' MUHAMMAD SHABBIR JAMAL (MEMBER).--- The brief facts of the case are that 66 petitioners have filed the instant petition under section 49(4)(e) of I.R.O., 2002 accompanied by stay application under Regulation 32(2) of N.I.R.C. (Procedure and Functions) Regulations, 1973. It is contended that the petitioners 1 to 56 are active members of trade Union which has also been made petitioner at Serial No,67. It is further contended that petitioners 1 to 65 having valid Driving Licences in their possession have been assigned the duty of drivers by order in writing issued by the respondent- Establishment and as such they have been driving official vehicles of the respondent- Establishment to their entire satisfaction. It is also contended that petitioner No,66 namely Anab Gul though is a driver has been acting as Foreman for a long time. It is also contended that 65 petitioners are working against the regular vacancies of drivers and one against the regular vacancy of Foreman. Petitioners being aggrieved of the advertisement in the press of various vacancies including those of drivers and foremen apprehended that they would be withdrawn from posts of drivers and the foreman after fresh recruitments are made. The then learned Member after preliminary hearing of the petition issued the status quo order on 27-1-2004 insofar as recruitments of outsiders against the posts claimed to have been held by the petitioners. This status quo order was subsequently recalled on 29-4-2004 but the management was directed not to pass any adverse orders against the petitioner's employment till the disposal of preliminary objections raised by the respondents.
2. During the course of proceedings it has been contended that 66 petitioners can be adjusted against the 66 available vacancies against whom they are working, out of 135 vacancies that have been advertised because they have precedence over any other candidates from outside.
3. While this case was being argued parties came up with the request for adjournment on the ground that there is likelihood of mutual settlement of the matter outside the Court. It was also brought to the notice of the Court that the management had moved the Government to relax the qualification of drivers so as to make adjustment of the petitioners against the vacancies of drivers/foremen on which they had been performing duties. The case in this view of matter remained pending at the instance of both the parties for a long time. Mr. Farhat Kamal Pasha, General Secretary, C.D.A. Employees Union also appeared before this Bench during the course of proceedings and apprised the Court that the meeting in that regard was held in the office chamber of Member (Administration) C.D.A. Where Deputy Director (Admn.) and Director (Personnel) were also present to consider the cases of these petitioners favourably outside the Court. Earlier on 6-11-2004 a meeting was also held in the office chamber of this Bench which was attended by Director C.D.A. Mr. Shahid Murtaza Bukhari and some of the petitioners to consider the possibility to redress the grievance of the petitioners outside the Court. The Director C.D.A. Had committed to take up the matter with the authority to resolve the issue. Subsequently, on 1-12-2004 the learned counsel for the respondents informed that there was no progress with regard to resolving the matter amicably and, therefore, the case of the petitioners could be proceeded with and decided on merit.
4. While the case was kept pending either on the desire of the petitioners or the respondents on the ground that it would be settled mutually outside the Court the petitioners, therefore, continued to be hopeful of favourable inclination of the respondent-Establishment to make a decision to redress the grievance of the petitioners for which it was brought to the notice of the Court that a reference had been made to the concerned Ministry for relaxation of qualification of drivers etc. After the qualification for recruitment of drivers was amended by substituting the qualification of Matriculation by the qualification for Middle by a notification issued by the concerned Ministry, respondent's counsel recorded his statement that he had been given instructions to inform the Court that all the posts of direct quota would be advertised which also include posts of drivers. He further stated that the petitioners holding the requisite qualification would hence forth apply in response to the said advertisement and after receipt of their applications the matter of their appointment as drivers would be considered. The learned counsel however, advised that it would be beneficial if the petitioners approached the management in the light of the notification in question to settle the matter bilaterally outside the Court. The learned counsel of the opposite party also agreed to the proposal so made by the learned counsel of the other party.
Subsequently, after having been disappointed in having the matter bilaterally resolved, the petitioners requested the Court, to proceed further in the case to adjudicate their petition.
