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Petitioner: Mst. MANSOORA TABBASUM VS Respondent: ARIF KHAN ABBASI and others
Court Name: National Industrial Relations Commission Judge(s): Nabi Bakhsh Bhatti Title: Mst. MANSOORA TABBASUM vs ARIF KHAN ABBASI and others Case No.: Case No,7(543) of 1998-L, Date of Judgment:1999-07-19 Reported As: 2000 PLC 510 Result: Order accordingly
Judgment ORDER ' Complainant Mst. Mansoora Tabbasum filed a petition under section 22.A(8)(g) of the I.R.O., 1969 alongwith an application under Regulation 32 NIRC (P&F) Regulations, 1973 for ad interim relief before this bench on 28-11-1998 based upon the alleged acts of unfair labour practice on the part of the respondents, wherein the complainant asserted that she was appointed as Reservation and Ticketing Assistant in the establishment of the respondents in June, 1997 but despite lapse of 1-1/2 years she was not provided the appointed order in writing by the respondents and as when she demanded the same and claimed for the regularization of her employment at par with other regularized workers she was restrained from claiming the same with threatening of termination from employment. She further submitted that on completion of her probationary period she joined the People's Unity of PIA Employees, an industry wise trade union and started taking part in lawful trade unions activities which was highly disliked by the respondents and also by the rival union C.B.A. And in such a circumstances the complainant was time to time threatened by the respondents to discontinue her relation from the union otherwise be ready to face the worst consequences in respect of her employment and when in the month of August, 1998 the complainant submitted per request to the respondents for the provision of appointment order and due emoluments at par with other regular workers similarly placed, the respondents denied the same by rendering her employment of some contractor rather than the establishment of the respondents' and when she attended the meeting of the active workers of her union on 29-10-1998, the respondents bent upon worst enmity against her' and by using intimidation, coercion and pressure, started the acts of unfair labour practice against her with clear and open threatening that in case she continue her trade union activities any more, the respondents would soon oust her
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from employment. As such the petitioner filed the aforesaid petition against the alleged acts of discrimination and threatening of victimization in the hands of the respondents with the prayer for the, provisions of the right of regularization of her employment with all due emoluments at par with other regularized workers similarly placed and working as such, and pending final disposal of the main case she prayed for ad interim relief restraining the respondents from the commission of further acts of unfair labour practice against her. 2. That since uptil 30-11-1998 the complainant/petitioner was neither served with any order detrimental to her employment and uptil the said date she was on the role of the establishment of the respondents and was marking her attendance. As such for restraining the respondents from the commission of further acts of unfair labour practice in exercising the power conferred upon this bench under regulations 32 NIRC (NIRC) (P&F) Regulations, 1973 as well as in the light of the law laid down by the Division Bench of Honourable Lahore High Court vide judgment placed in PLD 1986 Lah. 90 this bench ordered the respondents that the position prevailing as on 30-11-1998 shall not be disturbed. The complainant on the same day, during working hours got received the orders of this bench accordingly in the office of the respondents but on the next day on 1-12-1998 she was restrained by the officers of the respondent from marking her attendance, verbally rendering her employment to dispensed with by the respondents. Against the said act of the respondents the complainant immediately on 2-12-1998 moved a complaint under section 22-C of the I.R.O, 1969 against the respondents alleging and contending the acts of the Respondents in restraining from attending her duties to be an act of the contempt of the orders of this bench dated 3-11-1998. 