' ABDUR RAZZAQUE (MEMBER)---The abovementioned appeals fall in two broad categories. In the first category (listed as Regularization Cases) the appellants were in the service of the National Bank of Pakistan (hereinafter referred to as NBP or the Bank), at the time of filing their appeals. Their prayer is that the Bank be directed to regularize their services. The second category (listed as Termination Cases) is of those whose services had been terminated by the Bank. Their prayer is that they be reinstated in service and regularized with back-benefits. Majority of the appellants in both categories are temporary Godown Keepers/Chowkidars (hereinafter referred to as Godown staff). The rest are daily wage employees viz: Assistant Cashiers, Stenotypist. Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers, Watermen etc. As all appeals essentially involve similar questions of law and facts, we propose to dispose them of by this consolidated judgment.
2. Case of temporary Godown staffs seeking regularization is that they were appointed by the Provincial/Zonal/Regional Authorities of the Bank after due process on lump sum monthly salaries paid by the Bank and although on papers their appointments were for specified periods against borrowers account and fresh appointment letters were issued from time to time with short breaks, practically they performed their duties on a continuous basis for 10 to 15 years without any break, on clerical jobs of permanent nature in the Bank branches that in most cases had nothing to do with keeping watch on the pledged stocks of the borrowers. Similarly the daily wage employees contend that they were appointed to perform duties of permanent nature in the Bank and had been working for years to the satisfaction of their superiors continuously without any break. Both the Godown staff and the Daily wage employees assert that while their juniors were regularized from time to time they were meted out a discriminatory treatment. Citing judgements of this Tribunal upheld by the Supreme Court of Pakistan, learned counsel for the appellants have argued that placed in similar situation the appellants too are entitled to the benefits of these judgements in the light of law laid down by the Hon'ble Supreme Court of Pakistan in 1996 SCMR 1185 and applied by this Tribunal in deciding appeals of similar nature.
3. Arguing the case of terminated appellants seeking reinstatement and regularization learned counsel have contended that having served the Bank for long years on permanent jobs they had acquired the status of regular employees and therefore their termination, often verbal without giving any Show-Cause Notice, hearing or reason, was illegal and unlawful in the light of judgments of this Tribunal upheld by the apex Court, in similar/identical cases.
4. Learned counsel for the respondent-Bank have based their arguments on the terms and conditions of appointment letters. It would be appropriate to reproduce a typical letter of appointment of Godown staff as under:-- "Dear Sir, ' With reference to your application and subsequent interview, subject to your being found medically fit, you have been selected for appointment as Temp: Godown Keeper with effect from -- -- to by the Prov. Headquarters (Pb), Lahore on the following terms and conditions.
1. Your appointment is on behalf of our borrowers, on purely temporary jobs, which will last for a limited period specified above to look after pledged/hypothecated stocks of the borrowers.
2. Your services will stand terminated automatically after the expiry of the aforesaid period without any notice or pay in lieu thereof, even before the expiry of this period.
3. You will draw a consolidated salary of Rs,1892 P.M.(Rupees One thousand eight hundred ninety two only) per month.
4. Apart from the fact that your services are purely temporary and on contract basis, your terms and conditions of services regarding leave and disciplinary action will be governed by the National Bank of Pakistan, (Staff) Service Rules, 1980 as in force from time to time and you will be required to subscribe to and agree to be bound by the condition mentioned herein.
5. You will be liable to be transferred to any Branch of the Bank in connection with similar nature of work.
6. You are required to produce the following:--
(i) Reference from three respectable persons acceptable to the Bank.
(ii) Last Employer's Certificate
(iii) Three copies of your recent (Passport size) photographs.
(iv) Domicile certificate.
(v) Cestificate in respect of your date of birth/age.
7. You will have to appear before the Bank's Medical Officer at your expense and obtain a Medical Certificate of fitness from him. Please obtain at your own expenses X-ray of your chest for examination of the Bank's Medical Officer.
8. If the above terms and conditions are accePtable to you, please report yourself for duty to the Manager, NBP. C.L. Br.
Sheikhupura on/before----------- positively otherwise your appointment will be considered as cancelled.
' You will sign the duplicate copy of this appointment letter in token of having accepted these terms and conditions. Yours faithfully. (Sd.)
