' FAQIR MUHAMMAD KHOKHAR, J.---These petitions for leave to appeal, under Article 212(3) of the Constitution of Islamic Republic of Pakistan, by the Bank employees as well as by the National Bank of Pakistan (employer) are directed against common judgment dated 17-7-2003 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466 R/CW/2002.
2. The petitioners/Bank employees were appointed on fixed salaries by the National Bank of Pakistan in various categories of Godown Staff such as temporary Godown Keepers/Chowkidars or on daily wages. As Assistants, Cashiers, Steno-typists, Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers and Watermen etc. They continued in service for a number of years with short breaks in service from time to time without being regularized. The services of some of them were terminated. Therefore, they filed appeals before the Tribunal for regularization, or as the case may be, for reinstatement and regularization in service as permanent employees of the Bank.
3. The Tribunal accepted-most of the appeals of the Godown staff and the daily wage employees (Petitioners in Civil Petitions No.1772, 1789 to 1795, 1839, 1840, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606/2003), by the impugned judgment, dated 17-7-2003, in terms of para. 10 thereof to the following effect:--- "Result of the aforementioned discussion is that the appeals shown at serial Nos. 1 to 240 filed for regularisation by the Godown Staff and the daily wage employees .Succeed and are accepted. The respondent-Bank is directed to regularize the services of appellants who have completed three years of service with breaks of not more than 15 days between any two consecutive appointments.
The regularization exercise should be completed within five months of the receipt of this judgment.
While admitting these appeals this Tribunal had passed orders restraining the respondent-Bank from passing any adverse orders against the appellants. Therefore if services of any of the appellants were terminated during the pendency of his appeal, the same being violative of the Tribunal's orders, stands set aside and the affected employee is reinstated in service and entitled to payment of salary for the-intervening period."
' However, the appeals of the employees (Petitioners in Civil Petitions Nos.1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994,.1996 to 1998, 2074, 2077, 2088, 1164, 2449, 2464, 2482 to 2484, 2489 and 2498 of 2003) were dismissed as time-barred. The appeals of the petitioners (in Civil Petitions Nos.1841 to 1843 of 2003) against their termination from service were also accepted and the respondent-Bank was directed to regularize their services in accordance with the criteria laid down in para.10 of the impugned judgment for regularization of temporary Godown Staff and daily wages employees whose services had not been terminated. The appeals of the petitioners (in Civil Petitions Nos. 1939, 1991, 1992 and 1995 of 2003) were also dismissed as tithe-barred on the ground that they had been pursuing their remedies for regularization/reinstatement in service before the National Industrial Relations Commission despite the introduction of section 2-A in the Service Tribunals Act, 1973 (hereinafter referred to as the Act of 1973). Hence these petitions for leave to appeal by the employes ,for grant of back-benefits, against conditions of regularization and against dismissal of their appeals as time-barred and also by the Bank against the regularization/reinstatement of the employees in service.
4. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003) submitted that the Bank had agreed to absorb the petitioners and other employees after a meeting with representatives of the staff. Some of such employees had already been permanently absorbed. The Bank had issued a Circular Letter No.P/2003 dated 1-8-2003 which clearly showed that regular vacancies numbering up to 1500 were available to regularize the temporary Godown staff and the daily wages employees. The impugned judgment of the Tribunal was required to be modified so as to regularize and absorb the petitioners/employees from the date of their initial appointment with all back-benefits as was done in the case of other employees who were similarly placed. The learned counsel pointed out that there was a confusion in regard to the remedy provided to the employees of statutory corporations or other bodies established and controlled by the Federal Government. The controversy was eventually resolved by this Court in the case of Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 wherein it was held that remedy of appeal under section 2-A of the Service Tribunals Act, 1973 had become available to such employees retrospectively in respect of their service related grievances. Even otherwise the question of limitation was of a technical nature which ought not have been treated to be insurmountable hurdle as laid down in the case of Managing Director Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724.
5. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court for the employees (Petitioners in Civil Petitions Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003) argued that ordinarily the findings of fact recorded by the Tribunal were not interfered with by this Court. The petitions filed by the Bank did not raise any substantial question of law of public importance as contemplated by clause (3) of the Article 212 of the Constitution which was necessary for grant of leave to appeal. It was further submitted that admittedly the letters of appointment of the employees had been issued by the Bank itself. There was no necessity of lifting veil merely on the ground taken by the Bank that the temporary Godown staff and daily wages employees were recruited on behalf of the account holders/borrowers. The learned counsel submitted that the entire bank staff whether temporary or .Permanent was there at the expense of the account holders. The learned counsel relied on the case of National Bank of Pakistan v. Ghulam Rasool 2002 PLC (C.S.) 1639 in support of his contention that in similar cases, this Court had declined interference with the regularization of the temporary Godown staff by the Tribunal. The learned counsel lastly submitted that the petitioners-employees were entitled to be regularized in service with back-benefits and without any preconditions.