3. Before proceedings further to ascertaining the factual position, this bench felt it appropriate to call for the comments of the respondents and fixed the same for 5-12-1998 and on the said date the respondents No,2 appeared alongwith the learned counsel Mr. Javaid Altaf who requested for adjournment for the submission of reply on the complaint, which was allowed in the interest of justice and on 10-12-1998 the learned counsel for the respondents filed a written reply of the complaint wherein the respondents at the very outset denied their relationship of employer and employee with the petitioner/complainant and maintained the complainant to be an employee of some contractor who terminated her services w,e,f, 12-11-1998 stating that "She wrongly marked her attendance uptil 30-11-1998 in the attendance Register of the Respondents". Contrary to this, in the presence of the learned counsel for the respondents, the complainant Mst. Mansoora Tabbasum got recorded her preliminary statement on oath before this bench stating that she applied for her appointment as Reservation and Ticketing Assistant to the respondent No,1 in June 1997 and after 2 or 3 days she was called for duties through telephonic message by the office of the respondent and was allowed to mark attendance and perform duties with monthly wages but less than the regularized employees. On completion of 3 months continue service, as and when, the petitioner requested for the provision of appointment letter and other emoluments at par with other regularized workers similarly placed and working she was highly discouraged by the Respondents from claiming the same and when she joined the People's Unity of PIAC and started participation in the trade union activities and attended meetings of the union in October 1998 the Respondents started the acts of intimidation, coercion, pressure, she was made the victim of the acts of unfair labour practice by way of threatening the termination of her employment in case she continue her trade union activities any more and in November 1998 the Respondents bent upon worst enmity against her by way of restraining her from trade union activities and when she obtained the order dated 30-11-1998 from this bench she was on duty and on that day after marking her attendence as usual, she attended the proceedings of this bench on the same day she got received the order of this bench in the office of the Respondents and when she came for attending her office on 1-12- 1998 she was restrained from marking her attendance by the officers of the respondents referring the verbal orders of the respondents with undesirable and insulting attitude and behavior with the
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complainant in respect of the orders of this bench dated 30-11-1998 but the learned counsel for the respondents forcefully contended that the petitioner never remained employee of the establishment of the respondents and she was the employee of the contractor. At this stage, when this bench inquired about the name of the alleged contractor from the learned counsel of the respondents, he showed his inability regarding the name of the contractor stating that he wanted to adduce the alleged contractor before this bench. As such the respondents were allowed the same for 18-12-1998 and on the said date the learned counsel for the respondents appeared alongwith a person namely Syed Athar Abbas stating himself to be the contractor of the establishment of the respondents and placed on record of this bench a Pay Roll sheet of some workers including the name of the complainant for the month of October 1997 to October 1998 as well as photo copy of agreement dated 28-10-1997 signed between the respondents and the said contractor and the case was adjourned for 26-12-1998 to examine the aforesaid contractor and to ascertain the factual controversy whether the complainant is the employee of the establishment of the respondents or that of the aforesaid contractor as alleged and contended by the respondents in their written statement of the complaint so as to enable this bench to proceed further. 4. On 26-12-1998, the aforesaid contractor did not turn uptil the close of court hours. The learned counsel for the respondents assured to make the attendance of the asserted contractor on 29-12- 1998 positively which was allowed in the interest of juice. On 29-12-1998, in the light of the photocopies of the Pay Roll and the agreement dated 28-10-1997 already submitted by the said contractor, this bench got examined him on Oath and recorded his assertion at length. The asserted contractor Mr. Athar Abbas during the examination assured this bench to produce the application of the petitioner/complainant for appointment and also to produce the personal record/file of the petitioner/complainant on the next date of hearing and also the attendance register alongwith order of termination passed by him as per his assertion during examination, but this bench regret to observe that the aforesaid contractor on the next date of hearings did not turn up and on 22-1-1999, the aforesaid contractor appeared before this bench alongwith counsel for the respondents but failed to produce any application of the petitioner ever she submitted to him for appointment nor did he produced any personal file of the petitioner or any attendance register with the pretext that the same is within the possession of the previous contractor and he would arrange the same short leave within few days. And the said contractor only produced a photocopy of the letter dated 5-11-1998 naming it to be termination letter addressed to Miss Mansoora Tabbasum stating that he got received the same to the brother of the petitioner on 6-11-1998 but at the spot the complainant categorically rebutted the same