1979 PLP 316 (PLC)

"Section (2) (f ).‑(i) "Industrial establishment" means 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 person who, for the purpose of fulfilling a contract with the owner of any industrial or commercial establishment, employs workmen ;" By Ordinance XVIII of 1972 (which later became Act V of 19721 the aforesaid sub‑clause (iv) of clause 'f' of section 2 was substituted by following sub clause (iv). "(iv) the establishment of 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 Explanation 'Contractor' includes a sub‑contractor, headman or agents ;"

5. By Ordinance LI of 1972 (which became Act XXXIII of 1973) the Legislature inserted between the aforesaid sub‑clause (iv) and the explanation following sub‑clause (v);

"(v) the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry:'

6. By the same Ordinance (LI of 1972) the Legislature added clause (bb) to section 2 of the Standing Orders Ordinance, which clause reads as follows :‑ "(bb) "construction industry" means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demo lition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, waterwork, well, telephonic or telegraphic installation, 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 ;".

7. Apart from the aforesaid amendments in the definition section by the aforesaid Ordinance LI of 1972, the Legislature introduced a new Standing Order No. 14‑A which reads as follows :‑ "14‑A. Special provision for construction workers.‑Where any workman is retrenched or discharged by a contractor or any employer engaged in the construction industry due to completion, cessation or discon tinuance of work, he shall be given preference for employment in any other similar work undertaken by the contractor or employer within a period of one year from the date of such retrenchment or discharge 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."

8. It follows from the aforesaid amendments that until Ordinance, LI of 1972 dated 14th November, 1972, the construction industry was outside the purview of the Standing Orders Ordinance and not only that but the Legislature while bringing this industry in the ambit of the Act, also felt it necessary to introduce a new Standing Order 14‑A, to meet exigencies related to that industry. The amendment referred to above, read as a whole, brought workmen employed in construction industry, and those working at construc tion sites within the purview of the Standing Orders Ordinance. The la as stood earlier, however, was limited in its application to establishment o a person who for the purpose of fulfiling a contract with the owner of an industry or commercial establishment employed workmen, which definition was not capable of reaching workmen employed by construction companies at construction sites. The argument that the amended law was declaratory of the law as it previously stood is also not justified for the reason that there is nothing in the amending law to indicate that it was enacted to remove any doubt, explain the law as it formerly stood or correct any, omission or error. It may further be noticed that the amending laws in their preamble state that the intent was to amend the existing law. We are, therefore, of the view that on the relevant date when the unamended law was in force the petitioners' site establishment did not come within purview of the Standing Orders Ordinance.

9. Coming to the second contention that even if the Standing Orders Ordinance applied to the petitioners' site establishment, the respondent workman was not permanent workman. Mr. Qadir Hussain Sayeed the learned counsel for the petitioner invited our attention to the definition of a permanent workman in Standing Orders Ordinance. Standing Order No. I defines permanent workman as a workman who has been engaged on work of permanent nature likely to last for more than nine months and a temporary workman is a workman who has been engaged for work which is of an essentially temporary nature likely to finish within a period not extending nine months. The onus was on the respondent‑workman to show that he' was engaged on an assignment of a permanent nature and more so in the present case, for the work that he was employed to do was completed in less than nine months' time. The respondent workman in his cross examination stated as follows "My service was transferable and hence although the work on Tin Hati where I was employed has completed I can be transferred to some other work of the respondent‑Company."

10. There was thus clearly an admission on the part of the respondent workman that he was employed to do work at Tin Hati and since this work was admittedly not of a permanent nature and was completed in loss theca nine months' time he was a temporary workman whose services could, under Standing Orders be dispensed with without notice.

11. The result, therefore, is that impugned order made by the Labour Court is set aside as without lawful authority but in the circumstances there will be no order as to costs. Petition accepted.