' TASSADUQ HUSSAIN JILLANI, J.--- Respondent Muhammad Amir was appointed as Tube-Well Operator on Water Supply Scheme No,9 in March, 1993 in the Public Health Engineering Department, Sargodha Division, Sargodha. Pursuant to the promulgation of Punjab Local Government Ordinance, 2001, his services along with others were transferred to T.M.A., Bhalwal under the Devolution Plan, where he served and received his salary from the said Local Council for the period from 1-4-2002 to 30-6-2002. His salary was stopped then, which obliged him to approach the Provincial Ombudsman and on latter's direction the salary was released for the period in question (from 1-5-2003 to 31-8-2004). Thereafter, his salary was again stopped and when he moved the Provincial Ombudsman for the second time, he came to know on 15-8-2005 that his services had already been terminated w.e.f, 1-9-2004. This order was challenged before the Punjab Labour Court but the same was of no avail as the petition was dismissed on the ground of limitation vide order dated 27-2-2007 observing that as petitioner (respondent) was not paid salary w.e.f, 1-9-2004 he was aware of the order of termination but gave a time barred grievance notice on 10-9-2005 and the petition before the Labour Court filed on 28-9-2005 was also held to be time barred. This order of the Labour Court was, however, reversed by the learned High Court in Labour Appeal. No,77 of 2007 by holding that the petition was not time barred; that the termination order dated 1-9-2004 was brought to the notice of the respondent on 15-8-2005 and the procedure adopted by the departmental authority was violative of the Standing Orders Ordinance. He was directed to be reinstated and regularized within a month.
2. The learned counsel for the petitioner seeks leave on the ground that the learned High Court has fell in error in not appreciating that the Labour Court had no jurisdiction to proceed with the matter as respondent was not a workman; that even if he was a workman he filed a time barred petition which had rightly been dismissed by the Labour Court and the same has been reversed for reasons not sustainable in law. In support of the submissions made the learned counsel relied on the judgments of this Court reported as Abdul Razzaq v. Messrs Ihsan Sons Limited 1992 SCM R 505 and Executive Engineer, Central Civil Division Pak P.W.D. Quetta v. Abdul Aziz PLD 1996 SC 610.
3. Having heard petitioner's learned counsel at some length, we called Ch. Muhammad Ikram Zahid, Advocate Supreme Court, who was present in Court in connection with some other case to appear as Amicus Curiae. The case was adjourned for a day and the next day he made following submissions:---
(i) that the respondent was a workman within the meaning of Standing Orders Ordinance and therefore the petition before the Labour Court was competent. In support of the submission, he placed reliance on Muhammad Aslam v. Director General L.D.A. Lahore and others 2007 PLC 585, Messrs Service Sales Corporation (Pvt.) Ltd. v. Assistant Director, Field Operation Employees Old Age Benefits Institution 2001 SCM R 1599 and WPADA v. Muhammad Ashraf Naeem 1997 SCM R 1128;
(ii) that the order of termination of the respondent dated 1-2-2004 was not an order in the eyes of law as firstly because no written order was passed and secondly no reason whatsoever had been given for terminating the services of respondent and 20 others. Reliance was placed by the learned counsel on the judgment of this Court reported as Aslam Warraich v. Secretary Planning & Development Division 1991 SCM R 2330.
4. We have heard learned counsel for the petitioner as also the learned Amicus Curiae at some length, given anxious consideration to the submissions made and the precedent case law relied upon by both the learned counsel.
5. The crucial issue raised in this petition is with regard to the nature of respondent's employment.
Admittedly he was appointed as work-charge Tube-Well Operator on 21-3-1993 by Public Health Engineering Department, Sargodha Division, Sargodha in terms of the order as follows:--- "Ref:-- Your application dated Nil.
(2) You are hereby appointed as work charge operator against water supply scheme Chak No,9/ML Bhalwal temporarily on following terms and conditions:--
(1) If you join any Union or Association, your service shall be considered as suspended automatically with immediate effect without notice or assigning any reason thereof.
(2) The appointment shall not confer upon you any right of regular appointment/seniority pension gratuity compensation etc.
