1991 PLP 908 (PLC)

3. In impeaching the orders noted above, learned counsel appearing on behalf of the petitioner raised following points:-- (i) Firstly it was contended that in grievance petition the case of respondent No. 2 was that in order to circumvent labour laws he was put on the roll of contractor and since 1-12-1985, had been working through the contractor. On the strength of this, it was contended that respondent No,2 was employee of the contractor and not the employee of the F.F.C. Reliance was placed on section 2-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). It was urged that neither any written order of appointment was issued to respondent No. 2 nor he was being paid by the F.F,C. (ii) It was next contended that assuming for the sake of argument (without conceding) respondent No. 2 was the permanent employee of F.F.C. nevertheless he shifted to employment of Rab Nawaz contractor on 1-12-1985 and so he was precluded to say that he was the permanent employee of F.F.C. Reliance was placed on Pak Stanvic Petroleum Project Employees' Union v. Wasim A. Zubairi and another 1975 PLC 523, M/s. Grax Ltd., Karachi v. Workers' Union 1975 PLC 715, Tai Din and 44 others v. Punjab Labour Court No. 3, Lyallpur 1976 PLC 758, Karachi Oil Mills Piece-Rated Workers' Union v. Tariq Oil Mills etc, (1977 PLC 345); Sindh Employees Social Security Institution, Karachi v. Philips Electrical Industries of Pakistan Ltd. and another (1977 PLC 447), Farid Ahmad v. Pakistan Burmah Shell Ltd. and others (1987 SCMR 1463). (iii) It was lastly contended that from the perusal of the definition of workman contained in Factories Act, 1914, Industrial Relations Ordinance, 1969 and Ordinance (VI of 1968), it was clear that the workman in the employment of the contractor was not the workman of the company who hires labour through the medium of a contractor.

4. On the contrary, learned counsel appearing on behalf of respondent No.2 supported the impugned decision. It was strenuously contended that Standing Order 20 of Ordinance (VI of 1968) was a clear answer to the contention of the learned counsel for the petitioner. According to the learned counsel, Standing Order 20 ibid cast duty on the employer to adhere to his responsibilities under the Standing Order even with respect to workman employed through Contractor.

5. I have heard the arguments of the learned counsel for the parties at length. The questions calling for determination are:- (i) Whether respondent No. 2 was a workman in the employment of the contractor Rab Nawaz or F.F.C. (ii) Whether the impugned orders are null and void on account of the circumstance that respondent No. 2 was the employee of Rab Nawaz contractor. I will take up the point No. (i) first. Before I proceed to examine the contentions of the parties, it will be appropriate to notice the finding of the Punjab Labour Court as well as the Punjab Labour Appellate Tribunal on this question.

6. After the examination of the evidence adduced by both the parties, the learned Punjab Labour Court, held "that documents Exh. P.1 to Exh. P. 7 show that Muhammad Sadiq served as a Qasid in F.F.C. from 18-10-1983 to 19-2-1986. He joined service on 18-10-1983. The period of service agreement of Saeed & Company commenced w.e.f. 1-12-1985. It is evident that petitioner had been serving as a Qasid in F.F.C. before the execution of services agreement in favour of Saeed & Company. The respondents have failed to prove that the petitioner worked under any contractor from 18-10-1983 to 30-11-1985, therefore, it is clear that he worked as an employee of F.F.C. during that period. His services could not be transferred to the Contractor without his consent. Exh. P.8 to Exh. P. 12 are copies of leave applications of Muhammad Sadiq made during the year 1985 86 which were allowed by Incharge Process Section of F.F.C. Had he been an employee of a contractor, his leave applications would not have been sanctioned by the Incharge of Process Section of F.F.C. So it is clear, that petitioner had been serving as an employee of F.F.C. throughout. Documents produced by the respondent do not refute the claim of the petitioner. Therefore. I find that Muhammad Sadiq was a permanent employee of F.F.C. His services were terminated without any reason. His grievance petition is accepted and 'he is reinstated in service with full back benefits."