(For Regional Head)
' Learned counsel for the respondent-Bank have vehemently averred that as evident from the letters of their appointment, the Godown Staff were employed for specific periods of time against specific jobs of purely temporary nature on fixed salaries debitable to borrower's account and on condition that their services were terminable automatically on the expiry of such specified periods or even earlier without assigning any reason. Besides they were told clearly that they would not be deemed to be employees of the Bank. The appellants accepted terms and conditions of their appointment. Their services were terminated from time to time and fresh appointment letters issued with breaks in service. The counsel argued that this Tribunal had to base its decision strictly on terms and conditions of appointment. The counsel cited judgments in 1996 SCMR 1145, 1996 SCMR 218, 2001 SCMR 1935, PLD 1980 SC 323, 1990 SCMR 1539 and 2000 SCMR 879 in support of their arguments. Relying specifically on PLD 1980 SC 323, 1990 SCMR 1539 and 2000 SCMR 879, the counsel argued that similarly, irrespective of their length of service, the work charged employees could not claim status of permanent employees and their services were terminable on expiry of term of employment. As for earlier judgments of this Tribunal upheld by the Hon'ble Supreme Court of Pakistan, the learned counsel averred vociferously that these were in personam, their facts and circumstances were distinguishable and therefore, these judgments could not serve as precedent cases for the purpose of present appeals. The counsel also contended that the earlier cases had succeeded because points now being raised by them with regard to the terms and conditions of appointment were not adequately brought up before the Tribunal or the Supreme Court of Pakistan. The learned counsel also stated that the appellants seeking regularization had since been terminated in accordance with terms and conditions of their appointment and they were no longer in the service of the respondent-Bank. Relying on 1977 SCMR 599, 1978 SCMR 367, 2000 PLC (C.S.) 1109 and 1998 SCMR 822, the counsel vehemently opposed the appeals involving termination and seeking reinstatement/regularization, on grounds of limitation, even if the orders were void.
5. We have heard the arguments of the parties and perused the available record. It will be appropriate to briefly survey the earlier judgements upheld by the apex Court in similar/identical cases involving NBP and its employees.--
(a) In Civil Petition No,849-L of 1993 filed by the respondent-Bank against the judgment dated 31-3- 1993 passed by the learned Single Judge of the Lahore High Court in Writ Petition No,9043/90 filed by Malik Ali Sher, Godown Chowkidar/Godown Keeper, the esteemed Supreme Court of Pakistan vide judgment dated 18-5-1994 upheld the verdict of the High Court to the effect that the said Malik Ali Sher shall be treated as a permanent employee of the Bank within the meaning of rule 6, Category-Ill, Chapter-II of National Bank of Pakistan Staff Services Rules, 1980. The Civil Petition of the Bank was dismissed.
(b) Appeal No,529(L)/97 filed by Syed Mazhar Hussain a Godown Chowkidar of NBP Sheikhupura seeking regularization was accepted by this Tribunal on the ground that two of his juniors had been regularized. The respondent-Bank's Civil Petition for Leave to Appeal No,1640-L/1998 was dismissed by the Supreme Court of Pakistan.
(c) In Civil Petitions Nos.1833(L) of 2000 to 1848(L) of 2000, 2127-L of 2001 to 2130(L) of 2001, 3149(L) of 2001, to 3153(L) of 2001, 1878(L) of 2001 to 1884(L) of 2001, 1905(L) of 2001, 1906(L) of 2001 and 3204(L) of 2001 to 3208(L) of 2001 filed by the respondent-Bank and some employees against the judgments of this Tribunal in appeals filed before it, the Supreme Court of Pakistan vide consolidated judgment dated 25-10-2001 not only upheld the decisions of this Tribunal directing the respondent-Bank to regularize the services of the appellants who were in service and to reinstate and regularize service of those terminated but also granted back-benefits in Civil Petitions Nos. 1878(L) of 2001 1884 (L) of 2001, 1905(L) of 2001, 1906(L) of 2001 and 3204(L) of 2001 to 3208(L) of 2001 by converting the C.P.L.As. Into appeals.
6. We have carefully gone through the judgments mentioned briefly, hereinabove, and find that notwithstanding terms and conditions given in the letters of appointment of Godown Staff, it has been settled that having been appointed by the Bank and having performed duties of permanent nature on a continuous basis for long years in connection with affairs of the Bank, and despite short artificial breaks, the Godown Staff were permanent employees within the meaning of rule 6 Category-III, Chapter-II of the NBP Staff Service Rules, 1980. Similarly the daily wage employees having worked for long years on a continuous basis on jobs of permanent nature to the satisfaction of the Bank, had acquired the status of permanent employees and a legitimate expectancy to be r tgularized, especially when their juniors had been regularized from time to time.
