1993 PLP 500 (PLC(CS))

This appeal calls in question the order of the Labour Court dismissing the application filed by the petitioner for his reinstatement under section 25‑A of the I.R.O., 1969.

2. The circumstances forming the background of this appeal can be summed up in the following words.

3. It is alleged that the petitioner was employed by M/s. Thai Airways International as Traffic Officer on 13‑5‑1985 with his posting at Karachi Airport. Notwithstanding the designation given to him, "he had been performing clerical nature of job throughout his service". However, on 23‑8 1989 he received a letter from M/s. Temporary Services Enterprises terminating his services, with whom he had no bonds. He had, therefore, sent a grievance notice both to M/s. Thai Airways International and the Temporary Services Enterprises for the redress of his grievance and finding no satisfaction had to seek remedies from the Labour Court.

4. M/s. Thai Airways International in their Reply Statement denied that there was any tie of employer and employee between them and his services had been secured by the respondent No. 2 on a temporary basis. The respondent No. 2 also owned that the petitioner was working with them but only on temporary basis. They, however, denied the receipt of the grievance notice.

5. The petitioner was his own witness while Mrs. Kamal Sukhia appeared on behalf of the respondent No.

1. An affidavit of one Rointon Patel was filed R on behalf of the respondent No. 2 but as he was not made available for cross examination the same has to be excluded from consideration.

6. The Labour Court found that the notices had not been served on the respondent No. 2 and no privity of contract having been substantiated between the petitioner and respondent No. 1 dismissed the petition.

7. The petitioner all along insisted that he was an employee of respondent No. 1 i.e. M/s. Thai Airways International. The letter of appointment is on the record and that was issued by the respondent No. 2 i.e. M/s. Temporary Services Enterprises. There are a number of monthly payment vouchers produced and those are also from the Temporary Services Enterprises. Mrs. Kamal Sukhia, who is the Executive Secretary and Personnel Incharge with respondent No. 1, has clearly stated that the respondent No. 1 has a total strength of 15 regular employees and a strength of 15 other temporary personnel, whose services had been supplied by the respondent No.

2. She had added that the petitioner was an employee of the said contractor and was receiving his pay from them. She testified that the letter of appointment was also signed by the petitioner in acceptance of the terms and conditions of his service and she was familiar with the petitioner's signature. She was subjected to cross‑examination but held her ground. It is true that there are certain documents from M/s. Thai Airways International, respondent No. 1, to the Airport Security and Police Authorities in which the said respondents have owned him as their representative authorised to carry on work as Traffic Officer but that has got to be considered in an altogether different perspective. The authorities recognised and dealt with the Thai Airways International and not with any contractor working on their behalf. The responsibilities of respondent No. 1 were total in that context and could not be shifted. There is nothing beyond this to show that the relationship of employer and employee subsisted between them. The proceedings against them are therefore totally unsustainable:

8. There can be no gainsaying the fact that the petitioner had sent the notice to respondent No. 2 with the address he had from the respondent No. 2 i.e. 9 ‑‑ Preedy Street, Karachi. This is the address given on the letter of appointment and also on the letter of termination and the petitioner had despatched the notice on the only address known to him. He had produced the postal receipt and also the undelivered envelope which was opened in the Labour Court. The presumption, therefore, under section 26 of the, General Clauses Act, would be that he had sent the notice at the only address known to him and if the respondent No. 2 had given incomplete address or a fictitious address it is not the petitioner who had to suffer for the same. Admittedly the service was effected by the bailiff of this Court through the counsel of the respondent No. 1 with a different address. I am, therefore, clearly of the view that the notice was duly sent to the respondent No. 2 and very much within time, a fact which is not disputed and which is not capable of any dispute.

9. The question to see is whether the appellant is a workman and if not the petition itself would not lie. Admittedly the petitioner was appointed as a Traffic Officer. The duties of a Traffic Officer have been placed on the record. and there is nothing to show that he had anything to do at the office at all. Even in his petition, he could not say anything beyond this that "he had been performing clerical nature of job throughout his service". The same is true about his affidavit. Mrs. Kamal Sukhia has stated that the document Annexure "D" which is the Charter of Duties is read as a matter of practice by all the Traffic Officers. This Charter mentions that the functions, will be to operate incoming and outgoing flights in collaboration with other Traffic Officers and their status will be as Traffic Officer etc.

10. There is no reason to look askance at the testimony of Mrs. Kanial Sukhia, and there can be no question at the Airport of any duties of clerical or manual nature. I have, therefore, got no hesitation in holding that the appellant was not a workman within the definition of "workman" as to be found under section 2(i) of the Standing Orders Ordinance. The petition, therefore, itself would not be competent.

11. It is true that the termination letter does not meet the requirement of law but as the petition itself is incompetent it will be an essay in futility to advert to the same.

12. In the result I will uphold the order and dismiss the appeal. H.B.T./2169/Lb.S Appeal dismissed.