5. In the meantime the learned counsel for the respondent had filed an application on 27-6-2006 for dismissal of the instant petition on the ground that the qualification had been reduced for initial appointments and posts were to be advertise in accordance with Provincial and Regional quota. It was contended in the application that since the petitioners themselves relied on the said notification, their petition has become infructuous and they would have to wait for advertisement of the posts in question for making applications. This application was resisted by the learned counsel of the opposite party by filing reply to the same along with written arguments. The learned counsel for the respondents also committed to file written arguments and also to orally argue the case.
6. The reply statement in this case was filed by the respondents. Written arguments were filed by the learned counsel for the respondent. The learned counsel for the petitioners re-argued the matter and submitted further development in the light of certain recent judgments.
7. In the written statement the respondents raised the following preliminary objections:--
(a) The respondent-Establishment is completely governed by Federal Government and so is covered under section 2-A and in that regard it is F.S.T. Not N.I.R.C. That has the jurisdiction to deal with the case.
(b) The petition is not maintainable under law as well as on facts.
(c) The petitioners belong to categories of Cleaners, Malies, Drivers, Naib Qasids, Foremen and hence cannot join together in this petition which suffers from misjoinder of parties. The petition as well as the stay application is not maintainable and so the N.I.R.C. Has no jurisdiction to deal with the case.
(d) The petitioners have failed to make out a case of discrimination under section 63 of I.R.O., 2002.
(e) The posts of drivers can only be recruited through initial appointment and that under the law and advertisement for filling of the posts through direct recruitment has to be made. In this regard reliance was placed on 1996 SCMR 1349.
(f) There is no provision in the law or in the relevant regulation of C.D.A. That Malies, Naib Qasids, Cleaners be absorbed on regular footing unless C.B.A. Raises an industrial dispute in the matter.
(g) The drivers are being recruited through direct recruitment in the Directorate of Environment which is neither an industrial establishment nor a commercial establishment as defined under section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. The petitioners have therefore, no right of any kind to be absorbed as drivers from the posts of Cleaners, Malies, Naib Qasids etc.
8. The case was argued at length by the learned counsel of the petitioners as well as learned counsel for the respondents. It was contended by the learned counsel for the petitioners, Ch. M.
Sadiq Warriach that petitioners 1 to 5, 7 to 36, 39, 42, 43, 49 to 51, 53, 54 and 57 to 65 all joined the service of the respondents Cleaners, Malies (O.G.Ms.) and Naib Qasids. It is argued that all of them having valid HTV/LTV Licences were deputed as temporary drivers without any monetary benefits. It is contended that the length of their service as drivers ranges from 2 to 12 years. It is argued that the length of service as drivers is mentioned in the title of the petition against each petitioner. It is argued that letter of appointment of petitioners, 1, 3, 4, 5 and 7 is Annexure "B" and is at page 13. It is argued that the lette.Ts of appointment of other petitioners are also attached with the petition. It is also contended that petitioners Nos.6 and 66 joined the service of respondents drivers and in the interest of work of the authority they were asked to perform duties of foremen in Transport Section, Environment Directorate without any financial benefits since April, 1995. It is argued that the letter of appointment of petitioner No,6 is Annexure "VV" and is at page 85 of the file. It is further contended that the petitioners Nos.37, 38, 40, 41, 44 to 48, 52, 55 and 56 initially joined the service of the respondent as drivers in 1995 for a period of 89 days. It is argued that this system continued until 1999 when they were given regular appointments as Malies (O.G.Ms.). It is contended that they are continuing to perform the duties of drivers since 1995 till date. It is argued that the petitioners are doing duties without any break in service to the entire satisfaction of their superiors. It is argued that there is no complaint against any one of any type from any quarter. It is contended that the quality of their work is excellent. It is argued that all of them are eligible and are working against vacant posts. It is further argued that petitioner No,37, Abdul Sattar has been regularized vide office order Annexure "AAA" dated 7-8-2004 during the period the case is pending. It is also argued that all the remaining petitioners applied for regularization but have not been regularized. It is contended that this shows discrimination. It is argued that petitioner No,37 is driver on duty with the legal adviser of C.D.A. Vide office order, .Dated 18-1-2003 (Annexure "X"). The learned counsel for the petitioners has drawn attention to the following documents---
(a) Vide Annexure "AAA", dated 7-8-2004 during the pendency of the case and in violation of stay order total number of 42 persons have been appointed as drivers.
