1991 PLP 538 (PLC(CS))

Date of hearing: 2nd October, 1989. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. IV at Karachi, dated 5‑11‑1988, whereby the joint grievance petition of the appellants was dismissed.

2. The brief facts of the case are that the appellants claimed that they were permanent workmen employed by the respondents since a number of years but because they were demanding legal benefits, the respondents commenced to Lock‑out from 29‑11‑1986, and subsequently refused to take the appellants on duty, therefore, after serving grievance notice upon the respondents, the appellants filed joint grievance petition praying for reinstatement with full back benefits. The respondents resisted the application on the ground that the appellants were not their workmen but had been employed by their contractors for some period and that the contract of those contractors had expired. They claimed that the appellants have no cause of action against the respondents.

3. I have heard Mr. Shafiq Qureshi, the learned Advocate for the appellants and Mr. I.Q. Hameed, the learned Advocate for the respondents.

4. There is admission of the respondents in para. 7 of their written statement that according to the list supplied by the Contractors, the appellants were employed by the Contractors for certain periods mentioned in that para. This admission would clearly show that the appellants were working in the Mills either as employees of the respondents or the employees of the Contractors. All the appellants have filed their affidavits‑in‑evidence in support of their contentions. They claim to be workmen employed by the respondents who used to pay their salaries and denied to be employees of any Contractor. All the appellants have been put to lengthy cross‑examination in which they have stuck to their above contentions. It is held in 1989 P L C 309, by the learned Division Bench of Sindh High Court, "initially the burden of proof would be on employee to show that he was a workman but where employee had discharged such burden, same would then shift to employer to prove in the negative"

5. In the instant case, the evidence on oath of the appellants coupled with the aforesaid admission of the respondents prima facie shows the. It the appellants were working in the mills as workmen. The burden shifted upon the respondents to prove that they were the employees of the Contractors and in that capacity they were working in the mills. The admission of the respondents in para.7 of the written statement is alleged to be based on the list, allegedly supplied to them by the Contractors. Neither the list has been produced nor any of the Contractors has been examined nor even the Contracts have been produced to support the contention of the respondents that their Weaving Department was being run by independent contractors. The main contention of the learned Representative for the respondents is, that the appellants have no documentary proof that they were the employees of the respondents. The witness of the respondents, Mr Abdul Razzaq Awan, who is Manager Administration, has admitted that they did not issue appointment letters or attendance cards to the appellants because they never remained their workers. If it is held, that the appellants were workers of the respondent then non‑production of the documentary evidence would not raise any adverse inference against them, because admittedly they were not issued attendance cards and the appointment letters.

6. The next contention of the learned counsel is that even under para. 7(a), the appellant Shah Zulam Khan is alleged to have been employed on 20‑8‑1986; Sultan Ghani on 1‑6‑1986; Akhtar Muneer on 16‑10‑1986 and Noor Muhammad on 1‑8‑1986. It is submitted that even if the allegation of the appellants is accepted that they were disallowed to resume duties from 29‑11‑1986, still the period of probation of Shah Zulam Khan, Akhtar Muneer and Noor Muhammad would not be completed by that time. It may be pointed that there is evidence on oath of the appellants to the effect that they were appointed as workmen by the respondents since several years. As against this evidence, the above contention of the respondents is based on certain lists allegedly supplied to them by the Contractors and as already pointed neither the list has been promised nor any of the contractors has been examined to prove this contention. The evidence on oath of the appellants, therefore, cannot be disbelieved merely on this vague allegation with regard to the dates of the appointment of the appellants.

7. The witness of the respondents has further conceded in the cross -examination that the Plant and the Machinery in the mills are owned by the respondents and that it was the responsibility of the Weaving Master to determine the quality of the cloth but the quantity of the cloth was prepared on the instructions of the Sales Department. It has further been admitted that this quantity and the quality of the cloth to be manufactured was conveyed by Weaving Master to the Contractor, which was again checked by him after manufacture and that the yarn and the finished goods were the property of each Unit of respondents. He has further admitted that the finished goods viz., the cloth could not be taken outside the Unit by the Contractor and that the Contractor could not prepare the cloth of his own choice in terms of quality and quantity. He has further admitted that sometimes they even levied fine in case such Contractor did not prepare the cloth in accordance with the specification.

8. In this context, Mr. Shafiq Qureshi, the learned Advocate has relied upon the judgment of the Supreme Court of India in the case of Hussainbhai, Calicut v. Alath Factory Thozhilali Union, Calicut and others, reported in 1978 L.L.J. 397, wherein their Lordships have held that:‑ "The true test is that where a worker or group of workers labours to produce goods or services and these goods or services, are for the business of another, that other is, in fact, the employer. He has economic control over the workers' existence, skill and continued employment. If he for any reason chokes off, the worker is virtually laid off. The presence of intermediate to contractors with whom alone the workers have an immediate contractual relationship is of no consequence, when on lifting the veil, the naked truth is discovered, though draped in a different paper arrangements, that the real employer is the management and not the immediate contractor:' It was further held that Courts should be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances." This decision was relied upon by a learned Single Judge of Sindh High Court in the case of Sindh Employees' Social Security Institute v. Pakistan National Produce Co. Ltd., reported in 1989 P L C 81.

9. It is submitted by the learned counsel for the appellants that in view of the admissions by the witness of the respondents, the appellants, even if they were initially employed by a Contractor, would be deemed to be the employees of the respondents specially in absence of any evidence that they were paid their wages by the Contractors. The appellants, in their cross‑examination had alleged that these Contractors were in fact the employees of the respondents which fact, though denied by the witness of the respondents, is not properly rebutted by examining any one of those Contractors. The definition of a `workman' under Industrial Relations Ordinance, 1969, includes those employees who are hired through a Contractor where terms of the employment are express or implied.

10. Considering all the facts and law discussed above, in my opinion, the appellants are permanent workmen of the respondents and they have been illegally refused from resuming their duties. Admittedly, there is no order in writing terminating their services for any reason. As such, I set aside the order of the learned Labour Court and order the reinstatement of the appellants. The appellants have claimed back benefits, but, there is no specific evidence that during this period they have been gainfully employed or unemployed, therefore, I would award them 50% (fifty per cent) back benefits. This order is to be implemented with in one month. M.Y.H./1556/Lb.S Appeal allowed.