' JUSTICE (RETD.) TANVIR AHMED KHAN (CHAIRMAN).-- This appeal is directed against the order, dated 19-8-2002 passed by Mr. Riazul Hassan Alvi, learned Single Member, Lahore Bench of this Commission whereby he accepted the Grievance Petition bearing No,4A(491)/97-L filed by the respondent and held him entitled for the same treatment which has been given to his other colleagues whose case was at par with the respondent. In the said grievance petition which was filed by the respondent along with 23 others who subsequently, did not turn up. It was accepted only to the extent of respondent No,1. It was averred in the petition by respondent No,1 Tahir Rashid that he along with 23 others was appointed in the establishment of the appellants on different dates which have been fully detailed in the grievance petition itself and .By the nature of his duties he was a workman as defined under the IRO, since repealed and other labour laws. The respondent further contended that services of 63 employees of the appellant's establishment were terminated on 20-3-1994 inclusive of himself and other co-petitioners. However, 30 employees out of them filed a grievance petition before the Labour Court which suspended the aforesaid order with the result that the respondent remained in service and thereafter services of 20 employees out of 63 were confirmed by the appellants in view of an order of the Commission dated 17-7-1995. The respondent contended that his case is also at par with those employees whose services had since been confirmed. He further contended that the then Prime Minister of Pakistan ordered the confirmation of the services of the Cricket Team in the appellants' establishment but that order was not implemented. The respondent contended that he was employed on work charge basis and by operation of law he attained the status of a permanent employee having more than 10 years of service at his credit. This grievance petition was filed to get his status declared as a regular employee of the appellant-Authority.
2. The appellant contested the grievance petition inter alia on the grounds that the respondent and his co-petitioners were engaged as work charged employees and this kind of staff is employed against a certain work for a certain period not acceding 89 days and if their services are further required, they are again inducted against the running projects for another period of 89 days with a break of one day in the service without continuing the previous service and in this way they are treated fresh appointees as their services are with cuts and breaks for the different periods. It was conceded that the impugned order was suspended by the Labour Court and the judgment for regularization of work charge staff was passed by the honourable Chairman NIRC on 17-7-1995 in compliance of which the LDA management regularized the services of work charge and daily wages staff in accordance with the list produced by the CBA union before the NIRC which was also discussed in the judgment of the NIRC. It was contended that no written instruction was received from the Prime Minister of Pakistan regarding regularization of service of respondent whereas news reported in the press does not confer any right of regularization.
3. Both the parties adduced evidence in support of their respective claims. In order to prove his case, the respondent himself appeared and submitted his affidavit in evidence which is a narration and repetition of his grievance petition the contents of which have been fully detailed in the initial paragraphs of this judgment hence the same need not be repeated at this stage. It was additionally stated therein that Director-General LDA submitted a summary to the Chief Minister seeking approval for regularization of work charge staff having minimum length of service of three years which was approved by the Chief Minister of Punjab for doing the needful with sanction of 948 posts in various categories whereafter the Authority started the process of regularization as per criteria approved by the competent authority but the trade union namely employees Union started interference for accommodating the employees of their own choice and their office- bearers and thereby they moved a petition before this Commission and obtained a stay order on 15-10-1996 thereby putting the matter of regularization into jeopardy. It was also stated in the affidavit in evidence that more than 22 work charge employees 'who were terminated along with the appellant by means of order dated 20-3-1994 were also ordered to be regularized and they withdrew the cases from the Labour Court and thus the CBA Employees Union in connivance with 'the authorities of the appellants managed regularization of the employee of its choice in compliance with the order of honourable Chairman NIRC' dated 17-7-1995 and thus deprived the active members of the non-CBA Union belonging to the respondents. The matter was agitated before the authorities as number of posts still remained vacant due to non-availability of the persons mentioned in the list of 948. Thereupon a fresh list was to be prepared to rectify the wrong caused with the respondents and certain others. The CBA Employees Union again started undue interference for favouring . The employees of their choice and thus union of the respondent filed a writ petition in which the respondents were directed to prepare the list strictly on merits and without being influenced by any party. However, CBA Employees Union again obtained a stay order from the NIRC on 7-8-1996 and thus, the case of the respondent/deponent remained pending. He further deposed that his petition along with other petitions were finally disposed of by Mr. Bahadar Ali through order, dated 31-1-2000 but his case was dismissed for want of evidence whereas the other 22 employees who were also terminated vide impugned orders were ordered to be regularized by the learned Single Bench vide order, dated 31-1-2000 passed in Grievance Petition bearing No,4A(665)196-L. The respondent also stated that his case stood proved from the report of Additional Director-General LDA dated 30-5-1995.. The list of 948 employees were arranged ante- dated by the authorities being influenced by the CBA Employees Union while the employees of the non-CBA union like the respondents were deprived and discriminated. The respondent stated that he being senior most had been deprived of his due right only on account of his not being a member and supporter of the CBA Employees Union whereas many juniors to him of the choice of the said union were regularized into service. The respondent was cross-examined at length.