(b) Vide Annexure "BBB" dated 8-1-1997 it has been ordered by respondent that employee with 89 days service and thereafter break and again 89 days service will be regularized from the first day of his appointment without back-benefits but with seniority. This was because of settlement between the Union and respondents.
(c) Vide Annexure "CCC" dated 25-4-1989 cleaners were appointed as drivers like the petitioner and then regularized.
(d) Vide Annexure "DDD" dated 31-5-1981 cleaners were promoted as drivers.
(e) Vide Annexure "EEE" dated (sic) 1996 (this is after the Regulations of 1992) 17 Baildars, Helpers, Cleaners and Operators were appointed as drivers.
(f) Vide Annexure "FFF" dated 18-11-1999 (This is after the Regulations of 1992) 49 daily wage employees were regularized.
(g) Vide Annexure "GGG" dated 5-10-1995, Annexure "HHH" dated 18-10-1999, Annexure "III" dated 16- 11-1999 and Annexure "JJJ" dated 6-2-2002 petitioners Nos.37, 38, 40, 41, 44 to 48, 52, 55, 51 to 56 were appointed as drivers on 89 days basis. However, subsequently, regularized as Malies (OGMs).
They are continuing to work as drivers till today.
(h) Vide Annexure "KKK" dated December, 1995 (pages 15, 16 and 17) helpers were promoted as drivers. This negative the plea of respondents that the posts of drivers are to be filled by initial recruitment.
(i) Vide Annexure "LLL" shows that there are total number of 89 vehicles with the respondent.
Annexure "MMM" shows 29 drivers. a) Vide Annexure "NNN" dated (sic) 1996 Malies were appointed on daily wages that were subsequently regularized. Vide Annexure "PPP" dated 17-1-2005 the petitioners were directed to work overtime during Eid-ul-Azha.
9. The learned counsel has argued that facts stated in the above and documents attached to the petition as placed on record go to substantiate petitioners' contention that they have acquired the status of permanent workers on the jobs on which they have been temporarily appointed to do work without extra monitory benefits. In this regard the learned counsel relied on the judgment of Honourable Supreme Court in the reported case 2005 SCMR 100 Akram Bari v. National Bank of Pakistan. It has been argued that this case is- fully covered by the said judgment. The learned counsel has also relied on the judgment in the case reported as M.D, Sui Southern Gas v. Ghulam Abbas and others PLD 2003 SC 724 and in the case reported as 1995 PLC 539, and also relied on judgments in the report in cases cited below:--
(a) Government of Punjab v. PLAT 2002 SCMR 78,
(b) Province of Punjab .v. PLAT 2002 PLC 67, (c) Executive Engineer Pak P.W.D. v. Abdul Aziz and others PLD 1996 SC 610, (d) U.B.L. v. LAT 1997 PLC 446, (e) 2004 PLC 18, (f) 1983 PLC 1154,1997. PLC 388 and 2000 PLC 608.
10. In reply to the objection of the respondent-Establishment that C.D.A. Has been exempted from the application of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the learned counsel for the petitioners has argued that the learned counsel for the respondent has relied upon notification under section 8 of the Standing Orders Ordinance. It is contended that the very fact of this notification established that Standing Orders Ordinance applied to the C.D.A. But for the said notification. It is contended that the period of service before the notification is enough to show that the petitioners have become permanent. It is further argued that in the light of the foregoing provision of law in cases of Pak P.W.D. Reported as PLD 1996 SC 610, Lahore Development Authority reported as 2004 PLC 18 and other similar cases it has been established that Standing Orders Ordinance, 1968 applies to the said establishment and on the same analogy it would apply to the respondent-Establishment as well. In this regard the learned counsel for the petitioner has also relied on the following case-laws:--
(a) Punjab Small Industries Corporation v. Labour Appellate Tribunal 1988 SCMR 1725, (b) National Shipping Corporation's case 1975 PLC 1, (c) 1997 PLC 282 and 1990 PLC 689.