6. Mr. Ihsanul Haq Chaudhry, Advocate Supreme Court, learned counsel for the employees (Petitioners in Civil Petitions Nos.2021 to 2073, 2075, 2076, 2078, 2079, 2164, 2179 and 2180 of 2003) argued that the appointment of the petitioners, like other employees, was made against permanent posts but the Bank adopted an illegal policy to employ the Godown and daily wages staff on fixed salary, from time to time, with short breaks in service after every 89 days. In many cases, the employees were not issued any letters of appointment or termination from service. The Bank itself had issued instructions in the year 1991 for absorption/confirmation of the daily wages employees and Godown staff. The lists of Godown staff and daily wagers were prepared and a high-powered committee was constituted by the Head Office of the Bank for scrutiny of the lists for the purpose of absorption. A number of such employees were regularized by the Bank by following a policy of pick and choose. However, the petitioners and some other employees were not regularized. It was further pointed out that the Headquarters of the Bank (Personal Management Wing) (Administration Division), Head Office, Karachi, had issued metric. Dated 7-7-1997 whereby was decided to absorb 1000 daily wages staff including temporary Godown staff, 700 in clerical and 300 in non-clerical cadre as on 29-2-1996, on seniority and provincial quota basis subject to fulfilment of qualifications prescribed for the posts. The Bank also issued another policy letter dated 1-8-2003 pursuant to an agreement, dated 20-1-2003 between the National Bank of Pakistan and Collective Bargaining Agent. It was decided that all employees of the clerical staff and non-clerical staff such as daily wagers/temporary Godown staff of the Bank who had completed three years of service in the case of clerical staff and 5 years service in the case of non-clerical staff and had passed their matriculation examination would be employed by the Bank in the regular cadre against 1500 posts provided the gap between their termination/re-appointment did not exceed 15 days. The Head Office of the Bank by Circular dated 15-9-2003 notified instructions to all its Regional Offices to issue the appointment letters to temporary Godown staff and daily wages employees on the spot. The learned counsel next submitted that in somewhat similar circumstances the management trainees of the Sui Northern Gas Company Ltd, Karachi were also inducted/regularized. Reference was made to the cases of Engineer Naraindas and another v.
Federation of Pakistan and others 2002 SCMR 82, the Managing Director, Sui Southern Gas Co. Ltd. v.
Saleem Mustafa Shaikh and others PLD 2001 SC 176 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796. The learned counsel contended that even in the past, a number of daily wages employees and temporary Godown staff were regularized in service by the Tribunal as affirmed by this Court judgment, dated 23-10-2001 in Civil Petitions Nos.1833-L of 2001 to 1848-L of 2003. Civil Review Petitions Nos.1-L of 2002 to 39-L of 2002 thereagainst were withdrawn by the Bank. Similarly, the Bank had also withdrawn Civil Petitions Nos.2172 and 2173 of 2001 titled National Bank of Pakistan and others v. Umer Hayat and others on 15-1-2002 involving similar cases. It was too late in the day for the Bank to say that the petitioners and similar other employees were employed by the Bank on behalf of the borrowers who could not be considered to be the employees of the Bank or that their appointments were of seasonal nature: The learned counsel submitted that where the appointment of an employee continued for over a period of years, the same was to be treated as regular notwithstanding the use of terminology as officiating, temporary and until further orders. Reliance was placed on the cases of Federation of Pakistan v. Raees Khan 1993 SCMR 609 and Abdul Majeed Sheikh v. Mushafee ,Ahmed PLD 1965 SC 208. Reference was made to the case of Ghulam Rasool (supra) wherein it was held that artificial break in service would not make any difference and such employees of the National Bank were to be treated as regular. The learned counsel argued that all the employees who were similarly placed were required to be treated alike. The judgments passed by this Court in such cases would be considered to be judgments in rem and not in personam in view of ratio laid down by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185. It was pointed out that the employees who were regularized as a result of judgment, dated 25-10-2001 by this Court in Civil Petitions Nos.1837-L of 2001 to 1848-L of 2001 had also been further promoted in the meanwhile. As regards Civil. Petition No.2164 of 2003, the learned counsel contended that in the facts and circumstances of the case, the Tribunal was not justified to dismiss the appeal of the said petitioner as time-barred.
