1987 PLP 1463 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑Facts giving rise to this appeal, shorn of all the unnecessary details and sufficient only to decide the question involved in this appeal are that Pakistan Burmah Shell Company Ltd. (respondent No.1) is a public limited company engaged in the business of distribution and marketing of oil and petroleum products. Respondents 2 to 4 are its officers and employees. The respondent company owns a number of petrol pumps and stations in Karachi. Most of the petrol pumps are run and engaged by dealers appointed by the respondent company while some other petrol pumps are run and managed by contractors. One of respondent company's petrol pump, which is adjacent to Pearl Continental, Karachi, is known as 'Saifes Filling Station' and belongs to the second category of petrol pumps and is being run and managed by a contractor.

2. According to the terms of the contract entered into between the respondent company and the contractor, the latter runs the petrol pumps and employs sufficient number of his own pump attendants and personnel to provide the required services. According to the contract, the workers employed by the contractor are to be his emplyees. It is he who determines their terms and conditions of service and has the power to regulate their timings; decide the work to be done by them; take work from them; appoint; discharge; terminate, lay off, retrench, take disciplinary action against or dismiss persons employed by him for the work to be done at the petrol pump.

3. Farid Ahmad, appellant, was employed by the contractor at the respondent‑company's petrol pump at Hotel Inter‑Continental (now Pearl Continental). His services were terminated on 11‑5‑1973 by Mr. Louis Consalves, the then contractor. This was challenged by the appellant in the Labour Court through a Grievance Petition under Section 25‑A of the Industrial Relations Ordinance. The same was, however, dismissed on the ground that there was no privy of contract between him and the Pakistan Burmah Shell (respondent No. l). Against this order, Farid Ahmad filed an appeal which was accepted by the Labour Court and he was ordered to be reinstated. This order was complied with by respondent No.1. But the respondent‑company filed a Writ Petition (No.454/74) challenging the aforementioned order of the Labour Court directing appellant's reinstatement. The writ petition was allowed by the High Court of Sind vide its judgment dated 17‑3‑1975 (reported in P L D 1976 K 200), wherein it was observed, inter alia, that the appellant was not an employee of the respondent company. But in spite of the above judgment the appellant continued to work at the petrol pump. It may be mentioned that the appellant formed a Labour Union of the employees working at the petrol pumps run by the contractors, by the name of Pakistan Burmah Shell Petrol Pumps Employees Union. There were already two labour unions of the employees of the petrol pumps owned by the Pakistan Burmah Shell and run by the dealers. These two unions had a dispute amongst themselves and a referendum was to be held to resolve the dispute. Farid Ahmad appellant also applied for permission for his union to take part in the said referendum, but his request was turned down by the Registrar Trade Unions on the ground that members of his union were not the employees of the respondent‑company. On this the said Union made an application to the N.I.R.C. under section 22‑EE of the Industrial Relations Ordinance, for the amalgamation of the workers of the contractors' petrol pumps with those of the petrol pumps run and managed by the dealers.

4. While the above controversy was still pending, Mr. S.M. Saleh succeeded the previous contractor Mr. Louis Consalves as a contractor of the above mentioned petrol pump. Mr. Saleh, through his letter dated 3‑8‑1978, again terminated the services of the appellant. Thereupon, the appellant instead of serving a Grievance Notice and of filling a Grievance Petition under the Industrial Relations Ordinance, for his reinstatement filed a criminal complaint before the NIRC against respondent No.1 and its 3 officers under Section 53 (1‑A) of the Industrial Relations Ordinance, complaining that the respondent No.1 and its officers had committed "unfair labour practice." The Commission forwarded the said complaint to the Labour Court which issued summons to respondents 1 to

4. The latter thereupon filed a writ petition which was allowed by the learned Single Judge of the Sind High Court vide judgment dated 28‑8‑1975. Feeling aggrieved the appellant filed a HCA which was heard and dismissed by a Division Bench of the Sind High Court vide the impugned judgment, dated 2‑12‑1980.

5. Not being satisfied the appellant then filed a petition for Leave to Appeal before this Court and Leave was granted to him by this Court's order dated 13‑12‑1981, to consider as to whether or not the appellant was an employee of respondent No.1(PBS) and whether it was open to the High Court to have decided this question in exercise of its Constitutional jurisdiction as it involved a question of fact.

6. We have gone through the impugned judgment and heard the learned counsel for the parties at length. Learned counsel for the appellant urged firstly that the High Court in the exercise of its Constitutional Jurisdiction ought not to have decided whether the appellant was an employee of the respondent‑company (PBS) as this was a question of fact which could have been properly determined by the Labour Court seized of the matter.

7. The contention is misconceived inasmuch as this issue did not merely involves a question of fact but a question as to whether or not, in the circumstances alleged by the appellant, his complaint was competent and as such whether the Labour Court had the jurisdiction to hear and decide the criminal complaint filed by the appellant. It was purely a question of jurisdiction of the Labour Court, which went to the root of the matter and the High Court was therefore justified in deciding it in exercise of its power under Article 199 of the Constitution.

8. Learned counsel for the appellant contended that notwithstanding the fact that the appellant had been employed by the contractor it was competent for him to have filed a criminal complaint against the Principal Company, i.e. Pakistan Burmah Shell Ltd. According to him the liability of all acts done by the contractor with regard to the workmen or persons employed at the petrol pumps being run by the contractors rested on the respondent‑company. For this contention the learned counsel relied on the definition of the term "Worker" and "Workman" as contained in S.2 (xxviii) of the Industrial Relations Ordinance (XXIII of 1969). It reads as follows:‑ S.2(xxviii) 'Worker" and "Workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) is an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied".

9. The learned counsel has over‑looked that this question already stands decided by this Court vide its judgment in Mian Munir Ahmad v. The State 1985 S C M R 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 "persons 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 had 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. As observed in D.C. Works Limited v. State of Saurashtra AIR 1957 SC 269), relationship of employer and workman are similar to the relationship between master and servant and that the prima facie test for the determination of relationship between master and servant was the existence of the right in the master to supervise and control the work done by the servant, not only in the matter of directing what the servant is to do but also the manner in which he shall do his work. In the present case Farid Ahmad appellant was employed by the person who had contracted to run a petrol pump of the respondent‑company and not merely to supply labour to be engaged by the company. The contractor, in this case, is not only the person who had employed Farid Ahmad appellant but also the person who had the power of hiring and firing the employees; assigning works to be taken from them and not only directing them what to do but also the manner in which they shall render services to the customers at the petrol pumps.

10. As mentioned above the question of relationship between the owners of factory/company and the persons employed by its contractors, has already been decided by this Court in the case of Mian Munir Ahmad (supra) and it has been held that such persons are not the employees of the factory owner but those of the contractor who has hired them.

11. The net 'result of the above discussion is that the High Court has rightly held thq4t Farid Ahmad appellant was not the employee of the respondent‑company but that of Mr. Saleh, the company's contractor. The appeal is consequently dismissed as having no merit. No order as to costs. S.Q./F‑15/S Appeal dismissed.