1987 PLP 371 (PLC)

9. Finally his Lordship referring to the cases made the reference of para 8 that the respondent workman, admittedly, was employed as a driver. There is no evidence to show that‑he was employed in connection with docks, jetties or wharves.

10. This matter also went before his Lordship of the High Court. His Lordship set aside the order and had remanded the case for fresh decision to the Labour Court No.IV to record fresh evidence after notice to the parties on the point whether the petitioner was employed in respect of any establishment of industrial nature.

11. After this remand, on these directions, parties have also produced the evidence, in addition to the evidence already recorded namely the affidavit of Ghulam Nabi. He was cross‑examined by the respondent counsel and evidence of Nasar Shaikh who was the Deputy General Manager.

12. In view of this evidence which is on record of the Court this Court has read the earlier affidavit and the subsequent affidavit for the purpose of decision finally.

13. The point for consideration is whether the applicant was employed in respect of any establishment of industrial nature? The Court has earlier pointed that no appointment order is produced by either side to show what was the term and condition at least to draw this inference whether he was a private driver of the Chairman or the Authority or it is contended in the subsequent affidavit that he was driver of the Project Engineer Ch. Nisar Ahmad which also further is confirmed by Nasar Shaikh that this driving again was allocated to the Project Director, in other words even the respondent has admitted that Ghulam Nabi was driving car of the Project Director not in the ordinary capacity as a private servant of the Chairman or the Project Director but in the official capacity.

14. However this Court refers the definition of the industrial establishment given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968: In Industrial Establishment means which is defined in clause (2) of section 2 of the Payment of Wages Act, 1936. In the same Standing Orders Ordinance it is provided that Industrial Establishment also means a factory as defined in clause (j) of section 2 of the Factory Act or of Railway under the Railway Act or the establishment of the contractor who employs workman in connection with the executive of a contract or the establishment of a person who is directly or indirectly employs workmen in connection with any construction industry.

15. In the same Ordinance hereinafter referred, construction industry means engaged in the construction, the maintenance, repair, alteration, and demolition of building, of a dock, harbour, piers, canal or laying the foundation of such work or structure....

16. With this definition, section 1 of the same Ordinance also provides that this Ordinance shall come into force and applies to every industrial establishment or commercial establishment where 20 or more workmen are employed directly or indirectly during the preceding 12 months. This section 1, subsection (4) further clarifies that nothing in this Ordinance shall apply to industrial and commercial establishment carried on by or under the Authority of the Federal or any Provincial Government, where statutory rules of service, conduct of discipline are applicable to the workmen employed.

17. Shortly to put up, it is very clear that the Standing Orders will have no application in case of the rules of service framed under particular statute in respect of those establishments, which are under the Government. In this case particularly it is pointed that no statutory rules are framed, for there was no approval of the Federal Government.

18. The Court also further refers section 3 of this Ordinance which reads that in every industrial or commercial establishment condition of the employment of workman and other incidental matters shall, subject to other provisions of this Ordinance, be regulated in accordance with the Standing Orders Ordinance.

19. The Court also further refers the Payment of Wages Act where the definition is given of industrial establishment which is very plain and clear. In section 2 of the Wages Act, industrial establishment means any: (a) Tramway (b) Dock, wharves or Jetties...

20. For this definition it also appears to follow that the docks and wharves also cover the industrial establishment.

21. In the context of this legal application, the Court now refers the evidence which has been brought on the record and criticised by either side.