7. Ch. Ghulam Qadir, Advocate Supreme Court learned counsel for the employees (Petitioners in Civil Petitions Nos.1772, 1789, 1790, 1792, 1793 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909, 1910, 1911 to 1915 of 2003) submitted that neither the conditions for reinstatement/regularization of the petitioners could be imposed nor their back-benefits could be denied by the Tribunal. The impugned judgment was contrary to the earlier decisions of the Tribunal in similar cases which were upheld by this Court. Reference was made' to the judgment, dated 2-6-2003 passed by the Tribunal in Appeals Nos.1170-R/CW of 2002 to 1175/R-CW of 2002. As regards the cases of termination of the employees (Petitioners in Civil Petitions Nos.1909, 1913 to 1915 of 2003), the learned counsel submitted that -the Tribunal ought to have accepted their appeals by condoning the delay in filing the appeals. He referred to the cases of Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514, Hameed Akhter Niazi v.
Secretary, Education Division, Government of Pakistan and others 1996 SCMR. 1185 and. Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645. It was further submitted that since the orders of termination of employees passed by the Bank were void ab intio and nullity in the eye of law.
Therefore, the question of limitation would not arise. Reliance was placed on the cases of Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856, Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37, Syed Ali \hbas and others v. Bishan Singh and others PLD 1967 SC 294. ('h. Ital. Hussain v.
Chief Settlement Commissioner MD 1965 SC 68 Mailk Khawaja Muhammad and 24 others v.
Marduman Babar Kahol and 29 others 1987 SCMR 1543, Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 and Allandino v. Fakir Muhammad and another PLD 1969 SC 582.
8. Hafiz Tariq Nasim, Advocate Supreme Court, learned counsel for the petitioners (Civil Postions Nos. 1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2008, 2167 and 2171 to 2174 of 2003) reiterated the arguments advanced by the other learned counsel for the employees,
9. On the other hand, Khawaja Muhammad Farooq, . Senior Advocate Supreme Court, the learned counsel for the National Bank (Petitioners in Civil Petitions Nos. 2188 to 2432 of 2003) submitted that in all 316 appeals were filed by the employees before the Tribunal against the Bank with the following breakup:--- (a)Temporary Godown Staff 138 Appeals (b)Temporary Godown chowkidarsChowkidars133 Appeals (c)Daily Wagers 45 Appeals
(d) 76 appeals by the persons whose services were terminated which included categories a to c.
' The learned counsel next argued that the daily wagers and temporary Godown staff were not the employees of the Bank as they were hired on borrowers account. The same was clearly borne out from the letters of their appointment of these persons. The borrowers had authorized the Bank to make payment of salaries to the temporary Godown staff and debit the same in their account.
Such persons were never inducted in service of the Bank and were paid a fixed consolidated salary inclusive of allowances. They were not appointed against sanctioned posts in conformity with the National Bank of Pakistan (Staff) Service Rules, 1980 (hereinafter referred to as the Service Rules).
Since the petitioners were not in the service of the Bank, therefore, they were not to be treated as civil servants for the purposes of section 2-A of the Service Tribunals Act, 1973. Their services stood automatically terminated on the expiry of stipuiated period in accordance with terms and conditions of their appointment or earlier on the adjustment of the finance facility of the borrowers.
The petitioners were hired from time to time for specified period either on behalf of the same or a different borrowers. Each time the appointment was essentially a temporary or contractual one without there being any continuity of service and in some cases there was gap for considerable period of time between their termination and re-employment. It was next contended that the format of the letters of appointment had been changed by the Bank but the Tribunal relied on the obsolete form of earlier letters of employment. The financial impact of tne claim of the petitioners, if allowed, would be a matter of grave concern for the Bank. The learned counsel relied on the judgment of this Court in the case of Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC) where the previous service of a bank employee rendered with the Government was not counted towards pensionary benefits. It was submitted that the policy decisions of 1996 and 2003 for absorption/induction of temporary Godown staff and daily wages employees were taken by the Bank subject to the availability of regular and permanent posts. The temporary Godown keepers/Godown Chowkidars and the daily wages employees were either not in service at the time of commencement of such policy decisions or they otherwise did not fulfil the criteria laid down by the Bank. As regards Circular letter, dated 1-8-2003 issued by the Bank for creation of 1500 posts for regular absorption of such employees, the learned counsel pointed out that the said circular letter reflected only the state of affairs existing on the said date and not to any prior point of time from which the temporary Godown staff and the other daily wage employees were claiming their absorption/induction. It was further stated that circular letter, dated 1-8-2003 was issued by the Bank after the impugned judgment dated 17-7-2003 of the Tribunal. A number of such employees had withdrawn their cases from the Tribunal so as to avail the b"nefit of the said circular letter and were appointed on regular basis in terms thereof.
