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2010 PLC 104

 

[Karachi High Court]

 

Before Shahid Anwar Bajwa, J

 

AL-KARAM TEXTILE MILLS (PVT.) LTD. through Power of Attorney

 

Versus

 

SINDH LABOUR COURT NO.4 and another

 

Constitutional Petition No.S-526 of 2009, decided on 20th November, 2009.

 

Mehmood Abdul Ghani for Petitioner.

 

Nemo for Respondents.

 

Date of hearing: 2nd November, 2009.

 

 

JUDGMENT

 

SHAHID ANWAR BAJWA, J.—The facts giving rise to this petition are that grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 was filed by the present respondent No.2, in the 4the Sindh Labour Court at Karachi. It was stated in the grievance petition that the petitioner before Labour Court (hereinafter referred to as the workman), entered employment of the present petitioner (hereinafter referred to as the employer) on 25-5-1996. It was further stated in the petition that the workman met with an accident on 6-9-1999 and remained under treatment till 14-3-2000. After recovery the workman reported for duty but the employer without any written response kept the workman waiting and forced the workman to visit the factory again and again but did not allow him to join duty or compensate him in any manner in respect of medical treatment consequent upon his accident:. After waiting for considerable time the workman served grievance notice on 24-3-2001 for redressal of his grievance. The grievance notice was not replied to and consequently workman filed grievance petition in the Labour Court. With the grievance petition an application under section 65-B of the Industrial Relations Ordinance, 1969 for condonation of delay was also filed. In the application it was prayed that, for the reason disclosed in the accompanying affidavit, the Court may be pleased to condone delay and the reason stated in the affidavit was that since there was no written order of termination of employment of workman and the workman was kept on waiting and therefore, time consumed and. it may be condoned.

 

2. The employer filed Counter-Affidavit to the application for condonation of delay as well as preliminary legal objections and reply statement. It was pleaded that the grievance petition was barred by time as according to the workman he was declared fit for duty by the doctors on 14-3-2000 and. grievance notice was served by him on 24-3-2001. It was further pleaded that there was no relationship of employee and employer between the workman and the employer. It was further pleaded that the workman was actually an employee of an independent contractor, Messrs Farid. Agreement with the contractor was produced with the reply statement.

 

3. After recording evidence the Labour Court vide its order dated 31-7-2009 ordered that the workman be allowed to resume his duties and pay all his withheld wages and benefits. On the question of limitation the Labour Court observed as under:

 

“Admittedly the petitioner remained admitted in hospital for more than six months. He then was relieved and came and reported for joining duty. It is his case that he was forced to visit the factory again and again but was not allowed to resume duty or paid compensation and no any written notice declaring reasons was given but only verbally was being called for resolution of the grievance and only on 23-1-2001 when he had made complaint to Monitoring Cell when he was prohibited from visiting the factory, therefore, he served the grievance notice. The version of petitioner is supported by Muhammad Sohail Khan Personnel Manager or respondent who in para.(9) of his affidavit stated that the petitioner abandoned his duty w.e.f. 23-1-2001 and it was even retrieved in his cross-examination. Thus it is clear that the petitioner was attending factory up to 23-1-2001 and certainly he would have been doing so on one or other promise and when he was stopped he served grievance notice on next day i.e. 24-1-2001. Hence the cause of grievance stated when petitioner was prohibited from coming to factory and grievance notice served on 24-3-2001. Under section 25-A of repealed I.R.O. the grievance notice could be served within three months from the date of cause of grievance. Hence service of grievance notice was within time. Under section 25-A of repealed I.R.O. 1969 a period of two and half months” after service of grievance notice and 2 months of reply. of grievance notice the petition could be filed before Labour Court and it was filed on 3-5-2001 therefore, is within time hence objection is overruled.”

 

4. When this Constitutional Petition was filed notice was ordered to respondent No.2, the workman on 28-8-2009 and the matter was adjourned to 17-9-2009. On that date the board was discharged. The matter next came up on 15-10-2009. Bailiff had reported that he went to Landhi for serving notice but he could not locate house which the workman in his grievance petition has given address. In this view of the situation, the counsel for the employer requested that let the petitioner be served through publication in daily `Nawa-e-Waqat’. Consequently notice was published in daily `Nawa-e-Waqat’ on 27-10-2009 and no one appeared for the petitioner/workman. Service was held good and the respondent No.2 was ordered to be proceeded ex parte. Consequently ex parte arguments were heard on 2-11-2009 and judgment was reserved.

