SIRAJ KHAN Versus SUI GAS TRANSMISSION Co. LTD., KARACHI
ORDER
1. This application has been made by Siraj Khan son of Fazal Khan under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, against the Manager, Sui Gas Transmission Company Limited, Karachi. It has been stated that he was employed as a permanent Construction Jamadar for about 5 months on Rs. 650 per month. It has been alleged by Siraj Khan that besides his weekly leave, sick leave, casual leave, bonus and overtime at the double rate, he was not allowed Rs. 35 Cost of Living Allowance and Rs. 50 Dearness Allowance. He has farther alleged that his wages for July, August and 11 days of September 1974, have also not been paid to him. It has been alleged by the applicant that on 12-9-1974, when he reported for duty alongwith other hundred fellow workmen, he was not allowed to join duty without any notice or charge-sheet. The applicant has also alleged that the Management had cut the supply of water at the site with the result that some of them have fallen ill and have been admitted in the hospital. The applicant has prayed for re-instatement with full back benefits.
2. The respondent in their reply statement have stated that the complaint was not maintainable as the applicant was not an employee of the respondent and as such the relationship of master and servant did not exist between the applicant and respondent. It has, further, been pointed out by the respondent that the applicant might have been employed by Messrs M. Musharraf Ali. Contractor, Super Market, Clifton Road, Karachi, who had entered into a contract dated 18-4-1974 with the respondent-Company for ditching and excavation of trenches for laying Gas Pipelines between Karachi and Sari/Hundi. It has been stated by the respondents that this work was given to the said Contractor according to the General Conditions laid down in the Annexure to the said contract and according to the rates and measurements of excavation as laid down in the schedule of rates appended with the said contract. It has been pointed out by the respondent that they did not employ any labour force directly or through the said contractor and that the contractor used to submit his bills according to the measurement of the ditching work carried out by him and the Company used to make payment of the bills to the contractor. According to the respondent a total amount of Rs. 1,06,017.45 was paid to the contractor for the said contract against the bills submitted by him during the contract period. The respondents were not concerned as to how much labour Mr. Musharraf Ali had employed and how much wages etc., were paid to the labour engaged by him. The respondents have submitted a copy of the contract dated 18-4-1974.
3. It has further been pointed out by the respondent that on 31-8-1974 the contractor Mr. Musharraf Ali, informed the respondent by his letter of the said date that he was not in a position to pull on with the job of ditching work after 8-9-1974 and requested to clear his bills up to the said notice period. The said contract was, therefore, treated as terminated. In view of the facts mentioned by the respondent, it has been submitted that the complaint is not maintainable as the applicant had never been their employee or workman and that the respondent had made up-to-date payment of all the bills to the contractor as agreed to under the said contract. It has also been pointed out by the respondent that they have not violated any of the provisions of sections 5 and 6 or any other provisions of the Essential Services (Maintenance) Act, 1952, and that the prayer of the applicant does not attract the provisions of the said law. It has also been pointed out that Mr. Musharraf Ali was the Headman of the respondent and that the applicant was not in the employment of the respondent and as such the question of refusing employment to the employee does not arise. The respondents have pointed out that they had terminated the contract on the request made by Mr. Musharraf Ali, himself which action was bona fide. It has, therefore, been prayed by the respondent that the complaint is incompetent and is not maintainable against the respondent.
4. Mr. Muhammad Ikramuddin, Acting Personnel Officer of the Company deposed that when a person is employed by the Company, he is required to fill in employment form and that after he is appointed he is issued identity card by the Company besides engagement letter. According to him, Siraj Khan and other workers were never engaged by the Company and that they might have been employed by the contractor. He, further, p anted out that a petition submitted by Siraj Khan, to the Company was duly replied to by the respondent. That letter was, however, received back by the Company undelivered with the remarks "There is no person of this name at the address". Mr. Ikramuddin stated that he wa3 not expected to be present at the site all the 24 hours and that he was formerly working at the Head Office, but was transfered to the Karachi terminal. He stated that he could identify all the 95 persons who claim to be employees of the Company. According to Mr. Ikramuddin, work was given on contract to others also besides Mr. Musharraf Ali, and that no employee of the con tractor was issued emf loyment card.
5. Mr. Bashiruddin Ahmad, Construction Manager, Sui Gas Transmission Company, stated that the Company had given contract for excavation work to Mr. Musharraf Ali, and that he identifies his signatures on the contract deed signed between the Company and Mr. Musharraf Ali. He confirmed that Mr. Musharraf Ali, had given a notice to the Company that he was not in a position to carry out the work at the existing rates. Mr. Musharraf .A1i, had agreed on 25-10-1974 for final settlement of his bills.
