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DR. A. R. KAZI AND 2 OTHERS-Respondents

Constitutional Petition No. 279 of 1976, decided on 17th April, 1979.

(a) Industrial Relations Ordinance (XXIII of 1969)--

- S. 2 (xxviii)--Workman--Question whether a person is employee of company or not--Depends upon circumstances of each cfse-Held, such question can be determined only after evidence allowed to be led--Objection can be raised and decided by Labour Court on merits after recording evidence.

Pakistan Burmah Shell Ltd. v. Sind Labour Court No. IV, Karachi P L D 1979 Kar. 109 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)-

--- S. 25-A, proviso (4) and Limitation Act (IX of 1908), S. 3 Limitation-Contention that application joining petitioner having been filed 18 months after arising cause of action, hence, barred under proviso (4)--Order of Labour Court impleading petitioner as party though not basically incorrect, Court having such jurisdiction yet incumbent upon Labour Court to consider question of limita tion before further burdening petitioner with any responsibility of defending proceedings.

Reliance Bank Ltd. v. United Bank of India Ltd. P L D 1971 Dacca 15 ref.

KhaUd M. Ishaq for Petitioner.

Inamul Haq for Respondents.

Date of hearing : 31st March, 1979.

This is a petition directed against the order dated 9-10-1976 ; passed by the Sind Labour Court No. V1, Hyderabad. The relevant facts are that the respondent No. 2 was employed by one Doctor Qazi respondent No. 1, by agreement dated 28-1-1975 to work in the clinic of the petitioner as a contractor for respondent No. 1. The respondent No. 1 was himself working as a contractor for the petitioner with the designation as Chief Medical Advisor. The codtract with respondent No. 2 was terminated by respondent No. 1 on 28-3-1975. The respondent No. 2 sent grievance notice on 2-4-1975 to the petitioner as well as respondent No. 1 and filed an application under section 25-A of 1. R. O. 1969 against only Dr. Kazi respondent No. 1 in this petition. The respondent seems to have realised later that he should make the petitioner-Company as a party. Therefore, he applied on 9-10-1976, to the Labour Court to join the petitioner as a co-respondent. On the same date viz. 9-10-1976, the Labour Court ordered that the petitioner-Company be impleaded as respondent No. 1. The petitioner felt aggrieved against the same and hence filed this petition.

Mr. Khalid M. Ishaque, the learned counsel for the petitioner has raised several contentions, he points out that the agreement between the petitioner-Company and Dr. Qazi is between two independent contractors, and as such the respondent is not a workman. He has relied upon P L D 1979 Kar. 109 where my learned brother Mr. Z. A. Channa, J. held that an employee' of a contractor with Pakistan Burma Shell was not an employee of the Company. However, the question as to whether a person is an employee of the company or not would depend upon the circumstances of each case and the same can be determined only after evidence has been allowed to be led, and therefore, the Labour Court on 9-10 1976 was not in a position to judge whether respondent No. 2 was in fact an employee of the petitioner or not. This objection could be raised by the petitioner and could be decided by Labour Court on merits after recording evidence. I cannot uphold this objection at this stage.

The next contention of Mr. Khalid Mr, Ishaque is that the applica tion joining the petitioner having been filed on 9-IIJ-1976 was filed 18 months after the cause of such grievance had arisen, and hence the same was barred under the proviso of subsection (4) of section 25-A of I.R.O., 1969. Mr. Khalid M. Ishaque states that under section 3 of the Limita tion Act it was incumbent upon the Labour Court to consider that aspect of the case before ordering the impleading of the petitioner as a party. He has relied upon P L D 1971 Dacca 15 where it has been observed that it is to be seen before allowing the application whether the suit itself will be barred by limitation or not. Mr. Inamul Haq the learned counsel for respondent No. 2 has replied that the question of limitation is mixed ques tion of law and facts and has to be determined only after notice has been issued to the impleaded party and he takes up the objections. I am of tile view that although initial order of the Labour Court in allowing implead ing of the petitioner as a party is not basically incorrect as he had the jurisdiction to implead any one of the parties depending upon circum stances of the case but it would be incumbent upon the Labour Court to consider the question of limitation before the petitioner is further burdened with any responsibility of defending the proceedings and there fore, 1 dispose of this petition in this matter that case wilt go back to the Labour Court for consideration of the point of limitation after hear ing the parties. The petition is thus disposed of with no order as to costs.

M. A. K Case remanded.

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