However, the appellant could not bring anything on record to shatter his testimony.
4. On behalf of the appellants Mr. Rashid Naeem was produced as R.W.1 but he simply stated that the respondent was not known to him as he was working on the development side of Katchi Abadi but he did not know anything about this case. Zaffaruddin Qureshi Admn. Officer Incharge work charge Cell appeared as R.W.2 and stated that the LDA had formed a cricket team in 1986 which was under the control of the Sports Officer. It was later on brought under the control of area Development Scheme. The witness stated that the team was appointed under work charge scheme for a period of 89 days which period was extended from time to time but there are breaks of one day at the time of every extension in service but subsequently, the services of the team members were terminated along with 63 others employees. The witness stated that there was a stay against the termination order issued by the Labour Court hence the salaries of the team members continued to be paid till December, 1999. The witness stated that in 1986 the respondent had not reported for duty and instead his service again started w,e,f, 17-9-1988 and in the order of NIRC regarding regularization of 948 employees there was a basic condition of fulfilling three years service whereas the respondent did not fulfill this condition. The witness further stated that all the cricket grounds under the administrative control of LDA were transferred to the PHA in December, 1997 and since there were no grounds available with the LDA all the members of the cricket team left the job themselves. Gul Riaz Rab A.D. Engineering Development Area Scheme appeared as R.W.3 and stated that the LDA cricket team came under his control in October, 1988 and he does not know anything beyond that. He stated that during his control over the team the players used to mark them present in the office of the ADS and they would remain present in the office till 11/12 noon and at about 2-30 p.m. To 3-00 p.m. They would go to the grounds. The witness stated that during their presence in the office, these players did not perform any duties. They did not work on any project under the witness and he himself would go to the grounds on alternate days for checking the presence of the players. With that the evidence concluded. On the basis of evidence on record the learned Senior Member Single Bench Mr. Riaz-ul-Hassan Alvi vide his judgment dated 9-8-2002 held that the respondent was not only discriminated but also victimized and therefore, he was also entitled for the same treatment which has been given to his other colleagues whose case was at par with him. In this way the learned Senior Member accepted the grievance petition to the extent of the respondent by means of order, dated 19-8-2002 which has been assailed by means of this appeal in which it has been contended that the learned Senior Member Lahore Bench has not appreciated the law and facts of the case correctly. We have heard the learned counsel for the parties at quite some length and have perused the record.
5. It is reflected from the evidence brought on record that respondent Tahir Rashid fully satisfies the criteria which was made to regularize the work charge employees. The services of his colleagues who were having similar length of service were regularized as far as back in the year 1996 while for the last more than one decade, the respondent is running from pillar to post to get the same relief.
The evidence from the appellants' side is contradictory in nature and does not inspire confidence. It is admitted by the appellants' side in evidence that the respondent Tahir Rashid was appointed on 4-8-1986. It is also reflected from the documents that the summary submitted to the Chief Minister for the regularization of employees was not against the members of cricket team. R.W. Gulraiz Rab AD Engineer appearing for the establishment had admitted in his evidence that he took over the control of cricket team in October, 1998. He has also not denied that prior to this date the players were deputed in different departments, projects and they performed their duties accordingly. He further stated that he only supervised the players to the extent of their game. The documents also reflect that the respondent was mainly discriminated for the reason that he did not support the Employees Union which was CBA at that time. The Honourable Supreme Court in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR at page 100 has held that it is the bounden duty of the State under Article 3 of the Constitution of Islamic Republic of Pakistan to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle from each according to his ability, to each according to his work.
Reference was also made to Article 38 of the Constitution of Islamic Republic of Pakistan which provided as under:-- ' Promotion of social and economic well-being of the people.-- The State shall---
(a) secure the well-being of the people, irrespective of sex, castes, creed of race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the banks of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenant;
(b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure;
(c) provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance of other main means.
(d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment;
(e) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan; and
(f) eliminate riba as early as possible.
' Though the aforementioned Article is not justiciable and is only guidelines for the functionaries to adhere to the same in the performance of their duties. However, the appellant-establishment has got no reason in the circumstances to ignore the same and treat the respondent Tahir Rashid in a discriminatory manner when he has given his whole youth in serving the cause of the appellant.
The superior Courts in number of cases have deprecated the practice of pick and choose in regularizing the services of their employees.
6. Reference is also made to Federation of Pakistan v. Raees Khan 1993 SCMR 609 and Abdul Majeed Sheikh v, Mushafay Ahmed PLD 1965 SC 208 wherein by referring to the case of National Bank of Pakistan v. Ghulam Rasul 2002 PLC (C.S.) 1639 the artificial break in the service was not appreciated. Learned counsel appearing for the appellants has failed to point out any illegality in the impugned order.
7. Resultantly for what has been discussed above, the appeal having no force is dismissed.