7. The Punjab Labour Appellate Tribunal maintained the finding of the Court below in following words:- "Since it is proved that the respondent was employed with the appellant in 1983, without legally terminating his service or without his consent, his services could not be transferred to the contractor nor the contractor could employ him: It is thus wrong that he was employed by the contractor. The learned lower Court has thus rightly directed the reinstatement of the respondent in service. Learned counsel for the appellant has cited 1976 PLC 758, 1977 PLC 447 and 1987 SCMR 1463. In the first mentioned two rulings the employer, employee and contractor have been defined but there is no cavil about this fact. If in reality the respondent had been employed by the contractor, of course, he would have been his employee. But as I have mentioned above, the respondent was the employee of the appellant and is still its employee and thus could not be terminated by the contractor. The question involved in 1987 SCMR 1463 was whether the finding recorded by a Court of fact on the point whether or not the agreement of service had come into existence between the employer and the employee, could be challenged in writ petition. It was held that since the question involved was whether the employee was covered by the definition of workman, it was a mixed question of fact and law and thus the High Court had jurisdiction. It is evident that the ruling is not germane to the present case." Learned counsel for the petitioner impeached these findings only on the ground that the respondent No. 2 had been working in the labour supplied by Rab Nawaz contractor. No argument was adduced with respect to the finding that as a matter of fact respondent No. 2 was employee of F.F.C. and had been working as such since 1983, therefore, I have no difficulty in coming to the conclusion that the finding recorded by the two Courts below, that respondent No. 2 was the employee of F.F.C., is not open to any exception. Even otherwise this finding amounts to a pure inference of fact and cannot be interfered with in the Constitutional jurisdiction unless and until it is shown that it was rendered on the basis of misreading or non-reading of evidence or suffered from error of law apparent on the face of record. No such point was urged.

8. This leads me to determination of the second question. The respondent No. 2 took up the position in his grievance petition that in order to circumvent the labour laws, the petitioner was being shown in the employment of Rab Nawaz Contractor. Whether this circumstance in the grievance petition and evidence amounted to admission or acquiescence to the employment of Rab Nawaz. I am afraid, I do not find any substance- in the contention of the learned counsel for the petitioner. The respondent No. 2 had taken an unequivocal stand that he had been in the employment of F.F.C. since 1983; that no written order of employment was issued to him; that he has been working in F.F.C. in the supervisory control of the company; that he had been paid by the company upto 1985 and then through the contractor. These circumstances were not controverted. Therefore, the contention that these circumstances amounted to admission or acquiescence cannot be accepted. Acquiescence is a specie of E estoppel. It arises, where a party is aware of his right, induced the other party acting upon and on mistaken notion of his rights, sleeps and does not inform him of such, act. In this case, the respondent No. 2 had been all along claiming that he was the employee of F.F.C. and not the contractor. The authorities cited by the learned counsel for petitioner proceed on distinguishable facts and are not applicable to the facts of this case.

9. There is yet another aspect of the case. According to the stance of F.F.C. Rab Nawaz Contractor by a written agreement dated 1-12-1985 has agreed to supply labour to the F.F.C. The labour supplied by him were to work within the supervisory/administrative control of the company. He had not been awarded any independent contract. The argument on the basis of this instrument is beyond point. I feel substance in the contention of the learned counsel for the respondent that the employer of the Industrial and Commercial Establishment shall personally be held responsible for proper and full observance of Standing Orders, whether or not the workmen of such establishment are employed through contractor. The same is the rule laid down in Farid Ahmad v. Pakistan Burmah Shell Ltd. and others 1987 SCMR 1463. In this case dealing with the question of the definition of workman, it was held:- "The learned counsel has overlooked that this question already stands decided by this Court vide its judgment in Mian Munir Ahmad v. The State 1985 SCMR 257, wherein it has been held that a company is not responsible for the acts of the contractor employed by it to carry out any particular work for the company. The misconception on which the learned counsel has based his contention has arisen because of the use of the word "person employed either directly or through a contractor in the definition of the word workman in section 2(xxviii) of the Industrial Relations Ordinance. What was intended by the legislature by this provision was to include amongst workmen or employees not only persons who have been directly employed by the owner or employer but also those who were employed by them through such persons who undertake contracts to supply labour. The word `contract' in this context does not mean persons employed by owner or an employer of a factory or the company for performing any particular work or task to be done in relation to the running of the factory or the company."

10. In the light of foregoing analysis, this petition is found to be without any merit. The order A the Punjab Labour Court and the order of the Punjab Labour Appellate Tribunal do not suffer from any legal infirmity calling for interference in the Constitutional jurisdiction of this Court. Accordingly the petition is dismissed leaving the part is to bear their own costs. H.B3./R-1 /L. Petition dismissed.