7. We gather from some documents placed on record by some appellants that there was a Policy of the Bank till 1991 to periodically regularize the services of temporary Godown Staff and daily wage employees having satisfactory record of service as a result of an understanding/agreement between the Bank Management and Trade Unions. In 1996 in a meeting held at Peshawar, the President NBP announced that temporary Godown Staff and daily wage employees would be regularized, 20% on merit and 80% by region-wise quota-cum-seniority. It seems that while this was not done in an organized and transparent manner, regularization of some employees did take place ostensibly in an arbitrary manner as alleged by the appellants. It also appears that particulars of temporary Godown Staff and daily wage employees were collected by the Bank authorities from time to time giving them hope of regularization. There was once a proposal that those with three years of service and not more than 15 days of gap between appointment be regularized.
8. We also gather from documents produced by some appellants that the Bank classifies the Godown Staff as regular and seasonal. Regular category is further divided into temporary and permanent. We also find that earlier, temporary staff used to be employed for less than six months.
This period was reduced to less than three months. There were written instructions in the letters of approval given by Zonal/Regional Heads to the effect, that there must be a gap between two consecutive appointments. Thus while the Godown Staff practically worked on a continuous basis, often on regular clerical jobs in Bank branches, breaks were introduced artificially to be able to say that they had not worked on continuous/permanent basis. This strategy provided well-educated and cheap manpower to the Bank for various clerical jobs in Bank branches and was undoubtedly exploitative. The appellants had no choice but to accept unfair terms because of their weak bargaining position. We also observe from communications on record that the appellants had all along performed their duties to the satisfaction of their Branch Managers. The plight of appellants i,e, Godown Keepers and daily wage employees is summed up aptly by the observations of the apex Court in 1993 SCMR 609 as under:- "We have consciously made reference about this matter as it is common knowledge that in spite of institution of ad hoc appointments unfortunately being deeply entrenched in our service structure and the period of ad hoc service in most cases running into several years like the case of the respondent (8 years ad hoc service in BPS-17), ad hock appointees are considered to have hardly any rights as opposed to regular appointees though both types of employees may be entrusted with identical responsibilities and discharging similar duties. Ad hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments, In Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115), it was observed that when continuous application is not specifically authorized by any, law and the Government/competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g. Failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. And in proper cases, therefore, Courts (at that time Service Tribunals had not been set up) are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it. In this judgment various decisions of the Supreme Court were considered. In Abdul Majid Sheikh v. Munshaffe Ahmed (PLD 1965 SC 208), appellant's appointment had been described as "on probation" and "thereafter terminable by giving 14 days' notice" and "temporary" and "until further orders" but the order of termination of this service on the basis that it was temporary until further orders, was declared to be illegal."
9. Adverting to the argument of the learned counsel for the respondent-Bank that terms and conditions given in the appointment letters were not sufficiently explained in earlier litigations before this Tribunal or the apex court, we find that this does not appear to be true. Ch. Ghulam Qadir Advocate, counsel for some appellants, has vehemently rebutted this assertion and stated that the terms and conditions given in the letters of appointment were brought up by the learned counsel for the Bank Khawaja Muhammad Farooq who happens to represent the Bank before us, and that the same were considered and adjudicated upon. Similarly we do not agree with the learned counsel for the Bank that facts of present appeals were different from those decided earlier. We find that the same questions of law and facts, as in present appeals, were involved in earlier litigations as well. We have gone through the judgments cited by the learned counsel for the respondent-Bank to highlight his contentions regarding Project Specific appointments, composite order of appointment and termination, automatic termination and contractual obligation, etc., and find that facts being distinguishable, dicta laid down in these judgments are not strictly applicable to cases in hand. Instead judgments in identical cases involving the Bank and its employees referred to in para 5 above, shall appropriately apply to these appeals.
10. Result of the aforementioned discussion is that the appeals shown at serial Nos.1 to 240 filed for regularization by the Godown Staff and the daily wage employees succeed and are accepted. The respondent-Bank is directed regularize the service 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 order 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.