11. To the legal objection of the learned counsel for respondent that C.D.A. Is covered by section 2-A of the Service Tribunals Act, 1973, the learned counsel for the petitioners argued that the said section has been declared ultra vires of Articles 240 and 260 of the Constitution and therefore, his contention is devoid of any legal force. It is further argued that Service Tribunal will have jurisdiction only where order has been passed. It is contended that if there is no order and there is apprehension of unfair labour practice then the N.I.R.C. Alone has the jurisdiction. Reliance in this regard has been placed on the case-law reported as 2001 PLC 450, 2003 PLC 279, 1999 PLC 57 which is a Full Bench judgment of N.I.R.C. Unreported Full Bench judgment of N.I.R.C. Dated 21-7-1997 in Case No,12(61)/97-L in the case of Executive Engineer Pak P.W.D. v. Rizwan Ali. It argued that it is admitted position that petitioners are members of the Union whereas the fresh recruitees/ inductees will be those persons who are not members of any Union. It is also argued that the petitioners are eligible and fully competent to do the job on which new persons to be recruited. It is contended that the implication is that the respondent is refusing to employ or refuse to continue to employ the petitioners on the ground that petitioners are members or office-bearers of the Union and so are being discriminated for sole reason that the new employees will not be member of any Union. It is also contended that the recent amended recruitment rules further strengthens the case of the petitioners. It is further contended that the respondent lured the petitioners for appointment and got in writing during the pendency of the petition disowning the allegations of unfair labour practice. It is argued that this a deviation from the respondents' commitment to this commission and so confirms the existence of element of unfair labour practice. Attention in this regard was also drawn to Case No,4A(64) of 2004 in which this Bench on 17-1-2005 assumed the jurisdiction and overruled the objections of the employer with regard to N.I.R.C.'s jurisdiction in the case of Pakistan Sports Board.
12. While relying on the judgments reported as 1989 SCMR 353 and 1985 SCMR 1753, the learned counsel for the petitioners has argued that the documents placed on record in the instant case transpire that helpers, cleaners etc. Are promoted as drivers and operators. It is further argued that it has already been established that daily wage employees have also been regularized. It is further argued that petitioners who have signed the Vakalatnama are entitled to relief within the meaning of judgment passed in Case No,1995 PLC 554 in which the Honourable Supreme Court has held that the C.B.A. Union can espouse the cause of individuals. It is argued that in the present case the petitioners have made to work by the respondents in writing for higher posts on a salary for the lower posts. It is further argued that the law is that if a person is made to work for higher post he must be paid for the higher post. It is contended that the judgments on the point are 1994 PLC (SC)
411, 1993 PLC 660, 1995 PLC (C.S.) 1178 and 1996 PLC (C.S.) 572. It is argued that discrimination is established, length of service is established. It is also argued that on the strength of judgment reported as PLD 2003 SC 724. It is submitted that all the petitioners have already acquired the status of regular employees. It is further argued that unfair labour practice is also established. It has therefore, been prayed that the petition be accepted as prayed for and all the petitioners be absorbed/confirmed/appointed/regularized i,e, the petitioners 1 to 66 as Drivers/Foremen.