22. Ghulam Nabi has supported his earlier affidavit and has stated that at the relevant time when he was working as a driver, it was in the stage of construction of docks, wharves and jetties. It was attached to the Engineering, and his job was to drive the Ford vehicle, for the workmen, who were carried to Jetty. Under the instruction of Project Engineer Ch. Nisar Ahmad he used to drive car and carried him to project carried on by respondent. According to him his duties were inter‑linked with the Jetty which was at the construction stage and under the Engineering Department. In the cross‑examination he has been asked the question whether he had said so in his earlier affidavit when he was the driver of the Chairman. He has denied so that in affidavit of 10‑12‑1979 he has made this statement that he was the driver of the Chairman most of the time. The words most of the time has been underlined by this Court for the purpose as to the effect, when Nasar Shaikh himself has confirmed in his own affidavit that he was the driver of the Project Engineer which Ghulam Nabi has also repeated.

23. In the similar cross‑examination applicant has stated that the berth, docks and jetties were constructed by the foreign contractors. He has no knowledge whether Messrs Mess Pak was supervising the construction but he assured that Port Qasim Authority had the employees engaged in the construction work. He has also denied the suggestion that he was not driving the vehicle carrying port workers. He has also denied the suggestion that he was working with PCI from August 1981.

24. The evidence of Nasar Shaikh is also very important. He has said that Port Qasim Authority was doing the planning and the development of the port and not doing the construction work. The construction work was done by the foreign and private contractors. He has admitted that Project Director was responsible for the planning and development of the port which included construction. The Project Director was also responsible for the Port Qasim. In the earlier affidavit Ghulam Nabi has stated that he worked with Chairman of the Port Qasim Authority and his work was also praised.' Regarding the facts, it is contended that he applied for leave for 25th March, 1978 to see his uncle who was suffering from illness while enjoying the leave, of 23rd March, 1978he was arrested by Tendojam Police and challaned before the Summary Military Court. This fact was intimated to the Director Administration on 25‑4‑1978. It was again repeated on 23‑4‑1978 by his relation. He was convicted for one year and reported for duty after his release. He also stated that he was not asked to explain about his absence by serving notice through Jail Authorities. He also stated that he is a workman to which the Labour Law was applicable.

25. He was also cross‑examined where he was asked to produce the judgment, where he showed inability to produce from the Summary Military Court. In the cross‑examination he also disclosed that the message which was communicated was through Qaimuddin Advocate, Wahid Bux Chandio and Ghulam Nabi Chandio. He frankly admitted that names of those persons were not disclosed in the affidavit but he denied that he had not reported for duty alter his release.

26. In the evidence of Mr. Sherwani before remand who was the Assistant Director Establishment. Mr. Sherwani, stated that applicant Ghulam Nabi never reported for duty after the expiry of leave. No relative came and requested the respondent for the grant of leave. No certificate of acquittal was produced. In the cross‑examination Mr. Sherwani admitted that respondent authority is constructing docks, wharves and jetties. Service rules have not been framed by the respondent. The address of the applicant was available on the record of the respondent. It was not correct that on 26‑3‑1978 Qaimuddin informed the Director Information about the arrest of his involvement in an offence under the Martial Law Regulation. He has also taken a definite stand that any communication was received on 5‑5‑1978.

27. In the additional affidavit of which the Court had made reference of Nasar Ahmed Shaikh and Chulam Nabi it is significant to refer the cross‑examination of the counsel where on page 2 of the cross‑examination of Ghulam Nabi the question is put in the following manner which is underlined:‑ "I do not know whether the termination order was sent to the above address and he refused to receive the same. This question was with reference to the context of the earlier lines where the respondent counsel has asked regarding the address o Qaimuddin which was 66 Aziz Chambers. In other words the reference was to the context that the termination order was sent on this address.

28. Another important feature of the case which referred where in the submission note of arguments of the respondent before my learned predecessor Mr. Rana Bhagwandas respondent has said in para‑. 4 of the written arguments that the respondent authority had a construction department but at the same time he has qualified that applicant was not working in that department. This is on page 49 of the file.

29. With all this evidence available and the legal aspect whether this is an industrial establishment, the Court has referred the definition of establishment both in the Payment of Wages Act and in the Standing Orders. In section 2 of the definition I.R.O., clause (v) is also informative that "the industrial establishment also means an establishment of person who directly or indirectly employs workmen in connection with construction industry". .