11. As for appeals filed against orders of termination and seeking reinstatement, we find weight in the contention of the learned-counsel for I the respondent-Bank that the law of limitation should apply strictly. The reasons given in the applications for condonation of delay are that impugned orders of termination, verbal in most cases, being illegal and void, no limitation would run against them and further that the appellants are entitled to the benefits of earlier judgments as a result of which their juniors have been reinstated/regularized. We cannot accept this as sufficient reason to condone the delay, which in some cases runs into years, firstly because the appeals having been filed in rush, are not properly documented and secondly even void orders have to be represented against in time. Limitation was discussed and condoned in all earlier litigations. All the appellants in those cases had filed petitions before the competent Courts and their cases abated either in Labour Courts. NIRC or. The Labour Appellate Tribunal. Consequently those appeals were treated to be within time in terms of the law laid down in 1999 SCMR 197.
12. We have carefully examined the appeals filed against orders of termination and in the light of discussion hereinabove, find that:--
(a) Appeals Nos. 548 to 556, 558,865,1003 to 1006, 1013 to 1015, 1038, 1075, 1098, 1106, 1131 to 1133, 1166 to 1169, 1184, 1185, 1195, 1201, 1204, 1255 to 1262, 1424 to 1427, 1437 to 1453 and 1465(R)CW.2002 are time- barred and/or poorly documented. These are therefore, dismissed with no order as to costs.
(b) Appeals Nos.1025,1030,1089,1093 and 1099(R)CW/2002 are within time and reasonably documented. Their facts are briefly stated below:-- Appeal No,1025(R)CW/2002:---Appellant Fayyaz Chatta was appointed as temporary Godown Keeper on 31-7-1991 and continued to serve with short artificial breaks till his termination on 20-4- 2002. He filed this appeal on 25-6-2002 after filing a departmental appeal.
Appeal No,1030(R)CW/2002:---Appellant Qamar Anwar Hussain was appointed as temporary Godown Keeper on 30-10-1990 and continued to perform his duties with usual short artificial breaks till his termination on 24-4-2002. The appeal has been filed on 25-4-2002 after filing departmental appeal on 3-5-2002.
Appeal No,1089(R)CW/2002.---Appellant Mansab Ali, was appointed on 14-1-1993 as temporary Godown Chowkidar for a period of less than six months. He continued to perform his duties eversince with short artificial breaks till his services were terminated on 24-6-2002. He filed the instant appeal on 6-7-2002 without filing any departmental appeal for the reason that rules of the respondent-Bank are non-statutory. A letter dated 27-5-2002 of the Manager National Bank of Pakistan, Warburton Branch available on record shows that the appellant had put in nine years and six months of service.
Appeal No,1093(R)/CW/2002.---Appellant Aamar Abbas was appointed as temporary Godown Chowkidar, NBP Civil Lines, Sheikhupura on 1-1-1989 and continued to perform his duties with usual short and artificial breaks till his services were terminated on 18-6-2002.
Appeal No,1099(R)CW/2002.---Appellant Shahzad Ahmed Bhatti, ex-temporary Godown Keeper of NBP, Civil Lines, Sheikhupura, was appointed on 23-9-1998 and continued to perform his duties with short artificial breaks till 18-6-2002 when his services were terminated.
' Judgment of the Hon'ble Supreme Court of Pakistan in C.P.No,849 of 1993 is fully applicable to all the five above mentioned appeals which are accepted, impugned orders are set aside and appellants are reinstated in service. The respondent-Bank is directed to regularize their services in accordance with the criterion laid down for regularization in para 10 supra.
(c) Appeals Nos.861,862,1041 and 1126(R)CW/2002 have been filed against orders of termination passed in consequence of the dismissal of petitions pending before NIRC. Brief facts of each appeal are.
Appeal Nos .861 and 862(R)CW/2002 --have been filed respectively by Jan Muhammad Saqi, ex- Godown Chowkidar, appointed on 10-10-1978 and Javed Akhtar, ex-Godown Keeper, appointed on 1-12-1979.
' They filed Petitions for regularization in service before NIRC in 1996. Petitions were allowed by a Single Bench of NIRC vide a common order dated 10-7-1997. The respondent-Bank filed an appeal before the Full bench of NIRC and the case was remanded back to the single Bench for fresh decision. 'Finally, Senior Member, NIRC vide judgment dated 26-4-2002 dismissed the petition for the reason, among others, that the Petitioner were not in the service of the Bank when they filed Petitions for regularization. Resultantly the Bank terminated their services vide separate orders dated 30-4-2002. They filed appeals before this Tribunal on 8-6-2002 after filing departmental appeals. It has been stated by them that their appeals for regularization are pending before the Lahore Bench of this Tribunal.