contending that she has only elder brother residing abroad and a younger one is mentally retarted and the so-called termination letter with the signature of alleged brother is afterthought, fictitious and forged one as she was never got employed by the said contractor nor she got any termination letter from him. Thereafter, several adjournments were allowed to the respondents for the provision of asserted documents relating to personal file and employment of the petitioner by the contractor and the contractor in question was summoned repeatedly for the needful btu of no avail and the respondents as well as contractor in question miserably failed to produce the required documents which they claimed to be produced before this bench, lastly on 2-3-1999, the learned counsel for the respondents submitted written arguments and besides denying the relationship of employer and employee between the complainant and the respondents by rendering her to be the employee of an independent contractor, the learned counsel for the respondents at the same time objected the very maintainability of the case of the petitioner in view of the insertion of section 2-A in Services Tribunal Act of 1973 contended that the employee of PIAC have been declared to be civil servant, it is strange and amazing to observe that the said asserted contractor claimed the termination of the complainant/petitioner on 5-11-1998 while the respondents in their written statement of the
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complaint asserted the termination of the complainant by the so-called contractor w,e,f, 12-11-1998 whereas photo copy of the attendance register produced by the complainant and acknowledged by the respondents substantiate that the complainant/petitioner was continuing on the duty roll of the respondents uptil 30-1-1998. Be that as it may, ultimately this bench heard the arguments of the learned counsel for both the parties in-depth, with my anxious considerations first to determine the sole question as to whether the petitioner/complainants is the employee of the establishment of the respondents as maintained and asserted by the petitioner or whether the petitioner/complainant is the employee of M/s. Al-Abbas Traders, the aforesaid contractor as maintained and asserted by the respondents in the written reply of the complaint and as to whether the objection of the respondents with reference to the provision of services Tribunal. Act is justified and as to whether the provisions of section 22-C of the I.R.O, 1969 attracts in respect of averments made in the complaint in hand. 5. That photocopy of agreement dated 28-10-1997 has been put on record by the learned counsel for the respondent and the asserted contractor pertaining to the year commencing from 17-10- 1997 to 30-6-1998 appointing M/s. Al-Abbas Traders as their contractor by the Respondents, it would be in the fitness of things first to have a deep insight on certain relevant clauses of the said agreement which read as under:--- ' Agreement. (1) Whereas P.I.A. Is desirous to secure the service of the contractor, having appropriate manpower of various categories, for PIA offices situated at Lahore, Faisalabed, Multan, Bahawalpur, Rahim Yar Khan, Sialkot and D.G. Khan. ' Whereas the contractor has agreed to provide the aforesaid services to PIA, to its entire satisfaction and has further assured that it has the capacity and capability to effectively perform the services as it has in its employment the efficient and qualified personnel to do so. Now, therefore, for and in consideration of the covenants and conditions hereinafter set forth, the parties do hereby agreed as follows: (1) This agreement shall come into force w,e,f, 17th October, 1997 and shall expire on 30th June 1998 unless sooner terminated. This agreement may be extended to mutual consent for further term or terms as the parties may from time to time agree. (2) The contractor agrees that he shall provide the services of his staff at the rates approved by the PIA Management, from time to time for various categories of employees. The payment would be made by the Corporation to the contractor on monthly basis. The contractor shall be paid 3% commission on the consolidated salaries paid by him to his staff plus Rs,160 as service charges per person per month. (3) It is clearly understood that the workers employed by the contractor shall be treated as Contractor's employees and that the contractor shall be entirely responsible for their administrative and disciplinary control in every respect. (4) The contractor shall maintain daily attendance register of all his employees and workers, a copy of the attendance statement of all the employees and workers of the contractor shall be submitted to the corporation each day within 1-1/2 hours of the duty timings which will be subjected to verification by PIA officials concerned. In case the attendance of workers fall short of the stipulated number then PIA shall be at liberty to make such Proportionate deductions from the amount of the contractor. (5) The contractor undertakes and agrees that in the performance of contractual obligations under this agreement, he shall fully comply with all the applicable laws, rules and regulations and customs prevailing from time to time in the country, pertaining to payment of wages/allowances, insurance of his employees and their medical attention, grant of annual sick and casual leaves and other rights, facilities and benefits under law/government schemes to which his employees