13. On the other hand the learned counsel for respondents has argued that the instant petition has been filed against the appointments meant for direct recruits after observing the codal formalities such as advertising the posts and laying down the required qualification It is further argued that the posts for appointments of drivers were advertised in the newspaper after ban for direct recruitment was lifted and accordingly the recruitment committees selected the candidates who appeared for test and interview. It is further argued that the C.D.A. Employees Union also sent application to consider them as candidates against the posts reserved for direct quota (100%) that had the requisite qualifications. It is also argued that the outsiders therefore, being unemployed Pakistani Nationals had a constitutional right to be employed and if selected by the Departmental Recruitment Committee had earned an absolute right to be appointed on the posts reserved for direct recruitments. It is contended that as such by any stretch of imagination their appointments cannot be termed as an act of unfair labour practice. It is further contended that the appointment of National Youth who are unemployed therefore, does not constitute an act of unfair labour practice. It is argued that the. Commission therefore, has no jurisdiction to deal with the case. It is argued that not a single trade Union activity has been cited by the petitioners. It is further argued that no documents have been placed on record to show that the persons named in the petition were members of the C.D.A. Employees Union. It is argued that application dated 27-5-2006 has been moved by the respondents on the grounds mentioned therein. It is also argued that the C.D.A.
Employees Union of which the General Secretary is Mr. Farhat Kamal Pasha had admitted before this Bench that by way of compromise and to settle the matter in dispute with the management, the qualifications of the posts of drivers and all other employees have been reduced. It is further argued that for driver's qualification from Matriculation to Middle have been notified in the official Gazette. It is further contended that the petition is liable to be dismissed. It is argued that the posts were re-advertised and the employees of the C.D.A. Availed this opportunity and were appointed after successful selection against direct recruitments. It is argued that the second advertisement has not been challenged which renders the petition infructuous. It is further argued that the Supreme Court in its judgment reported in 1996 SCMR 1349 has taken a serious view of appointing employees on the posts meant for direct recruitment without making any advertisement and have issued order to strictly follow the judgment. It is argued that in compliance the Ministries have issued orders and called upon their subordinate offices and establishments to terminate the services of employees appointed against the said order of Supreme Court. It is further argued that a circular dated 13-7-1998 was issued by the Cabinet Division and guidelines were given to reverse and rectify all such orders of appointment which were in contravention of the decision of Supreme Court published in 1996 SCMR 1349. It is contended that all the instances cited by the learned counsel for petitioners are hit by the judgment of the Supreme Court reported in 1996 SCMR 1349. It is further contended that no right under any law, settlement or award is available to the petitioners to comply with the provisions contained in section 50(3)(a) of the I.R.O., 2002. It is argued that the petition is liable to be dismissed. It is further argued that all tie citations relied upon by the learned counsel for the petitioners relate.To contravention of West Pakistan Standing Orders Ordinance, 1968 Which does not apply to Directorate of Environment of C.D.A. It is contended that the C.B.A.
Stands exempted from the operation of the Standing Orders Ordinance, 1968. It is argued that the petitioners have therefore, no right under any law, settlement or award. It is argued that the payer in the application for stay that the respondent be directed not to commit unfair labour practice and not to recruit fresh drivers and foremen in the light of their advertisement (Annexure "A" to the petition) is against the law. It is argued that this order has been recalled by the then learned Member himself by his order dated 29-4-2004. It is further argued that the petitioners cannot be absorbed, confirmed, appointed or regularized. It is argued that the petitioners cannot be regularized as prayed by them as there is no law which enables the petitioners to be regularized. It is contended that the petitioners even otherwise are regular employees as Malies. They are not drivers who are in Grade-V while Malies are in Grade-I. It is argued that there is no line of promotion for the Malies. It is further argued that the posts are reserved for 100% direct recruitments. It is contended that the judgment reported in 1996 SCMR 1349 is binding not only on the C.D.A. But the N.I.R.C. Has also to follow the law laid down by the apex Court. It is argued that there is no case of discrimination as the outsiders have been selected in accordance with the C.D.A. Regulation. It is contended that the provision of section 63(1)(c) dealing with discrimination are not attracted. It is further contended that if appointment of outsiders to fill in posts meant for direct recruitment is held to be an unfair labour practice then the Regulations dealing with the appointment will be rendered/repealed and no national youth can get any appointment anywhere in Pakistan. The learned counsel for the respondents relied on the documents produced by him as Annexure "AAA" to show that petitioners Abdul Sattar and Shakeel Ahmed have been appointed on the quota of direct recruitments, therefore, the allegations of unfair labour practice is not correct.
