MANAWAR Versus MESSRS FAROOQ COMPOST FERTILIZER CORPORATION LTD.
ORDER
This order will dispose of the above‑mentioned applications as the same have been consolidated on the request and by consent of both the parties and their counsels, common evidence has been produced in all the applications, common arguments have been filed, all the cases are based on the common points of facts and law.
2. Briefly stated the case of each applicant is that he is a permanent workman in the respondent establishment serving as a Sweeper. The applicant is member of Farooq Compost Fertilizer Corporation Employees Union which is a registered Trade Union in the said establishment. It is said that each workman is entitled to an amount of enhanced wages at the rate of 18% of his total wages as provided in the Employees Cost of Living (Relief) Act, 1973 w.e.f. 1‑7‑1986 and allowance of Rs.50 per month from the same date in view of Sind Employees Special Allowance (Payment) Ordinance, 1986. The above‑mentioned wages were demanded by the applicants from the respondents who have willfully and intentionally deprived the applicants/ workers from their due rights secured to them under the law and rules and the respondents have failed to make them the said payments, hence the above applications have been filed.
3. The respondents have contested each case and filed the reply statement pleading that each applicant is not a permanent workman as he has been employed on purely temporary basis. It has been pleaded that the job of each applicant is purely of temporary nature based on contractual terms, the life of which is not more than one year; hence he is not entitled to the enhanced wages in the light of the above‑mentioned two Ordinances.
4. On the other hand, the respondents have relied upon the terms and conditions of a contract entrusted to them by the Karachi Development Authority, according to which each applicant shall have to perform and carry out the job of a sweeper with the respondents on contract basis. According to the term and condition No.30 of the respondents agreement with the K.D.A., the respondents are obliged to keep a certain number of sweepers on roll for performance of a job assigned to him and he is accordingly paid as per the number of employees. In brief, the respondent's plea is that they are bound by the terms and conditions of the said agreement with the K.D.A. and, therefore, during the contractual period, the demands made by the applicants cannot be entertained because the respondent's authority is controlled and restricted by the agreement referred to above.
5. In support of their evidence, the applicants merely relied upon the provisions of the above‑mentioned two Ordinances which are binding on the respondents to increase the wages of their Cost of Living as well as Special Allowance. Only one applicant Manawar has filed his affidavit deposing that the applicants are entitled to the said wages. On the other hand, the respondents have filed an affidavit of their Executive Manager Qaiser Ali Abbasi.
6. In view of the above pleadings, there is an admitted position that the applicants have not been paid any amount as provided by Employees Cost of Living (Relief) Act, 1973 and in terms of Sind Employees Special Allowance (Payment) Ordinance, 1986. There can be only two issues now such as: ‑
(i) ???????? Whether each applicant is entitled to the amount of enhanced wages at the rate of 18% as mentioned in the Employees Cost of Living (Relief) Act, 1973 and a sum of Rs.50 per month as provided by Sind Employees Special Allowance (Payment) Ordinance, 1986?
(ii) ??????? Whether the applicant is a permanent workman in the respondent's establishment?
ISSUE N0.1
In order to reach at the proper conclusion, it is necessary to reproduce the definition of the term "Employee" as envisaged under subsection (b) of section 2 of the Employees Cost of Living (Relief) Act, 1973 which reads as under:‑
"Employee" means any person employed whether directly or through any other person, for wages, to do any skilled or unskilled, intellectual, technical, clerical, manual or other work in, or in connection with the affairs of, an undertaking, under any contract of service or apprenticeship, whether written or oral, express or implied and includes such as person when laid off, but does not include a person for whom a provision has been or may be made by the Federal Government for grant of an allowance intended to provide relief due to a rise in the cost of living."
Section (7) of section 3 of Employees Cost of Living (Relief), Act, 1973 provides as under: ---
"(7) In addition to the cost of living allowance admissible under subsection (1), (2), (3), (4), (5) or, as the case may be, subsection (6), if any, every employee whose wages do not exceed one thousand five hundred rupees shall, in respect of his 'employment on or after the first day of July, 1986, whether on time‑work or piece‑work basis, be paid by his employer an increase in wages at the rate of 18 per cent of his wages."
8. It is also an admitted position that every employee whose wages do not exceed 1,000 rupees shall be paid by his employer as special allowance to the following effect:‑
"(a) ?????? equal to fifty rupees per month, if his wages do not exceed one thousand rupees, or;
(b) ??????? at such rate as, together with his wages, makes a total of one thousand rupees per month, of his wages are more than nine hundred fifty rupees."
9. The respondents have challenged the period of employment of each worker as claimed by him in the main application. The onus whether each applicant has remained in service of the respondents establishment on contractual basis lies with the respondents and they have failed to disprove the same fact.
10. In view of the above discussions, law and the submissions made by both the parties, I am of the considered view that each of 'the above‑named applicant is a permanent workman in the respondent A establishment and he is entitled to the two claims as mentioned in the main application which is‑his guaranteed and secured right given to him by the law of the land and the respondent should not have opposed to pay them the same amounts.
11. The, result is that both the issues are answered in affirmative and the applicants are entitled to get the wages and allowances as B provided in the above‑named enactments, and thereby I direct the respondents to make payment of the following amounts to the, applicants w.e.f. 1st July, 1986 in accordance with law:‑
(i) ???????? Enhanced wages at the rate of 18$ as provided by the Employees Cost of Living (Relief) Act, 1973, and
(ii) ??????? Rs.50 per month as provided by the Sind Employees Special Allowance (Payment) Ordinance, 1986.
The above directions may be carried out within two months from the expiry of appeal period.
A.E. /1039/Lb. S ?????????
Applications allowed.