30. In view, therefore, of the application of the legal aspect whether Port Qasim Authority was an industrial establishment. The definition industrial establishment under the Payment of Wages Act refers to those establishments where there are docks, wharves or jetties, at the time of termination of the services of the applicant, this position was not disputed. Mr. Sherwani himself has‑ admitted that the respondent Port Qasim Authority was dealing in the construction establishment, and constructed berth, docks and jetties. So the contention of the respondent that the work o construction was done by only foreign and private contractors the position cannot improve, for in the first place, they have not produced any contract to show that the construction work was purely done by the private contractors or foreign contractors. Consequently even if the work was done by the private contractor and the respondent Authority was supervising the construction work in connection with the planning and development of the port, they have admitted themselves that the respondent was doing the construction work. The evidence of Sherwani and Nasar Shaikh has left no doubt that the construction work was done by the Authority of Port Qasim. The Court has referred in this context clause (5) which very clearly provides that industrial establishment means an Industrial establishment of a person who directly or indirectly employs workmen in connection with the construction industry. Even if the Court accepts this view that the work was of planning and development of the project and the respondent had nothing to do with the construction work, this position cannot improve when the work done by the contractors was also of the Port Qasim under the supervision of the Authority who were the employers and had plan of project with their own funds. In view of the matter, therefore, the Court is inclined to take this view that the respondent Port Qasim‑Authority is an industrial establishment the profit is immaterial.

31. The Court has also referred the arguments submitted by the applicant on 24‑3‑1980 before the learned Labour Court where the reference has been made to certain authorities, Muhammad Farooq Siddiqui and Owais Ahmad, in Applications Nos. 182 and 183 of 1979 which was decided on 17‑2‑1980. These decisions have not been produced before the Court but reference has been made that the respondent Authority was held to be an industrial establishment within the definition. This note of argument is on page 71 of the file. Besides this the learned Labour Court repeated also to the same view that respondent Port Qasim Authority is an industrial establishment by virtue of the definition in both Payment of Wages Act and in the Standing Orders Ordinance.

32. Regarding the application of the legal aspect whether Ghulam Nabi was in any way connected with the industrial establishment when he was not doing the clerical works or manual work but purely driving car in the service of the Chairman or Project Engineer as the case may be, which this Court also holds that Mr. Ghulam Nabi has not made previous commitments that he was whole time employee, with the Chairman, but allotted to Project Engineer for the purpose of official duty. If the respondent wants to show that he was employed, for the purpose of duty, other than of private nature for the relationship of master and servant under the ordinary law, respondent has not produced appointment order to show his duty with Chairman or Project Engineer, of the unofficial nature. The burden of proof that applicant was employed not in connection with project with respondent is on the respondent. This is not the case that he was employed in private capacity. His work was of nature to drive the vehicle of Project Engineer. From where he was paid, whether from office of Port Qasim Industrial establishment? or from the private pocket of Engineer. He has said in,, the evidence that he used to carry staff to the project. In view of they factual aspect as well, the Court is convinced with that establishment where if he was not doing the work of clerical nature but was doing the work of skilled nature involving the manual exertion.

33. Finally the question which is very important in this aspect is whether he committed misconduct. Whether his services were rightly termination. Whether he informed the Authority after release from judicial custody? Whether he was permanent or temporary?

34. Regarding the permanent nature of the job, there is no appointment order to show that his post was temporary. Regarding absence this is an admitted position that he was in jail and convicted by the Military Court. The copy of judgment is silent as to the reasons, which prevailed, that the Military Court who convicted him, whether he was innocent of the charge or guilty of the offence.

