' AKBAR M. MEMON (MEMBER).---Since common question of facts and law involved in all these appeals, as such, we intend to dispose of all these appeals by this single judgment.
2. Appellants, hereinabove, who were appointed by the respondents as Linemen, have challenged their oral termination order w.e.f. 4-4-1995 against which they served grievance notices upon the respondents on 29-5-1995 and when the same remained unresponded, the appellants approached Sindh Labour Court No. VII, Sukkur by filing grievance Applications Nos.63 of 1995 and others. The said petitions stood abated on 30-5-1998 on account of insertion of section 2A in Service Tribunals Act. The appellants then filed their respective appeals before this Tribunal on 29- 6-1998.
3. Mr. M. L. Shahani, learned counsel for the appellants has argued that these appeals have been filed on the basis of judgment of Hon'ble Supreme Court, rendered in C.P. No.305-K of 1997 and others on 16-4-1998. He has contended that the respondents had filed their written'statement before the learned Labour Court No.VII-Sukkur where they have stated that the appellants were appointed on stop-gap' arrangement, but neither the respondents have been able to produce their letter of appointment nor letter of termination. He has contended that a Lineman cannot be a temporary employee. He has further contended that Standing Orders Ordinance would be applicable to the establishment of respondents and in case their version is taken into consideration, then temporary employee is a person, who has worked for 89 days, whereas in the case of appellants, they have worked for nearly three years as such, they cannot be called as temporary employees. In this regard he has placed reliance on a judgment, rendered by the Hon'ble Supreme Court in 2002 PLC (C.S.) 887. He has also placed reliance on a judgment rendered by this Tribunal in Appeals Nos. 572 to 575 (K)/1998, decided on 23-7-2002. He has lastly contended that the oral order of termination passed by the respondents be set aside and the appellants be reinstated with all back-benefits and continuity of service.
4. Mr. Abdul Majeed, learned counsel for the respondents has contended he adopts the same arguments, which were advanced by him in Appeals Nos. 572 to 575 (K) of 1998 on which he was informed by us that those appeals were with regard to the appointments of the incumbents, who were sons of late employees of the respondents. On hearing so, he has contended that there is no departmental appeal filed by the appellants. At the same time the appeals are barred by limitation as the termination had taken place w.e.f. 4-4-1995, whereas the present appeals have been filed on 29-6-1998. In such circumstances, he has contended that the appeals are liable to be dismissed only on the point of limitation. In support of his contentions, he has relied on the judgment of this Tribunal in Appeals Nos.2414(K) of 1997 to 1877. (K) of 1997, decided on 7-3-2000 and CPLAs Nos. 231-K and others which judgment was rendered on 20-7-2000.
5. Mr. M.L. Shahani, learned counsel for the appellants in reply has contended that the very grievance' notice, which was sent by the appellants to the respondents, can be considered to a departmental appeal. At the same time he has contended that the written statement filed by the respondents in the Labour Court available at page-33, would show that the appellants were appointed in March, 1992 and in case they were terminated w.e.f. 4-4-1995, it would appear that they had worked for more than three years. In such circumstances he has contended that the position of appellants would not be that of temporary employees as has been held in a case reported in 2002 PLC (C.S.) 887.
6.. After hearing the arguments of the learned counsel, appearing for the parties, we have gone through the entire, appeal file.
7. There is no denial of the fact that the present appellants were appointed by the respondents as temporary Linemen in March, 1992 and that their termination was effected from 4-4-1995, which shows that they have served the respondents for more than three years. At the same time, there is no denial of the fact the Standing Orders Ordinance will not be applicable to the establishment of respondent and subsection (b) to section 2 defines a workman in the following words:-- "(b) A "permanent workman" is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment including breaks due to sickness, accident, leave, lock out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment (and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months)."
' It would thus appear that the appellants, who wefe allegedly appointed as temporary employees by the respondents had worked for more than three A years, as such, they cannot be called as temporary employees, as has been alleged by the respondents. At the same time, Mr. M.L. Shahani has rightly argued that a Lineman cannot be a temporary employee, as the nature of work is continuous one and it was without any break, as such, we are of the view that their status would be that of permanent employees. At the same time the version, given by the respondents in their written comments, is totally different from the one, which they have given before the learned Labour Court No. VII, Sukkur. It is the case of appellants that while working as Linemen they obtain some training for which the respondents have stated that the said training could not have conferred any permanent status to the employees, but in the written statement, which is available at page-33, it has been stated that the appellants were appointed during ban period and it was totally a stopgap arrangement. If at all, it was a stop-gap arrangement then we would like to take the benefit of a case reported in (1996 SCMR 314) where it was observed by their Lordships of the Supreme Court:-- "North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1975--- R. 10(2) Constitution of Pakistan (1973), Art. 212 (3) Termination of services on ground that appointment of civil servant was irregular. Service Tribunal ordered reinstatement of civil servant.
Validity. Department's plea was not that civil servant lacked qualifications for the post in question.
Department having itself appointed civil servant on temporary basis in violation of to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointment. Service Tribunal having reinstated civil servant could not be deemed to have committed any illegality or irregularity. Leave to appeal was refused in circumstances."
' Even otherwise, it is not the case of respondents that the appellants were lacking qualification and the only ground which has been taken is that they were temporary employees, as such, their termination is quite legal. In this regard, we would like to mention that Standing Order 12(3) of the Standing Orders Ordinance, 1968 clearly makes a mention that while terminating the service of such an employee explicit reasons should be given in writing, whereas in the case of present appellants, there is no such order.
7. As regards the objection of non-filing of departmental appeal, which has been raised by the learned counsel for respondents, we are of the view that immediately on oral termination; the appellants served their grievance notices upon the respondent and when nothing was heard they filed the grievance petitions before learned Labour Court where the petitions were abated on account of insertion of section 2A in the Service Tribunals Act, and, therefore, the present appeals were filed before this Tribunal. In such a situation it cannot be said that the appellants had not filed their departmental appeals. Even otherwise if the respondents want to take the benefit of Act XVIII of 1991 then too, their contentions cannot be taken into consideration as proviso to subsection (3) of section 8 speaks that the affected person should be given an opportunity of being heard.
Whereas in the present case no such opportunity' was afforded and the service of present appellants were straightaway dispensed with orally.
8. Since the termination has taken place in violation of the principles of natural justice, as no show- cause notice was served upon the appellants nor they were afforded any chance of personal hearing to put up their defence, we are of the view that the action of the respondents is nothing but colourful exercise of powers, as once they have appointed the appellants, they cannot take the plea that the appointments were made during ban period or that they were appointed on stop- gap arrangement, as such, we while allowing the appeals in band order that the appellants be reinstated in service in the same position from which they were terminated with continuity of service without back-benefits, as the same have not been claimed by them in their grievance notice.
9. Since the pay scales have been revised w.e.f. 1-12-2001, as such, the respondents are required to re-fix the pay of the appellants within three months of this judgment.
10. In the circumstances of the case, there will be no order as to costs. Parties concerned be informed accordingly. Reinstatement Ordered. .