(3) No, TA/DA will be paid on joining and termination.
' If you accept the above terms and conditions you may report to the concerned S.D.O. For assignment of duty."
6. It is not disputed that respondent continuously served at the assigned work till 1981 when pursuant to the promulgation of Punjab Local Government 'Ordinance, 2001 his services along with some other employees were transferred to T.M.A, Bhalwal under the Devolution Plan, where he served on the said post and continued to draw his salary from the said Local Council for the period from 1-4-2002 to 30-6-2002. There was a break in salary which was rectified by the Provincial Ombudsman and it is not denied that his salary was released by the order of the Ombudsman for the period from 1-5-2003 to 31-8-2004.
' According to petitioner, respondent's service along with those of 20 other employees of Tehsil Municipal Administration, Bhalwal were terminated on 1-2-2004.
7. The case of the respondent had all along been that no written order was communicated to him and that he no longer remained a work charge employee to warrant termination order of the kind which was passed. In para-5 of the application under section 46 of the I.R.O., the respondent had taken a specific plea that he had, "attained the status of permanent employee after the expiry of nine months as laid down in Standing Order 1968 and the petitioner cannot be terminated without notice, enquiry, charge sheet and show cause notice." In reply OD the afore-referred para the petitioner-Municipal Administration did not controvert that the Standing Order 1968 was applicable. However, it tried to wriggle out of its mandate by submitting as follows:--- "That the Para No,5 of the petition is correct. The status of the petitioner was only of a work charge man, which cannot be given the status of a permanent employee. The petitioner had full opportunity to put his case before Tehsil Nazim Bhalwal 21 persons who were working as work charge men were also dismissed and their services were terminated. The rest of the para is not admitted correct."
8. Thus the stand taken by the petitioner before the Labour Court was that the respondent was only a work charge employee and could not assume the status of a permanent employee. It was never averred that respondent was employed against a temporary scheme and that said scheme was over. He served as work-charge Operator since March, 1993 initially in the Punjab Health Engineering Department on a Water Supply Scheme and then after promulgation of Punjab Local Government Ordinance, 2001, in the petitioner-Municipal Administration till 2004 without any break.
The order dated 1-2-2004 vide which services of 21 employees including that of respondent were terminated (which according to respondent he never received) makes an interesting reading. It is as under:--- "The following work charge employees working on various Rural Water Supply and Drainage Schemes are hereby terminated with effect from 1-9-2004. They are further directed to get fresh orders from the undersigned."
' It is significant for two reasons: first it does not say that the respondent was holding the post against a temporary project which had come to an end. Second, it states that the services of respondent were needed and he should get a fresh order from the petitioner department. By implication it reflects that the nature of job was permanent and services of the respondent were still required.
9. The fact that he was working on a work of permanent nature is borne out from other evidence as well. While appearing as P.W.1., Muhammad Amir had specifically said that he was working in service for the last 13 years. This part of his statement was neither challenged in cross examination nor it was suggested to him that he was employed against a temporary scheme. To determine the nature of respondent's assignment/work in the light of the facts given in the preceding paragraphs, we will have to refer to certain provisions of the Standing Orders Ordinance, section 2 of which defines 'Workman' as follows:--- Section 2(i) of the Standing Orders Ordinance.--- (i) "Workman means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
10. The expression "Establishment" has been defined in section 2 clause (0(v) of the Standing Orders Ordinance to mean, "the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry". The expression "Construction Industry" was defined in clause (bb) of section 2 of the Standing Orders Ordinance (which was added by Act (XXIII of 1972) which reads as under:--- "'Construction industry' means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundation of, any such work or structure."
' Besides the afore-mentioned provision, a reference may also be made to the schedule attached to the Standing Orders Ordinance, Order 1 of which, inter alia, defines 'permanent workman' and 'temporary'. It reads as follows:--- "(1). Classification of workmen.--- (a) Workmen shall be classified as---
(1) Permanent.
(2) Probationers.
(3) Badlis,
(4) Temporary
(5) Apprentices.
(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.
(c) A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months service therein. If a permanent employee is employed as. a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post.