He has further argued that both these petitioners qualify the requirement of direct recruitment before their appointment and were selected on merits. It is contended that Directorate of Environment is not covered under the West Pakistan Standing Orders Ordinance, 1968. In order to substantiate his arguments the learned, counsel has relied upon judgments reported in 1974 PLC 194, 1979 SCMR 304, 1980 PLC 8001(sic), 1987 PLC 390, 1983 PLC 8508(sic) and 1996 PLC 103. It is further contended that the C.D.A. Employees Union which is a petitioner No,67 cannot espouse the cause of workers as the said Union has lost the referendum and is no more C.B.A. And new C.B.A.
C.D.A. Mazdoor Union has been elected, hence the petition is not maintainable except Khalid Hassan and A. Razzak. It is argued that the case of the petitioners is misjoinder as it pertains to different categories of workers. It is further argued that if the outsiders are not allowed to be appointed it would be in contravention of Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan. It is contended that filling of posts of 100% through direct recruitment through advertisement in newspapers cannot be termed as an act of unfair labour practice and these posts cannot be filled in from the employees of C.D.A. Who are members of the Union. It is further reiterated that the posts through direct recruitment are to be filled in on the basis . Of Provincial/Regional quota therefore, the appointment of petitioners mean as denying the above Government policy regarding the quotas. It is, therefore, prayed by the learned counsel for respondents that the petition be dismissed on the basis of above grounds.
14. I have carefully gone through the contents of the pleadings and documents placed on the case file and thoroughly considered the contentions and arguments of the parties. Before I give the judgment I am inclined to dispose of the preliminary objections in the first instance in the light of the arguments of the learned counsel of the parties. The question whether F.S.T. Or N.I.R.C. Has the jurisdiction to determine this petition in view of section 2A of the Federal Service Tribunals Act, 1973 is the question that no longer has force after the same has been declared by the Honourable Supreme Court of Pakistan as ultra vires of Articles 240 and 260 of the Constitution of Pakistan of 1973. Since unfair labour practice on the part of the employer has been alleged in this case it is N.I.R.C. That has the jurisdiction to deal with such cases under section 49(4)(e) read with section 50(3) of the Industrial Relations Ordinance, 2002. This question has already been determined by N.I.R.C. Itself as well as apex courts in number of cases, some of which have been cited by the learned counsel for the petitioners. I therefore, do not want to dilate much upon this issue. Now the question whether unfair labour practice has been committed or not is a question that requires probing and thinking in the light of the facts and the law involved in the case. I shall further deliberate on this matter later. The objection cited at paragraph 7(b) above is also linked to jurisdictional issue and in the absence of specific point does not require any further consideration.
Insofar as the objection of misjoinder of the parties is concerned it is more of a technical nature that should not come in the way of delivering substantial justice. The question of substantial justice this case is whether petitioners 1 to 66 are or not entitled to relief claimed for. This question will be decided in this judgment. Other objections are interrelated and will be determined in the light of the principles of law, justice and equity and relevant case-law.
15. After having been filed on 27-1-2004 this case was heard over a period of more than three years, during which number of adjournments were sought by the parties with a view to settling the matter bilaterally. In this effort hopes and disappointments were given by the respondent-Management to the petitioners as evident from narration of the above facts. I have no hesitation to hold that petitioners who were originally appointed in different categories were required to perform the duties of those posts for which they were not recruited. This was done merely for the reason that they had the ability to do so. For example Malies etc. Knew driving and could drive vehicles having valid and proper licences in their possession.. In this regard they were not given any benefit as nothing has been brought on record. Moreover contention of the petitioners in this respect has not been controverted by the respondent-Establishment. It therefore, appears to be an excessive act on the part of the management. I understand that such an act in no form is permissible within the meaning of the Constitution of Islamic Republic of Pakistan. In this regard I refer to the achievable objective of social and economic justice as enshrined in the preamble of the Constitution. In Article 3 thereof it has been clearly laid down that the State shall ensure the elimination of all forms of exploitation and the gradual elimination of fundamental principle, "from each according to his ability, to each according to his work". In this regard I rely on the principle of law laid down by the Honourable Supreme Court of Pakistan in their judgment reported as 2005 SCMR 100. It was held that in most of the cases of employees of N.B.P. 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 services benefits of regular employees. Also, the respondent-Managements moved to relax the qualifications of drivers by substituting the qualification of Middle for the qualifications of Matriculation is not appreciable, because this makes no difference for the employee who has been driving official vehicle for a pretty good time to the satisfaction of his employer regardless of his qualification. He therefore, has a genuine claim for his adjustment against the post of driver on the basis of his length of service and performance of duties as such.