 

5. Learned counsel for the employer made the following submission:

 

(1) That according to the petitioner himself he was declared fit by doctors on 14-3-2000 and thereafter he served grievance notice on 24-3-2001. Even if version of the petitioner that he was kept on false promises is accepted workman should have at the most waited for 3 months and served grievance notice by 14-6-2000. The grievance notice was therefore hopelessly barred by time. Learned counsel relied upon Tanveer Hussain v. Ravi Ryan Limited through its Managing Director and others 2007 SCMR 737=2007 PLC 246 and contended that it has been held that grievance notice being an act prior to filing of grievance petition and being a matter between employer and employee, the delay if caused cannot be condoned.

 

(2) That the grievance petition was dismissed by the Labour Court on 10-10-2001 for non-prosecution. However on 13-3-2001 it was restored conditionally subject to costs. Learned counsel submitted that the costs had not been paid even till today. He relied upon Ghanshamdas v. Presiding Officer, Sindh Labour Court No.VIII Larkana and another 2004 PLC 366, wherein it was held that if costs are not paid the petition would be liable to be dismissed. However it was a case in which it was pleaded that costs had been paid and the Labour Court came to the conclusion that costs had not been paid and then dismissed grievance petition. Learned counsel also relied upon Ghanshamdas v. Presiding Officer, Sindh Labour Court-VIII, Larkana and another 2005 PLC 317 in which Supreme Court upheld the order of the High Court. Learned counsel’ further relied upon Muhammad Akram Khan v. District and Sessions Judge, Rahim Yar Khan and others 2008 PLC (C.S.) 219, where appeal was dismissed by Service Tribunal because the process fee had not been paid and the Supreme Court had held order of the Service Tribunal as unexceptionable.

 

(3) That before recording evidence the Labour Court should have framed issues. However, the Labour Court recorded evidence and decided the matter and while deciding the matter it framed the issues. He relied upon 2009 SCMR 1256 and 2008 SCMR 1384.

 

(4) No termination order was issued because the workman was not an employee of the employer.

 

(5) That the grievance notice was addressed to the factory manager. Factory manager is merely a designation and title and is not legal person. In this regard learned counsel relied upon Secretary, B. & R. Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625, in which it was held that the suit brought against official designations or titles of defendant officers and not against legal person would not be maintainable. He also relied upon Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 PLC (C.S.) 760, in which it was held that where the petition was filed against designations and titles of officers of the Company who were not legal or natural persons, it would not be maintainable. Both these judgments are distinguishable, the first related to a suit and the second related to a Constitutional petition. The matter out of which this petition has been filed has arisen out of a labour matter, where what has to be seen is definition of employer as given in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

 

6. Learned counsel referred to cross-examination of the workman in which the workman stated that he had been given appointment letter and confirmation letter but had no pay slip or Attendance Card or any Service Book with him. He further referred that the petitioner’s social security card and submitted that the Provincial Employees Social Security Ordinance, 1965 carries a different definition of employee than those under the Standing Orders Ordinance or under the I.R.O. He further pointed out from the cross-examination that the workman had stated that his grievance notice was barred by one year and 10 days. He further admitted that the workman had been given 40% compensation by the Social Security Institution and the Institution is paying Rs.920 per month as pension to the workman.

 

7. Learned counsel also referred to affidavit-in-evidence of witness of the employer where in cross-examination it was admitted that the workman was working in the factory of the employer but was voluntarily stated that he was an employee of the contractor. The learned counsel also referred to the affidavit-in-evidence of the contractor in this regard. Learned counsel replied upon Messrs Al-Hadi Textile (Pvt.) Ltd., v. Habibur Rehman 2001 PLC 635 decision of this Court in Habib-ur-Rehman v. Sindh Labour Appellate Tribunal and others C.P.No.D-2441 of 2001, Abdul Rashid Malik and others v. General Manager, Pakistan Railways and others, 1992 PLC 1116, Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC 52, unreported judgment of Supreme Court in Nasir Jamal and 23 others v. Pak Suzuki Motor Company Ltd., and 3 others C.P.L.A. No.458-K of 1999, Mian Munir Ahmad v. The State 1985 SCMR 257, Farid Ahmad v. Pakistan Burmah Shell Ltd. and others, 1987 SCMR 1463, Seagull Exports (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and others, 2002 PLC 212, Muhammad Sharif and others v. Punjab Labour Court No.3 and another Civil Appeal No.39 of 1977, Aftab Ali and others v. Messrs Woodward Pakistan (Pvt.) Ltd. and others, C.P.S.L.As. Nos.809-K to 815-K of 2005, decided by the Supreme Court on 19-12-2005, Pakistan Tobacco Co. Ltd. v. Punjab Employees’ Social Security Institution, Lahore and another PLD 1978 Lah. 704, Punjab Small Industries Corporation Punjab Labour Appellate Tribunal, Lahore and others 1988 SCMR 1725, Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur PLD 1976 Lah. 1169. Learned counsel referred to cases and material on Labour Laws by K.W. Wedderburn (Cambridge University Press 1967: pages 8 and 9 and the following citations therefrom:–