(d) A `badli' is a workman who is appointed in the post of a permanent workman or probationer, who is temporarily absent.
(e) A 'temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months.
(f) An 'apprentice' is a person who is an apprentice within the meaning of the Apprenticeship Ordinance, 1962 (LVI of 1962)."
11. The term 'Construction Industry' and the import of Standing Orders Ordinance (ibid) came up for consideration before this Court in relation to the question mooted whether employees like `Baildar' employed by P.W.D. Department of the Federal Government, on work charge basis, could be classified as workmen within the meaning of the West Pakistan Standing Orders Ordinance and the Court while holding that they were workmen observed as follows:--- "The above definition of the term "construction industry" appears to be very wide. It would include the work of the appellant-department. However, the above definition is to be read with sub-clause
(v) of clause (f) which defines the term "industrial establishment" and which has been referred to hereinabove. But, in order to attract the application of the above sub-clause (v), the establishment should be of a person who, directly or indirectly, employs workmen in connection with construction industry. The work "a person" has not been defined. It can have two meanings:
(i) a human being; and
(ii) a legal person.
' If I were to hold that it will have the latter meaning, in that event, the appellant-department will be covered by the above definition of "industrial establishment". Since the provisions of the Standing Orders Ordinance are beneficial provisions for the working class, the meaning which would advance the object for which the above statute was enacted, be. Preferred. I am, therefore, inclined to hold that the words "a person" used in sub-clause (v) of clause (f) of section 2 of the Standing Orders Ordinance will include a legal person. In this view of the matter, the provisions of the above statute are available to the respondents. The Courts below have, therefore, rightly held that upon expiry of the period of nine months as provided in clause (b) of paragraph 1 of the schedule, the respondents had become permanent workmen."
12. On the question whether `Baildars' in the said case could invoke provisions of Industrial Relations Ordinance, the Court held that since the nature of job being performed by those employees did not have any nexus with the sovereign functions of the State, the employees of such nature could not be excluded from the purview of the said Ordinance. It held as follows:-- "The work of construction or maintenance of buildings, which is performed by the respondents, does not have nexus with the sovereign functions of the State, and therefore, they cannot be described as persons employed in the administration of the State. The above work can be carried out through contractors. The respondents have nothing to do with the running of the Government they may be said to be contributing towards facilitating the functioning of the Government. I am, therefore, of the view that the respondents are not employed in the administration of the State and, hence, the above clause (b) of subsection (3) of section 1 of the I.R.O. Is not attracted to. It must, therefore, follow that the provisions of the I.R.O. Could have been invoked by the respondents. Since the respondents' grievance was that their services were terminated in spite of the . Fact that they were permanent employees in view of above paragraph i(b) of the Schedule to the Standing Orders Ordinance in violation of Standing Order No,12, they could have filed the applications under section 25-A of the I.R.O."
13. In the instant case, the work being performed by the respondent as Tube-Well Operator was connected with `water work', 'well' within the meaning of construction industry as defined in section 2(bb) of the Standing Orders Ordinance. There is nothing in evidence to indicate that he was being paid salary only for those days of the week during which he worked. He served initially in the Public Health Engineering Department from March, 1993 to 2001 when his services were transferred to T.M.A. Bhalwal where he continued to work till 15-8-2005 when he was informed that his services had been terminated w.e.f, 1-9-2004. In the face of this evidence on record, it is manifest that he was engaged on a work of permanent nature within the meaning of clause (b) of paragraph (1) of the Schedule to the Standing Orders Ordinance as reproduced in para-10 above.
14. Since the respondent was a permanent workman in terms of the afore-mentioned provisions of the Ordinance, he could not have been summarily dismissed and that too without a written order.
The procedure adopted was violative of Order 12 of the Standing Orders Ordinance which, inter alia, mandates as under:-- "12. Termination of Employment.---(1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice.
(2) No temporary workman, whether monthly-rated, weekly rated, daily-rated or piece-rated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord.
(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. Idcase a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of] section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
15. For what has been discussed above, the impugned judgment is unexceptionable. Finding no merit in the petition, it is dismissed and leave refused.