. He made a physical verification of the difference, sections. Before that he told the Manager to oust the non-workers from the factory at the time of physical counting of the workers. His order was complied with by the Manager. He saw each of the workers and called them each, asked their names and pre pared his report, which is exhibited in Court as Exh. l. In cross-examination he said that on the direction of the, Assistant Director of Labour he went for inspection. The endorsement of the Assistant Director of Labour on the, peti tion of complaint of the first party was marked Exh.

2. The witness further said that he found 14 or 18 workers in-. the Attendance Register. He was told by the Management that other people working there were the contractor's men. He found 3 coolies and 15 tailors. He was told by the Manager that contractor paid these 18 persons. The witness pointed out that as per section 2(p) of the East Pakistan Factories Act, 1965 anybody working within the factory premises was a `worker' and so he counted all the persons working within the factory premises. Mr. Adris Ali Qazi, Manager of the factory who deposed on behalf of the second party, claimed that they have only 34 workers. This version contradicts their own statement given in their written statement, As a clarification the witness further said that cook was the employee of the company and the coolies also were the contractor's men. He further said that they have only 3 singer sewing machines and there are 7 workers in the tailoring department. He said that the machines belonged to Wazuddin contractor. He said that they have one shift from 8 a. m. to 4 p. m. with half an hour's break at 1 p. m. He further said that the Labour Officer did not count other workers except bleaching and dying sections the number of which was

34. However, in cross-examination this witness also admitted t-tat the Labour Officer told him to ask the non-workers to leave the factory premises and accordingly he told the non-workers to do so. He however said that in spite of his direction some people remained in side to see the fun. He said that there were other Factories nearby. But he admitted that the factory gate was closed from inside so that no outsider could come and that there was no fun. He said that they have two sections-calendaring and bleaching and there were 19 and 17 workers respectively and thus by this account the number of workers came to 36 and be has, therefore, contradicted himself. He has, as usual, disclaimed the tailoring section as he said that this was being managed by the contractor. The definition of `worker' as given in sec tion 2(p) of the East Pakistan Factories Act, 1965 is as follows: "2(p) Worker means a person employed directly or through any agency, whether for wages or not, in any manufacturing process, or in clearing any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to or connected with, the manufacturing process or the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is carried on." From this definition it appears that all the workers em ployed directly or indirectly through agency such as a con tractor within the same premises are to be regarded as workers of the same establishment and therefore, while counting the total number of workers we have to take all the workers into account whether they are engaged by the contractor or by the principal employer. In the present case even after excluding the cook we find from the report of the Labour Officer that the total number of workers as found within the premises during the inspection was

54. The witness of the second party also admitted that apart from the Tailoring section, there were 36 workers. On a scrutiny of the evidence I am inclined to believe the version of the Labour Officer who said that there are 18 workers engaged in the tailoring section including coolies in, this connection section 5 of the East Pakistan Minimum Wages (Fixation) Ordinance; 1969. is quoted. The section is as follows: "

5. Every employer shall be responsible for the payment of minimum wages required to be paid under this Ordinance to all unskilled workers employed, either directly or indirectly through a contractor, in his commercial or industrial estab lishment." It therefore, appears that whether the contractor pays the coolies and the tailors or not, the number of workers in the factory in question under the Management and the establishment of the second party is more. than 50 and that the provisions of the Minimum Wages (Fixation) Ordinance, 1969 would be applicable to this establishment. The workers would be entitled to get minimum wages of Rs. 125-00 per month. The provisions of the East Pakistan Minimum Wages is right guaranteed by the said Ordinance to the workers of the factory wherever the law is applicable, and therefore, the application under section 34 of the Industrial Relations Ordi nance is maintainable. The dispute was also raised by the first party according to the prescribed procedure given in the I.R.O. For all these considerations I find that the number of workers employed under the second party is more than 50 and therefore, the provisions of section 3 (I)(a) of the East Pakistan Minimum Wages (Fixation) 'Ordinance, 1969 would be applicable to all the workers working in the establishment of the second party. The award of the Court, therefore, is that the second party shall pay minimum wages as prescribed in section 3(1)(a) of the East Pakistan Minimum Wages (Fixation) Ordinance, 1969 to all the workers in their establishment with effect from 1st July 1969, and that the award shall be implemented within 30 (thirty) days from this date. I have consulted the members and taken their written opinion and the members have agreed with my findings above stat ing that there are more than 50 workers' in the factory and that the East Pakistan Minimum Wages (Fixation) Ordinance, 1969 would be applicable in the second party's establish ment.