Management's attempt in this connection in no manner has rendered any material help to the petitioners while this case was pending. Even if petitioners had applied for the same and were not selected, their contention does not lose the ground of their claim based on their long association with the establishment and performance of duties on a job which they were by administrative orders required to do. The argument of the learned counsel for respondent that C.D.A. Since has been exempted from the application of the Standing Orders Ordinance, petitioners cannot claim benefit thereunder has no force. I am of the view that the law laid down in that Ordinance is based on rationality, equitable treatment and fairplay. For example "Badli" is a workman who is appointed in the post of a permanent workman or probationer who is temporarily absent and acquires the status of a permanent workman if he has been employed for a continuous period of three months or for one hundred and eighty three days in a year. Even if the said Ordinance for the sake of arguments does not apply to C.D.A., the wisdom of the said law can be looked into in the interest of justice and equity. Otherwise the argument of the learned counsel for petitioners that the Standing Orders Ordinance applies to C.D.A. But for the exemption by notification in question and therefore, period of service before notification is enough to show that the petitioners have attained the status of permanent workmen is tenable in law. Reliance can also be placed for the claim of the petitioners on the case-law reported as U.B.L. v. Mukhtar Hussain 2007 PLC 138 and L.D.A. v.
Salahuddin 2004 PLC 18 which determined identical issues.
16. Now the question is whether the petitioners have suffered from the act of unfair labour based on trade Unionism including discrimination under section 63(1)(c) of I.R.O., 2002 as alleged by them. I feel that there is an overwhelming element of trade Unionism in C.D.A. As evident from the written statement (paragraph 7 above) filed by the respondent-Establishment which transpires that for such absorption C.B.A. Should raise industrial dispute. It means that the petitioners could not be considered for absorption/adjustments otherwise than by raising an industrial dispute. In other words their loyalty to the trade Union in power is must for settlement of such matter. This contention in view of their objection that C.B.A. Cannot espouse the cause of workers is self- contradictory. It has been held in Neelum Glass of Industries case No,4A(08) of 2003 by Honourable Chairman that C.B.A. Under section 33 of 2002 can espouse the cause of workers before N.I.R.C. That is through judicial process, of course if the allegation of unfair labour practice is there. The said stance of the management does not appear to be in the perspective of fair dealing. Nevertheless petitioners' contention regarding discrimination in the light of the documentary evidence placed on record on the other hand has force. To me employer-employees sound relations based on justice and fairplay are of paramount importance in the interest of the organization. I, therefore, agree to the petitioners' view point that they have precedence over direct recruits.
17. I feel that sufficient material is available on record and there is no need to go for further evidence to establish unfair labour practice as it would cause further delay in the final determination of this case which was instituted more than three years ago. I, therefore, in exercise of the powers vested in N.I.R.C. Under Regulation 34(1) of N.I.R.C. (Procedure and Functions)
Regulation, 1973 dispense with the examination and cross-examination.
18. In view of the above I allow the instant petition with direction to the respondent-Management to take measures to make adjustments of petitioners 1-35 and 37-66 (while petitioner 36 namely has been regularized vide order, dated 7-8-2007 during the pendency of the petition) against posts they have been working and also decide their cases of seniority, if any.