10. The learned counsel for the Bank next contended that the mere fact that temporary appointments of the petitioners continued for several years would not mean that those would automatically be considered to be permanent. Reliance was placed on the-cases of Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156 and Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37. It was urged that the earlier judgments of this Court and the Tribunal in regard to the regularization of temporary Godown staff or the daily wages employees were distinguishable and were in personam and not in rem.
Reference was made to the cases of Managing Director, Sui Southern Gas Company Ltd. Karachi v.
Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796, Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212 Muhammad Sohail and 2 others v. Government of N.-W.F.P. And others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145 and Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145. The terms and conditions of service of the employees were governed by letters of their appointment and not otherwise in view of the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101. These persons were hired, from time to time, on work charge basis/daily wages for a particular project and for a specified duration. Therefore, they could not be considered as regular employees irrespective of their length, of service. The learned counsel relied on the cases of WAPDA and others v. Khanimullah and others 2000 SCMR 879. Reference was also made to the Black's Law Dictionary Revised 4th Edition (1968), page 1518) wherein ' seasonal employment' was defined as occupations which could be carried on only on certain seasons or fairly definite portion of the year and did not include such occupations as might be carried on throughout the entire year. The learned counsel emphasized that the employment for a specific project and a certain period came to an end automatically on completion of project or expiry of the specified period in view of the law laid down in the cases of the State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111 and Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249. He also referred to the cases of General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 and Nasir Jamal and 23 others v.
Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Kar.) in support of the proposition that there was nothing to imply a permanent appointment of a person who was reemployed after a short gap of earlier termination and that where a person hired on behalf of the borrower could not be treated to be in the employment of the Bank. Some of these persons were daily wages employees being paid salary only with reference to the number of working days excluding holidays. Therefore, they could not be treated to be the Bank employees. Reference was made to the cases of Muhammad Yaqoob v. The Punjab Labour Court Nos.1 and 5 others 1990 SCMR 1539, Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lahore).
11. The learned counsel for the Bank further argued that the Tribunal had unjustifiably treated appeals of these employees to be within time who had wasted their time in filing their departmental appeals which were not required in view of section 2-A of the Act, 1973 and rule laid down in the cases of Syed Aftab Ahmed and others v. K.E.S.C. And others 1999 SCMR 197 and Ghulam Abbas and others (supra). The employees were required to file their appeals before the Tribunal within 30 days of termination of their services or, as the case might be, the refusal to regularize their service by the Bank. An employee Fiaz Ahmed (Civil Petition No.1841 of 2003) had filed his appeal before the Tribunal on 25-6-2002 beyond the limitation period of 30 days of his termination from service with effect from 19-5-2002. Similarly, Civil Petitions Nos.1934, 1937 and 1938 of 2003 of the employees were also liable to be dismissed as their appeals before the Tribunal were rightly held to be time-barred. The question of limitation was not to be ignoreu in service matters.
Reliance was placed on the cases of Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935, Muhammad Riaz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397, S. Sharif Ahmad Hashmi v. Chairman, Screening Committe, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471, Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389, Sheikh- Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153.
12. We have heard the learned counsel for the parties at length and have also perused the relevant record. We find that the employees/petitioners were recruited by the Bank by issuing appointment letters indicating, in some cases, that they were to be governed by the Service Rules of the Bank for disciplinary matters. They were not selected or recommended by the borrowers. Therefore, on no principle of law and enquity, they could be treated to be the employees of the borrowers. It would hardly make any difference even if the salaries of the temporary employees/Godown staff or the daily wages employees were debited to the borrowers account. For all practical purposes and legal consequences they were placed under the administrative control of National Bank of Pakistan. A somewhat similar question was considered by this Court in the case of Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477. In the precedent case, the services of an employee of Afghan Refugees Organization were terminated after he had rendered more than 10 years of temporary service. A plea was taken that the employees of the said Organization were not Government servants as their salaries were not paid from the Annual Federal Budget and that annual expenditure incurred was reimbursed by the United Nations High Commissioner for Refugees. This Court repelled the contention by holding that employees of the said Organization were civil servants and were entitled to pensionary benefits.