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may be entitled to and it is hereby expressible agreed and understood by the contractor that all responsibilities are assumed by the contractor and the grant of any such rights, facilities or benefits to the employees at any time whether law/government schemes or otherwise shall not result in any additional cost to PIA other than mentioned in this agreement. (8) (9) (10) (11) (12) (13) (14) The contractor warrants that he is a bona fide independent legal entity working in its own name and account and acknowledged that this contract does not confirm in any manner whatsoever, upon him or any individual employees by him, the status or any employees, officer or agent of PIA. (15) (16) (17) (18) (19) (20) (21) (22) The contractor's employees shall be available during the working hours as notified by the PIA from time .To time. 6. A mere look of the aforesaid contractor agreement indicates that veneer of an independent contractor as provided under law is not at all visible and visionary agreement in question goes to show a mischievous device of the respondents in collusion with the said so-called contractor just to protect and shield the respondents from any demands and claims of any sort from workmen who has been entrusted at the mercy of the contractor in question by the Respondents at the cost of the labour, sweat and blood of the workers in the shape of payment same time amounting to Rs,200 and now amounting to Rs,175 per person per month plus 3% commission on the consolidated salaries of the workers to the contractor in question to whom actually the concerned workers even does not know at all. From the perusal of the above referred agreement it is clear beyond shadow of doubt that the agreement in question even does not at all fulfil the very definition of the word" Contractor" and "Contract" and the so-called agreement is also void under law. It shall be appropriate there to reproduce the extract of judgment in an identical case of Honourable Mr. Justice Karam Elahi Chohan reported in PLD 1976 Lahore 1169 titled as Taj Din and others v. Punjab Labour Court No,3:-- ' Industrial Relations Ordinance (XXIII of 1969) S.2(xxviii)--- "Contract"----Meaning.---A contractor is a person who in the pursuit of an independent business undertakes to do specific jobs of work for other persons without submitting himself to their control in respect to the details of the work. 7. Obviously the aforesaid agreement executed between the so-called contractor and that of the respondents lacks the very purpose and basic requirement of the definition of an independent contractor, there exist no element of any sort of an independent business of the aforesaid contractor with the establishment of the respondent and the aforesaid agreement is also devoid of any substance to prove even the intention of the contractor in question to do some specific jobs or work in the establishment of the respondents. The entire/sole consideration between the so-called contractor and the respondents is that the latter shall secure the service of the former for the engagement/provisions of manpower/labourers of various categories and w,e,f, 17-10-1997/28-10-
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1997 during the agreed period, the former shall provide his services as labour suppliers. The rate of salaries of the workers shall be determined and approved by the PIA management (respondents) from time to time, the payment of which shall be made to the workers through the aforesaid contractor on monthly basis and the contractor shall be paid 3% commission on the consolidated salaries of the said workers plus Rs,160 (now 175 per person per month and such employees shall be available during the working hours notified by the PIAC from time to time for the execution of their duties entrusted to them by the PIAC, but the workers so employed shall be treated as contractor's employees. Working in view the aforesaid consolidations between the respondents and the asserted contractor. I am inclined to believe that the agreement exhibited in the case is void ab initio from the face of it as in the present age the terms and conditions of services of the workers in the country are to be determined and regulated under various enactments of labour laws, particularly under the standing orders (Order 1968) and the Honourable Supreme Court of Pakistan vide Judgment reported in PLD 1980 SC 323 titled as PIA v. Sindh Laboure Court and others has rightly held that "employer cannot contract out of his obligations under (standing Orders) Ordinance (VI of 1968). 