2017 P L C 148
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ
GENERAL MANAGER PAKISTAN INTERNATIONAL AIRLINE and another
Versus
MATIULLAH and 17 others
Constitutional Petition No.577 of 2012, decided on 29th December, 2016.
Balochistan Industrial Relations Act (XIII of 2010) ---
----S. 25 ---Grievance petition ---Employees of Pakistan International Airlines Corporation---
Regularization of service ---Employees employed through contractor ---Employees filed
grievance petition for regularization of their service which was dismissed by the Labour
Court but Labour Appellate Tribunal accepted the same ---Contention of employer
Corporation was that employees were employees of the contractor and they did not fall within
the definition of 'worker' or `workman'--- Validity ---Employees appointed by the employer
directly or indirectly were permanent employees of the employer after fulfillment of three months probationary period---Present employees were appointed by the contractor for discharging duties to provide the janitorial service to the employer Corporation---Mere
change of contractor did not affect the services of employees ---Petitioners were employees of
the employer Corporation and not of the contractor ---Agreement with th e contractor had been
extended from time to time during the employment of employees but they remained at the job in the Corporation---Corporation had administrative control over the employees with powers of hiring and firing---Employees were also on the pa yroll of Corporation and working in its
territorial jurisdiction ---Corporation had hired the services of employees just to save them
from the obligation and responsibilities under the Labour Laws ---"Workman" was not merely
a person employed directly by the employer but employed through contractor was also
employee of the employer ---No illegality or irregularity had been pointed out in the
impugned judgment passed by the Labour Appellate Tribunal ---Constitutional petition was
dismissed in circumstances.
Mian Badr Munir for Petitioners.
Azam Jan Zarkoon for Respondents.
Naseer Ahmed Bangulzai, Addl. A.G. for Official Respondents.
Date of hearing: 19th December, 2016.
JUDGMENT
ABDULLAH BALOCH, J. In this Constitutional Petition, the Petitioners have
sought the following relief:
"It is, therefore, respectfully submitted that this Hon'ble Court may kindly be pleased
to set aside the order dated 24.03.2012 passed by Labour Appellate Tribunal Balochistan, Quetta, in the interest of justice, fairplay and equity ."
2. Facts of the case are that the respondents Nos.1 to 17 (hereinafter referred as,
"Respondents") filed petition under Section 25 (8G) of Balochistan Industrial Relations Act, 2010 (hereinafter referred as, "BIRA, 2010"), before the first Labour Court Quetta, (hereinafter referred as, "Trial Court"), claiming that they are permanent employees of the petitioners having put in more than two to twenty years services having been issued appointment letters and cards and the Petitioners regularized the services of two employees of the same category at Quetta and also at Zhob, Pasni and Turbat Airport and other provinces. The respondents Nos.1 to 17 approached the petitioner but with no result, as such, they served grievance notice which was also not replied. S ince the petitioners failed to regularize
the services of respondents, they filed petition before the learned trial Court which after
hearing the parties, dismissed the Petition vide Judgment dated 17th August, 2011.
Thereafter, respondents filed Appeal under Section 54(2) of BIRA, 2010 before the Learned
Labour Appellate Tribunal Balochistan (hereinafter referred as, "The Appellate Court"), who vide judgment dated 24th March, 2012 allowed the Appeal, set -aside the judgment dated 17th
August 2011 passed by the learned trial Court and directed the petitioners to regularize the services of respondents Nos. 1 to 17 after the completion of three months probationary period without back benefits.
Feeling aggrieved with the above mentioned judgment, the petitioner s have filed the
present petition along with an application under Section 5 of Limitation Act for condonation of delay.
3. The respondents contested the petition by filling counter affidavit, whereby raised
certain legal objections regarding maintainability of the Petition and contested the factual position.
4. Learned counsel for the petitioners contended that the respondents have not been
appointed by the petitioners by means of any appointment letters; that there is no relation of master and servant exis ting between the petitioners and the respondents; that the respondents
are direct employees of Contractor; that the respondents do not fall within the definition of
"worker" or "workman"; that the Labour Court had rightly dismissed the petition of the
respondents; that the Appellate Court erroneously accepted the appeal of the respondents; that
the judgment so passed by the learned Appellate Court suffers from illegalities and
irregularities, as such, the impugned judgment is liable to be set aside.
