1997 PLC 123 (PLP)

These are cross‑appeals arising from order of the Third Sindh Labour Court, Karachi partly allowing the grievance petition of one Muhammad Ishaq but rejecting the prayer for back benefits.

2. The facts are that appellant Siemens Pakistan Engineering Company had employed Muhammad Ishaq as a Fitter in their factory at B‑72 S.I.T.E., Karachi. No written order of appointment was issued to Muhammad Ishaq and he was treated as a daily wage worker. The factory machinery and establishment belonged to Siemens Pakistan but in the year 1988 respondent No.2 Steff Cone was said to have been introduced as a contractor for the work of fabrication. This contractor is said to have removed respondent Muhammad Ishaq on 1‑12‑1988 orally and there was no order in writing given to him nor were any explicit reasons mentioned. Appellant Siemens contended that Muhammad Ishaq was no longer their employee but he was assigned to M/s. Steff Cone and was dismissed by them. That they were given the sole contract of fabrication and they were making payment to Muhammad Ishaq after 1988. An Agreement dated 1st of July, 1987 between Siemens and the Steff Cone has been produced showing that the work of welding, fitting. painting, repairing and maintenance was all given to contractors Steff Cone who would employ their own labour and would be responsible for their wages etc. That the contractors were bound to give all facilities to the workers

3. Mr. Muhammad Humayun on behalf of Steff Cone contractors admits that fabrication work of Siemens was taken over by them on contract basis from 1987 and they were the employers of respondent Muhammad Ishaq as a Fitter. He admits that services of respondent Muhammad Ishaq were terminated but says that there was an order in writing. The letter of termination issued to Muhammad Ishaq has been produced. It is in writing but the reasons given were that he had been rendered surplus to their requirement. This letter is dated 7‑12‑1988 and bears the signature of Muhammad Ishaq. It has further been stated that the payment of wages was by Steff Cone and the receipts of Muhammad Ishaq have been produced. That he was appointed by an order in writing by Steff Cone end the order is produced before the lower Court. It is dated 14th January, 1988. Mr. Muhammad Humayun admits that Steff Cone contractors were controlling the work etc; of Fitter Muhammad Ishaq.

4. The facts and circumstances of the case show that Muhammad Ishaq was not employed by Siemens through the contractor as contemplated by order 20 of the Standing Orders Ordinance but he was doing the work for Steff Cone and responsible to them only.

5. It has, however, been pointed out that the grievance notice was served on Siemens only and not on Steff Cone so he cannot be held liable to the reinstatement and back benefits.

6. Mr. S.P. Lodhi for Muhammad Ishaq, however, states that the grievance notice was addressed to both the parties namely Siemens and Steff Cone but .it was one letter served on Siemens only and no copy was served on Steff Cone. This plea of non‑service has been taken for the first time before the Labour Appellate Tribunal and it was not raised before the Labour Court. Steff Cone contractors cannot, therefore, take the plea of non‑service at this stage. Since they have admitted the case of being employers of Muhammad Ishaq and in fact their job was to take over the liability for the labour and free M/s. Siemens from this responsibility they have to pay for it. M/s. Steff Cone are, therefore, directed to reinstate Muhammad Ishaq Welder in service since their order of termination was defective and the reasons for termination were not explicit as defined under Standing Order 12(3) of the Standing Orders Ordinance.

6. As regards the back benefits they have not been claimed by Muhammad Ishaq either in the petition or in evidence.

7. In the Supreme Court decision, reported in 1991 SCMR 2087 Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, it was observed that back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside. The burden of proof is on the workman that he is entitled to receive the back benefits.

8. In this case the workman has remained silent on this aspect of the case and his plea of not being gainfully employed during the 'period ‑he remained, out 6f service has not‑been taken

9. In? the result the order of the Labour,. Court‑ is set aside? and, , respondent No.2 M/s. Steff Cone C/o Siemens? Pakistan' Engineering Company Limited are directed; to reinstate. Muhammad Ishaq, in service instead? Siemens Pakistan Engineering Company, but no order is? made regarding back benefits for want of specific prayer, and evidence on this account. The reinstatement shall take effect within a period of thirty days. The appeal of Siemens and the Cross-Appeal of Muhammad, Ishaq. Stand disposed of by this common order. H.B.T./70/Lb.S??????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.