 

Lord Parker, C.J.— Sometimes it is said quite generally that the test is whether the master can order or require what is to be done, where the true contract is one for services, or whether the master can order or require not only what is to be done, but how it shall be done, in which case it is a contract of service.

 

That perhaps is an over-simplification, and in Short v. Henderson, Lord Thankerton dealt with what he called the four indicia of a contract of service. These are, and he quoted the Lord Justice Clerk: (a) The master’s power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master’s right to control the method of doing the work, and (d) the master’s right of suspension or dismissal. Lord Thankerton went on: `The learned Judge adds that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the ‘principal requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship.”

 

Learned counsel also referred to Casebook on Industrial Law by R.S. Sim, Butterworths 1969: page 4 and the following citations there from:–

 

Denning, L.J.— (This case) raises the troublesome question of the distinction between a contract of service and contract for service. The test usually applied is whether the employer has the right to control the manner of doing the work. Thus in Collins v. Herts county Council (1947), Hilbery, J.L. said:

 

“The distinction between a contract for services and a contract of service can be summarized in this way. In the one case the master can order or require what is to be done, while in the other case he cannot only order or require what is to be done, but how it shall be done.”

 

With reference to Hussainbhai’s, case AIR 1978 SC 1410 learned counsel cited from Industrial Jurisprudence A critical Review by EM (Rao Butterwsorths Wadhwa) Nagpur page 919 and to the following citations:—

 

“Adverting to Hussainbhai, Iyer, J. observed that the presence of intermediate contractors with whom alone the workers had immediate or direct relationship ex contractor was of no consequence; and that on lifting the veil the naked truth could be discerned, though draped in different perfect paper arrangement, that the real employer was the management, not the immediate contractor. What does he mean by the expression lifting the veil”? Whose veil was to be lifted and for what purpose, in the face of a battery of decisions which distinguished `contract for service’ from `contract of service’?”

 

8. On the question of back benefits, the learned counsel relied upon a plethora of case-law to demonstrate that back benefits should not be allowed in every case, where the employee is ordered to be reinstated and submitted that the certain tests and criteria must be judicially determined in this regard. He referred to (1963) (1) L.L.J.692, Harinagar Cane Farm and another v. State of Bihar and others, where it was observed as under:—

 

“The large question as to whether all agriculture and operations connected with it are included within the definition of section 2(f) of the Act was not decided and the decision was based on the facts of the instant case. It was further pointed out that in dealing with industrial matters, industrial adjudication should refrain from enunciating any general principles or adopting any doctrinaire considerations. It is desirable that industrial adjudication should deal with problems as and when they arise and confine its decisions to the points which strictly arise on the pleadings between the parties. If in reaching any conclusion while dealing with the narrow aspect raised by the parties before it, industrial adjudication has to evolve some principle, it should land must, no doubt, attempt to do so but in evolving the principle, care should be taken not to lay down an unduly general or broad proposition which may affect facts and circumstances which are not before industrial adjudication in the particular case with which it is concerned.”

 

9. Learned counsel also referred to Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 PLC (C.S.) 1151, where it was held that if the claim for back benefits is not supported by documentary evidence to the effect that when respondent No.1 was out of service, he did not work anywhere to gain financial benefits, back benefits should not be awarded. Learned counsel also referred to United Bank Ltd. through Hub Branch Manager v. Athar Ali Mangi 2007 PLC 545, to contend that one who claimed back benefits has to show how he was able to meet the ends meet during all period while adjudication was going on. Learned counsel also referred to Rakeshwar Dayal v. Labour Court, Kanpur and others (1962) (1) L.L.J. 5 to contend that servant who sues his employer for wrongful dismissal must show that he made efforts to minimize his loss during the period of his enforced idleness. Learned counsel also referred to State Bank of India v. Ram Chandra Dubey and others AIR 2000 SC 3734, where it has been held that when a question arises as to the adjudication of a claim for back wages all relevant circumstances must be gone into and are to be considered in a judicious manner. Learned counsel also referred to the following observations from U.P. State Brassware Corpn. Ltd., and another v. Udai Narain Pandey AIR 2006 SC 586:—

 

“(17) Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

 

(22) No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Disputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds otherwise an order of determination is found to be in contravention of the provisions of section 6-B of the UP. Industrial Disputes Act.”