13. The record shows that many of the employees were appointed and re-appointed temporarily or on daily wages for short periods reemployed for same or similar purposes, from time to time, with short breaks of service. The total length of service of these employees was stretched over a period from 10 years to 20 years. The nature of the functions performed by these employees fell in category-II of the Staff Service Rules which included Assistants/Cashiers/Godown Keepers/ 'Machine and Telephone Operators, Bank Guards/Chowkidars Messengers and other inferior staff.
However, they were recruited on fixed emoluments which were ridiculously lower` than the normal pay scales prescribed for the regular incumbents of the posts in that category. The Bank took policy decisions several times for regularization/induction or absorption of such employees and also inducted/absorbed many of them in service on regular basis. The ',,National Bank (Personal Management Wing) (Administrative Division)," Headquarters, Karachi, issued a letter dated 7-7- 1996 clearly indicating therein that the Central Union Committee in its meeting held on 29-2-1996 at Karachi had decided that 1000 daily wages staff and the temporary Godown staff (700 posts in clerical and 300 posts in non-clerical cadre) as on 29-2-1996 would be absorbed on seniority and provincial quota basis subject to the fulfilment of qualifications prescribed for the posts. It was brought to our notice that on the strength of letter dated 7-7-1996 some of the appointees on daily wages and temporary Godown staff were absorbed by the Bank on regular basis whereas these employees were left out. Again the National Bank of Pakistan, Head Office, Karachi issued Office Circular No.10/2003 dated 1-8-2003 notifying the Memorandum of Agreement arrived at between the Bank and the Collective Bargaining Agents (C.B.A.) for regular absorption of temporary Godown staff and daily wages employees. It was agreed by the respondent-Bank that all persons of clerical staff who had completed three years service with minimum qualification of Secondary School Certificate (Matriculation) or equivalent with a satisfactory record of service would be given employment by the Bank with effect from 15-9-2003 in regular cadre in line with their qualification and experience with a special concession to females and handicapped in whose case the qualifying period of such service was fixed as one year. It was further decided that in case of non- clerical staff, such persons if matriculate with minimum five years bank experience as on June, 2002 would be given employment by the Bank with effect from 15-9-2003 in regular clerical cadre in line with their qualification and experience. However, the total number of such regular employment by the Bank to such persons in the regular cadre would not exceed the figure of 1500.
The maximum 15 days' gap was permitted between termination and re-appointment.
14. In the case of Zonal Chief National Bank of Pakistan and others (Civil Petition No.1833-L of 2001) decided on 23-10-2001, the services of a number of such employees were terminated by the Bank while other employees were regularized. The Tribunal reinstated them in service which order was upheld by this Court. In the case of Ghulam Rasool (supra), a Chowkidar of the National Bank was treated to be an employee on stopgap arrangement, therefore, his services were terminated by the Bank. The Tribunal passed an order reinstating him in service which was maintained by this Court and leave to appeal was declined. A some what similar matter was considered by this Court in the case titled as National Bank of Pakistan and another v. Malik Ali Sher (Civil Petition No.849-L of 1993) decided on 18-5-1994. In the said case, the respondent Malik Ali Sher was employed by the Bank as a Godown Keeper against a post - which was of permanent nature. His services were terminated. The Labour Court reinstated him in service and this Court declined to grant-leave to appeal to the Bank.
15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption regularization of the employees. By Acrtice 2-A of the Constitution, which-has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by _Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in - Article 38 of the Constitution also provide, inter alia, that the State shall secure the well-being of_the people by raising their standards of living and by ensuring equitable -adjustment of rights between employers and employees and provide for all citizens, ,within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v: Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it was not in the nature of .a free consent between the agents. On the one hand, State- power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337, it was held that the employer being placed in a position of authority and strength could always coerce employees_ to waive their legal protection and accept contractual terms at the pains of losing his job.
16. In Ghulam Abbas (supra), a number of Management Trainees were .Ordered to be absorbed. It was held that the protection of Labour Laws was available before the. Tribunal while dealing with the cases of workmen. In the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101, it was held that even the contract employees could be reinstated in service in appropriate cases if such appointment had become permanent by efflux of time. A similar view was taken in Abdul Satter and another v. Sui Northern _Gas Pipelines Limited and others 2001 SCMR 193.5.