5. Conversely, Learned counsel for the respondents vehemently opposed the arguments
so advanced by the learned counsel for the petitioners and contended that under the provision of Labour Law's employees who were appointed by the Contractor on behalf of the compa ny
would be the employees of the company; that the respondents are discharging their duties with the petitioners for the last two to twenty years; that the employees are being paid by the petitioners; that the respondents deserve to be regularized in their services since they are
working against the permanent posts; that learned Appellate Court had rightly exercised its jurisdiction and passed direction to the petitioners to regularize the services of the respondents.
6. We have heard the respective content ions of the learned counsel for the parties and
carefully gone through the record. Sole question to be decided is, whether respondents are
employees of the petitioner (as claimed by them) or of Contractor (as allegedly by the petitioners)? To determine the real status of a worker, as to he/ she is employee of
establishment/ Industry/ Company ("Company") or a Contractor, Superior Courts, in a number of cases, have introduced the following criteria/test: ---
(i) Whether the company has administrative control over the worker?
(ii) Whether the company based for the work done by the worker?
(iii) Whether the company has the power to reinstate and dismiss the worker?
(iv) Is the work required to be performed by workman of a permanent nature and is
it related to process of manufacturing before the finished goods were sent into market?
(v) Whether payment for the worker's services was made by the company?
(vi) Whether the goods, that the worker helped to manufacture, when marketed,
brought proceeds to the company i tself?
(vi) (sic) The duration the worker had been performing his duties and providing labour in connection with the manufacturing process?
(vii) Whether the contractor is a genuine person and has not been set up merely to
deny the worker of the benefits u nder the labour laws?
7. To answer the aforesaid question it would be appropriate to dilate upon the provision
of Labour laws i.e. BIRA, 2010, wherein the definition of worker and workman is defined as under: -
(dd) "worker and "workman" mean person not fal ling within the definition of
employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms or employment express or implied, and, for the
purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid- off or otherwise
removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay -off, or removal has led to that dispute
but does not include any person who is employed mainly an managerial or administrative capacity."
8. The same definition has been given in I.R.O and Standing Order Ordinance, 1968. On
Perusal of the above definition it has become quite clear that the employees appointed by the company directly or indirectly by the Contractor are permanent employees of the company after fulfillment of three months probationary period.
9. Definition of permanent employee has been defined in the West Pakistan Industrial
and Commercial Employment (Standing Orders) Ordinance, 1968, as under;
"A "Permanent workman" is a workman who has been engaged on work of permanent
nature likely to las t more than nine months and has satisfactorily completed a
probationary period of three months in the same or another occupation in the
industrial or commercial establishment, including breaks due to sickness, accident, leave, lock -out, strike ( not being an illegal lock -out or strike) or involuntary closure
of the establishment 2(and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty -three days during any period of
twelve consecutive months}."
10. It is also admitted feature of the case that the petitioners have admitted that the
employees were appointed by the Contractor for discharging of their duties to provide the janitorial service to the petitioners. Record further reveals that the agreement wa s signed by
the Contractor for a period of one year and thereafter on expiry of the said contract the employees i.e. respondents still remained on their duties with the Petitioners and mere change of the Contractor did not affect their services.
11. A careful perusal of the above mentioned position shows and suggests that the
respondents were employees of the petitioners and not of the Contractor. The record further indicates that the respondents being employees of the petitioners had no concern with the Contractor. It emerged from the record that during the employment of the respondents,
agreements with the Contractor was extended from time to time, but the respondents remained at their jobs in the Petitioner's company, identity cards and entry cards have b een
issued to the respondents by the petitioners meaning thereby that they are employees of the petitioners. The petitioners also appeared to have administrative control over the respondents with power of hiring and firing. The respondents were also on the payroll of the petitioners
and working in their territorial jurisdiction thus, it can be concluded that the petitioners had hired the services of respondents just to save them from the obligation and responsibilities
under the Labour law.
12. All the above circumstances, individually as well as collectively, leads to one
conclusion that the respondents are employees of the petitioners. Under the provision of BIRA, 2010 and West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968 workman is not merely a person employed directly by the employer, but
employed through Contractor is also employee of the company, therefore, finding of the Appellate Court declaring the respondents as the employees of the petitioners do not suffer from an y illegality or irregularity, as such, does not warrant for interference by this Court.
Additionally, the Petitioners have failed to satisfy the Court on the point of limitation.
For the foregoing reasons the petition being devoid of merit is dismissed.
ZC/13/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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