 

10. Learned counsel also relied upon Malik Diary Farms v. Their Workers’ Union, 37 F.J.R. 412 and State of Punjab v. Jagir Singh AIR 2004 SC 4757, to contend that in determining back wages conduct of the workman should also be taken into consideration. Learned counsel also relied upon U.P. Financial Corporation and others v. V.P. Sharma and another (1999) III LLJ 538, where it was held that the public interest should be considered while awarding back wages: Learned counsel also referred to Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 PLC (C.S.) 1083, where it was held that employee must have established that he had not been making earnings during the period he remained out of employment. To summary learned counsel submission was that for awarding back benefits there should be four considerations; (a) conduct of the employer, (b) conduct of the employee during litigation (c) documentary evidence of employee having made attempts to mitigate his loss, (d) proof by employee as to how did he make ends meet during the period he was illegally kept out of job.

 

11. I have considered the submissions made by the learned counsel and have also gone through the record. I will first deal with the question of limitation it has been stated in the grievance petition that the workman was declared fit for resuming duties by doctors on 14-3-2000. Thereafter the workman claimed that he kept on visiting the factory and was kept on false promises. Ultimately he served grievance notice on 24-3-2001. It was further stated by him that he served grievance notice when he was prohibited from visiting the factory. The Labour Court has relied upon the following statement in the cross-examination of witness of the employer:–

 

“It is a fact that petitioner has abandoned his duty with effect from 23-1-2001 as stated in para.9 of my affidavit.” Reference was made to para.9 of the affidavit which reads as under:–

 

“(9) That it has also been informed by the Contractor Mr. Farid Khan, that respondent has abandoned his duty with effect from 21-1-2001 and has not reported for duty since then. There was no Bond of relationship between respondent and applicant.”

 

If the two statements are read together it is not employer who was stating that the workman abandoned his duty but it is the contractor who stated. It must have been considered along with what the workman had himself stated in his grievance petition in paras.3 and 4 and he stated as under:—

 

“(3) That the applicant was met with an accident on 6-9-1999 and was remained under treatment till-14-3-2000”.

 

“(4) That after the recovery from the injury the applicant attended the respondent establishment for allowing duty and granting compensation and expenses suffered by the applicant. But the respondent without any written response forced the applicant to visit the factory again and again but they did not allow him the duty or compensation in this respect. Up till now there is no written notice or reason disclosed that as to why I am not being allowing duty and payment of compensation and only verbally calling the applicant in the establishment for resolution of the grievance.”

 

12. Nobody can be allowed to set up a case different from his pleadings. When the workman had not pleaded that he was allowed to continue work till January, 2001 how the employer’s sentence can be plucked out of context. The Labour Court read that sentence without going to context ‘i.e. para.9 of affidavit-in-evidence with reference to .which that sentence was uttered and paras.3 and 4 of the grievance petition. Since the grievance notice is barred by time the grievance petition must also be treated as barred by time. It is settled law that where the matter is barred by time the Court cannot go into merits of the controversy between the parties. If any authority is needed one may refer to Fazal Elahi Siddiqui v. Pakistan through Secretary’ Establishment and 2 others PLD 1990 SC 692, Wali Muhammad Khokhar v. Government of Sindh and others 2001 SCMR 912 and Muhammad Latif v. Assistant Chief of Air Staff (Personal) and others 2005 SCMR 335. The reason is not far to seek. Limitation shuts the door and bars the remedy. Statutes of limitation are statutes of repose. It is in the interest of society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils. However since there could be serious risk of injustice it was necessary that provision be made to protect bona fide litigants. That is why the section 84 of the Industrial Relations Act, 2008 made provisions of section 5 of the Limitation Act applicable to proceedings and things to be done under the Act of 2008. In his application for condonation of delay no ground whatsoever has been made for condoning the delay. Mere statement that he was kept on promises is not sufficient to condone delay.

 

13. In view of the above discussion, I do not think that it would be necessary to advert to other submissions made by the learned counsel. The result of the above discussion is that this writ petition is allowed, order passed by the Labour Court below on 31-7-2009 is set aside and grievance petition filed by present respondent No.2 before respondent No.1 is dismissed. There shall be no order as to costs.

 

H.B.T./A-161/K Petition allowed

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