17. In the present cases we do not consider it necessary to decide the question whether the judgments earlier passed by this Court or the Tribunal in the cases of employees of the Bank were in rem or in personam. However, the principles of distinction between a judgment in rem and a judgment in personam have already been laid. See the cases of F Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34 (S.C.), Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145, Pir Bakhsh (supra) PLD 1983 SC 684, Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567, Mst.
Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684.
18. In our view, the conditions of three years length of service with not more than 15 days break between the consecutive appointments and termination of service imposed by the Tribunal for regularization of service of employees are quite reasonable and are also in line with the policy decisions taken by the Bank itself from time to time. The employees woke up after a deep slumber of more than a decade to seek redress of their grievances. Therefore, it would be unfair and inequitable to grant them monetary back-benefits of service from the dates of their initial appointment.
19. The employees whose appeals have been dismissed by the Tribunal as time-barred fall in two categories. The Civil Petitions 1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077,2080, 2164, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 are of the first category in which the appeals against termination from service were dismissed by the Tribunal as time- barred. The delay was. Sought to be condoned merely on the ground that the orders of their termination from service were void ab initio. The learned counsel for these employees has failed to satisfy us as to how the orders of termination of service of such employees could be termed as void or without jurisdiction. In the case of Sarfaraz v. Muhammad Aslam 2001 SCMR 1062, it was held that proceedings against a void order were required to be initiated within reasonable time. There is no rule of universal application that in all cases of void orders, question of limitation is to be treated to be a mere technicality and a litigant is entitled to invoke the jurisdiction of a Court or the Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay. Reference may also be usefully made to the cases of Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and two others PLD 1990 SC 692, Dr. Anwar Ali Sahto (supra) and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882. Therefore, the impugned judgment of the Tribunal dismissing the appeals of these employees as time-barred does not warrant interference by this Court.
20. However, we find that the appeals in Civil Petitions Nos.1939, 1991, 1992 and 1995 of 2003 falling in the second category were also dismissed by the Tribunal as time-barred. In these cases, the petitioners had moved the National Industrial Relations Commission under the Industrial Relations Ordinance, 1969, for redress of their grievances for regularization/reinstatement in service. The controversy as to the application of section 2-A of the Act of 1973 remained in a state of fluidity for a considerable period of time. The Tribunal itself had declined to exercise its jurisdiction in old cases. The matter was resolved by this Court in the cases of Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197, Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92, Muhammad Yaqub v. Pakistan Petroleum Ltd. And another 2000 SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 by holding that section 2-A would operate retrospectively. Therefore, the National Industrial Relations Commission dismissed their petitions whereupon the Bank passed orders dated 2-7-2002, 30-4- 2002 and 29-2-2002 of their termination from service. These petitioners filed their appeals before the Tribunal on 6-7-2002, 8-6-2002 and 29-4-2002 after filing the departmental appeals. In the facts and circumstances of these cases, the Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of these petitioners as barred by time and to decline them the relief of reinstatement/regularization in service.
21. For the foregoing reasons:---
(i) The Civil Petitions Nos.1772, 1789 to 1795, 1839, 1840, 1841 to 1843, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003 filed by the employees seeking financial back-benefits and waiver of conditions of regularization/reinstatement are disposed of with the direction to the National Bank to regularize/absorb them in service with effect from 15-9-2003, subject to the conditions as laid down in para. 10 of the impugned judgment. The National Bank is directed to issue them appointment letters within one month. Moreover, previous service rendered by them with the Bank shall be counted towards retirement/pensionary benefits.
(ii) Civil Petitions Nos.1939, 1991, 1992 and 1995 of 2003 of the employees are converted into appeals and the same are allowed. Consequently, the impugned judgment of the Tribunal dismissing their appeals as time-barred is set aside. They are reinstated in service from the date of their termination with back-benefits. They shall be regularized/absorbed in service by the Bank with effect from 15-9-2003 in terms of sub-para (I) above.
(iii) Civil Petitions Nos. 1909, 1913 to 1915, 1940 to 1942, 1946, .1993 to 1994, 1996 to 1998, 2074, 2077, 2080, 2164, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 of 2003 of the employees as well as the Civil Petitions Nos.2188 to 2432 of 2003 filed by the Bank are dismissed.