Appeal No,1041(R)CW/2002.---Appellant Aftab Ahmed was appointed as temporary Godown Keeper on 15-11-1983. His services were terminated on 7-5-1992 against which his petition before NIRC was accepted by the Single Bench on 10-7-1995. The Bank went in appeal before the full Bench and the case was remanded back to Single Bench for Fresh decision vide order dated 17-4- 1998. Finally, the Single Bench vide order dated 8-2-2002 dismissed the petition where upon the Bank terminated his services vide order dated 20-2-2002. He filed the instant appeal on 29-4-2002 after his departmental appeal dated 7-3-2002 remained unresponded.
Appeal No,1126(R)CW/2002.---Appellant Ayaz Mahmood was appointed as Typist on daily wages with effect from 27-5-1992. His services were terminated on 28-6-1998. He filed a petition before NIRC which was allowed. The Bank filed an appeal before the Full Bench of NIRC which as stated by the appellant, finally set aside the order of the Single Bench on grounds of jurisdiction vide order dated 1-7-2002. Resultantly, services of the appellant were terminated by the Bank on 2-7-2002. He filed the instant appeal on 6-7-2002.
' The peculiar nature of the abovementioned four appeals needs examination as to whether they are maintainable with reference to the law of limitation. Section 2-A was inserted in the Service Tribunals Act 1973 on 10-6-1997. It brought about a change of forum for the appellants and cases pending before other forums automatically abated. It is correct that for some time there was confusion about the retrospective applicability of section 2-A, but the same was removed by the Supreme Court of Pakistan in their judgments reported in 1999 SCMR 92 (Muhammad Afzal v. KESC) and 1999 SCMR 197 (Syed Aftab Ahmed v. KESC). It was incumbent thereafter on the appellants in Appeals Nos.861,862 and 1041(R)CW/2002 to resort to Service Tribunal within reasonable time rather than wait for decision of NIRC. There was no justification at all for appellant in Appeal No,1126(R)CW/2002 to resort to NIRC in June, 1998 and continue litigating before an incompetent forum. It is also a fact that while the appellants remained litigating before NIRC, a number of their colleagues had resorted to the Service Tribunal winning relief for themselves. In this view of the matter, we are of the opinion that the appellants exhibited negligence and lethargy and their appeals are hopelessly time-barred. In this connection, we derive support from the latest pronouncement of the apex court in Civil Petition No,3073 of 2001 (approved for reporting) filed by Zafar Iqbal, against judgment of this Tribunal dated 15-8-2001 in Appeal No,1400(R) of 1999. Zafar Iqbal's Writ Petition before the Lahore High Court was dismissed for want of jurisdiction on 19-4- 1999 whereafter he filed appeal before this Tribunal. The Tribunal dismissed the appeal as time- barred for the reason that he had spent time litigating before a wrong forum. While dismissing his Civil Petition No,3073 of 2001 the apex court, after exhaustive discussion of section 2-A and its effect, held:-- "Whenever the abatement is automatic, no party to a litigation before any forum other than the newly-created one is supposed to wait for the final decision of or any instruction by the forum where the cause is already pending. The petitioner without waiting for the decision of the High Court or any instructions therefrom ought to have resorted to the Service Tribunal. In this view of the matter his appeal before the Tribunal was hopelessly time-barred and rightly declared so."
' Appeals Nos.861,862 and 1041 and 1126 (R)CW/2002 are therefore, dismissed as time-barred.
(d) Appeals Nos.1230,1231 and 1232 have been filed in time against orders of termination dated 17-7- 2002, 14-6-2002 and 18-7-2002 respectively passed after the appellants had filed Appeals Nos.1116,1107 and 1118(R)CW/2002 respectively before this Tribunal for regularization of their services.
Terminations have been ordered despite clear direction to the respondent-Bank not to pass any adverse orders against the appellants. These apppals being in time are accepted on merit. Orders dated 17-7-2002, 14-6-2002 and 18-7-2002 passed in violation of the direction of the Tribunal are set aside. The appellants are reinstated in service. Their Appeals Nos.1116,1107 and 1118(R)CW/2002 for regularization also stand accepted in terms of para 10 supra.
13. Summing up the judgment:--
(a) Appeal listed as Regularization cases are accepted in terms set out in para 10 supra.
(b) Appeals listed as Termination cases are disposed of in terms of paral2(a),(b),(c) and (d) supra.
14. No orders as to costs. Parties be informed.