8. Even section 23 of Contract Act, 1872 provides that consideration or object of an agreement if would defeat the provisions of law, or involves or employs injury to the persons or property of others, oppose to public policy shall be unlawful and void and section 27 of the said Act provides that every agreement to restrain anyone from exercising lawful profession trade or business of any kind shall be void protanto. From the face of the agreement in question, it is hit by the above said provisions of the act and is unlawful and void. All I would say is that the so-called agreement between the Respondents and their asserted contractor is the worst example of corruption, exploitation, slavery, forced labour and traffic in human beings, in clear violation of the provisions of Article 3 and Article 11 of the constitution of the Islamic Republic of Pakistan, 1973 and also violative of the Article 25 of the constitution which provides the safeguard and security of job to the workers without any discrimination according to their ability and work. Obviously all other employees similarly placed and working in PIAC at par shoulder to shoulder with the asserted contractual workers have been provided with regular pay scales, all allowances and other fringe benefits and all benefits of service promotion etc whereas the respondents has deprived of and worstly discriminated with hundreds of such workers including the petitioner by way of payment of meager salaries to them every month through asserted contractor and the so-called contractor in collussion with some under-hand elements of the establishment of PIAC are building castles upon the grave of the labour, sweat and blood of the said workers by way of misappropriating the public exchequer in lacs and crores since years in the shape of payment of 3% or more commission on the console-dated salaries of the said workers plus 200 and now 175 per person per month to the so-called contractor. Here I am inclined to believe that the role of the so-called contractor is nothing but a cash clerk through which the monthly salaries of the asserted contractual workers are being paid every month by the respondents of the establishment. Patently, the so-called contractor is nothing but a mere smoke screen to deprive the group of workers of their rightful emouluments privileges and benefits which would be available to them under law of the land as are being enjoyed by other workers of the establishment of the respondents. 8-A. During the course of proceedings, the contractor in question could not substantiate through any document that he ever engaged the petitioner/complainant in his employment or terminated her services as maintained and asserted by the respondents in the written reply of the complaint. The pay roll sheet of the workers for the month of October 1997 to October, 1998 adduced by the said contractor in collusion with the respondents also includes the names of Mst. Ismat Mehayuddin, Miss Abida Malik, Miss Shazia Mobin, Miss Nasreen Asghar, Mrs. Amina Tahir, Muhammad Zahid, Mrs. Jargees Abbas, Nisar Bhatti and Ghulam Qamber. Reservation and
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Ticketing Assistant alongwith the name of the complainant and the contractor in question conceded on oath that all were employed and working in the establishment of the respondents prior to the execution of his agreement dated 28-10-1997 but asserted that since he is entrusted the job of payment of salaries every month to the said workers, hence they came in his employment automatically from the previous contractor namely Unique Traders. It is strange and amazing to observe that the petitioner was got employed in the establishment of the respondents in June 1997, the fact of which even conceded by the respondents and also proved through letter dated 24-6-1997 and 25-7-1997 issued by the authorities of the respondents in favour of the petitioner for provision of Uniform to her whereas the asserted agreement between the respondents and the so-called contractor, the Al-Abbas Traders was signed and executed on 28- 10-1997 effective from 17-10-1997 for the supply of labour to the establishment of the respondents and then how the respondents can escape from their liabilities of accepting the petitioner as an employee of their establishment and how the asserted contractor is claiming and blindly insisting upon thrusting his so-called relation of master and servant with the petitioner/complainant and on what ground the respondents are paying to the so-called contractor every month lacs of rupees from the public exchequer in the shape of 3% on the consolidated salaries of hundreds of workers plus Rs,175 per person per month on the name of the workers who have been employed and serving since years much earlier than the execution of the so-called agreement dated 28-10-1997. No doubt, such a malpratice by the respondents employing contractors as suppliers of labour is in fact just…
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