35. This is also an admitted position that if the respondent has taken this defence that no intimation was sent by him from the jail his absence shall be deemed as a misconduct. In this context no doubt Mr. Ghulam Nabi has not taken the names of Qazi Qaimuddin and Mr. Chandio that through whom the message was sent. At the same time respondent counsel in the additional affidavit has cross‑examined with particular reference to show that the termination order was sent to Qaimuddin on the address which shows that the version of the applicant regarding Qazi Qaimuddin has some substance that Qaimuddin was connected with the applicant and there can be every possibility of the message being communicated. But this Court will not give the definite finding on this finding, as Qaimuddin has not been examined nor the termination letters have been produced before the Court as to what were the reasons which prevailed the authority to terminate his services.

36. Finally the question is of the application of Standing Orders The Court is of the view that if no evidence has come forth that 29 persons were not employed in the establishment to attract the application of Standing Orders Ordinance, the necessary inference is that it was the industrial establishment comprising more than 20 persons for the application of the Labour Law in particular when no statutory rules of the discipline had the approval of the Government as admitted by them at that relevant time.

37. But what is important for the purpose of the case, the Court is to first examine, whether the termination order has been produced to see the statement of reasons as required in section 12, subsection (3) of I. R.O. There is a particular procedure in the case of termination of the permanent workman or temporary workman, or purely temporary. The entire section 12 if examined speaks of the word 'workman'. But subsection (4) even has gone further to refer the services of any "workman", if terminated, the wages earned by him shall be paid before the expiry of the second working day. Consequently, the statement of reason is the mandatory requirement even in the case of worker whose E services are purely temporary, for the Court to have an idea what reasons prevailed with the employer, to terminate his services.

38. In this case there are 2 versions; according to respondent termination order was sent on the address of Qaimuddin. At the same time the trend of cross‑examination is that no name of Qaimuddin was disclosed whether absence was intimated, the Court reaches this definite F finding that termination order has not been issued otherwise the termination order would have been produced before the Court even at the last stage. Therefore, neither the requirement of the law are complied with nor the rules of natural justice are observed when applicant admittedly has put a longer period of his service.

39. With this defect, therefore, in the termination of the applicant from the employment when termination order is not produced, the L termination in the manner it has been affected without following proper, procedure of enquiry is illegal. Section 12 will also further show that even in the case of temporary worker where there is a question misconduct the proper procedure is to be followed.

40. In the result, therefore, the impugned order of discharging or terminating the services of the applicant, as stated by respondent is absolutely illegal. It is also significant to mention here that Court is facing difficulty regarding the actual date of termination, for there Is" no termination order, and applicant states that he reported for duty immediately after release, what should be the date of his discharge. Applicant on the other hand explained that he was sentenced to one year on 2‑5‑1978. If one year passed and after the release, he reported for duty, the position still is not certain, when he was discharged but the order of my learned predecessor on page 73 shows that he has been released on 4‑8‑1979 so the date of his discharge for the purpose of back benefits shall be the important question if the applicant has stated that he has applied for leave and no communication was received through Jail Authorities 'despite the fact that he intimated through Qaimuddin then that date should be the date for the purpose of computation of the back benefits due to illegal discharge unless the respondent satisfied the applicant that his discharge or termination was, on that or some other particular date. Regarding back benefits, the; Court is of the view that no doubt if the termination is illegal, the applicant be entitled to all the back benefits. But at the same time if the applicant has not physically worked in the establishment and his own evidence involved in case he is entitled only to those back benefits of 25%. In the opinion of the Court this will be the proper compensation.

41. This Court also further points out that if the contention of the respondent be that his conviction was involving the moral terpitude it I is for the respondent to proceed according to law of enquiry applicable to the workman with due regard to the fact that conviction must be referred by looking into judgment, whether the offence was of the nature, involving the moral terpitude and what was the evidence. Presently the termination or discharge whatever is called by them and K no orders produced before the Court of termination from the employment by the respondent, the impugned termination or discharge is absolutely 1 illegal and redressable wrong. Application is allowed. M.Y.H./848/L Petition allowed.