6. Mr. Nafees Ahmed Khan Sherwani, O. S. D., Sui Gas Transmission Company, stated that on 13-9-1974 he had learned that the labourers belonging to Mr. Musharraf Ali, Contractor had "gheroad" the Construction Camp and that he visited the site and came to know that the workers bad not been paid their wages by the contractor. According to him a sum of Rs. 50,000 was paid to Mr. Musharraf Ali, contractor with the directions that he should immediately disburse wages to the labourers, which he paid to the workers on the next day. The witness produced cash bills in proof of payment having been made to the contractor Mr. Musharraf Ali. Mr. Sherwani, admitted that some of the signatories of the document (Exh. P. 1) are the employees of the Company. He stated that these employees had signed the documents to convince the labourers that the payment would be made immediately and thereafter, Mr. Musharraf Ali, disbursed the amount to them.
7. The respondents have raised the following preliminary points in this case:
(i) The applicant cannot resort to section 6 of the Essential Services (Maintenance) Act, 1952.
(ii) The applicant were not employed by the Company and there was no privity between the applicants and the Company.
8. As regards (i) above, the Notification under which these organizations have been covered under the Essential Services (Maintenance) Act, provides for "all employment in or in connection with the Oil Refineries and in or', in connection with organisations, dealing with production, purification, transmission, distribution or marketing of Oil or Natural Gas". The Contractor had employed labour in connection with the transmission and distribution of natural gas and the workers so employed were, therefore, covered under the said Notification. This being the position the Commission B is competent to regulate the terms and conditions of employment and wages of the workman employed by the contractor.
9. As regards (ii) the Essential Services (Maintenance) Act, does not define the "employer" or "workmen" and as such reliance has to be placed on the definitions given in other labour laws.
10. In this connection clause (viii) of section 2 of the I.R.O. may be referred to which defines "employer" in relations to an establishment as any person or body of persons whether incorporated or not, who or which employs workmen in the establishment under a contract of employment. Under Clause (xxviii) of section 2 of the I.R.O. a "workman" has been defined to mean any person not falling within the definition of employer who is employed including employment as a supervisor or any apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied. It, therefore, implies that the employer in this case shall be the contractor who bad entered into a contract with the company, as under the contract signed between the company and the contractor the latter was responsible for engaging and making payment to the labour for the execution of the contract.
11. The argument of the legal representative of the applicant relating to the application of the Essential Services (Maintenance) Act, has already been dealt with above and is acceptable. It is, however, not understood as to how the execution of work and the employment of workmen for the execution of that work can be treated separately. The workers were naturally employed for execution of the work and they were employed by the contractor and as such the employer in that case fn view of the defi nition as given above becomes the contractor and not the Company.
12. The respondent's plea has been that there was no privity between the applicants and the company and the applicants have not rebutted this point. The provisions made in the I.R.O. in so far as definition of employer and workman are concerned go against the applicants and similar is the case with the special provisions made in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
13. I may say that because of the peculiar nature of work in the construction industry there have been complaints against the contractors who usually engaged workmen and subsequently made the principal responsible for payment of their wages and other benefits. Under the amended Act of 1973 a new clause (bb) was added below section 2 of the Standing Orders Ordinance, as under-
14. "(bb).-'Construction, industry' means an industry, engaged in the cons truction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway road, tunnel, bridge, dam viaduct, sewer, drain, water work, well, telegraphic or telephonic installations, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundations of any such work or structure."
15. Similarly sub-clause (c) defined the employer in any other industrial or commercial establishment, as any person responsible to the owner for the supervision and control of such establishment and establishment of a person who directly or indirectly employed workman in connection with any construction industry was covered under the definition of "industrial establishment".
16. In order to give protection to the workmen employed in the construction industry special provision was made under Standing Orders as under
17. "14-A. Special provision for construction workers.-
18. Provided that where a workman is re-employed within one month of his retrenchment or discharge, he shall be deemed to have been in continuous service of the contractor or employer notwithstanding the interruption caused by his retrenchment or discharge but no wages shall be paid to him for the period of interruption."
19. In view of the position stated above, I am of the view that the appli cant is not an employee of respondent No. 2 i.e., Sui Gas Transmission Company Limited. In this connection the respondent has ailed a copy of an agreement between the contractor and respondent No. 2. That being the position the applicant is not entitled to seek any relief from respondent No. 2.
20. I have also noted that the documents attached with the comments show that prior to making this application the contract between contractor and respondent No. 2 had terminated in September 1974 while this application has been made in November 1974.
21. The Chairman of the Commission by virtue of its powers regarding regulation of conditions of services is empowered to take up the cases of re-instatement of employed persons under the Essential Services (Maintenance) Act. Since the contractor's establishment is no more an Essential Service the question of regulating wages of the persons employed- with tie contractor after termination of the contract does not arise and as the case does not fall within the jurisdiction of the Commission. I, therefore, dismiss the application.
22. Since common questions of law and facts are involved in the following applications, this decision will apply to those applications as well. Briefly stated the present order governs all these applications which are accordingly disposed of
(1) Applications registered under Nos. 18 (132)/74 to 18 (212)/74.
(2) Applications registered under Nos. 12 (214)/74 to 18 (227)/74.