' JUSTICE (R.) ABDUL HAFEEZ CHEEMA, (CHAIRMAN).---Through this appeal the appellants have impugned the order dated 31-1-2000 passed by the learned Presiding Officer, Punjab Labour Court No,3, Lahore at Ferozewala whereby the grievance petition filed by the respondent was allowed with all back benefits.
2. The facts of the case briefly are that the respondent was appointed in the appellant Committee on 23-3-1997. He took over the charge of his assignment as a Water Clerk on 2-4-1997. His appointment was initially made against a permanent vacancy. He worked with the appellant w.e.f, 2-4-1997 till 1-9-1998. The appellants orally dispensed with the services of the respondent on 1-9- 1998. It was claimed by the respondent that by virtue of the length of his service he had attained permanent status in the department and as such the appellant had no right to oust him from service without adopting proper procedure as provided by the law.
3. The appellant however contested the grievance petition alleging that it was only a contractual appointment for 85 days which was extended for another 85 days after a long break as such no right had accrued to him to claim status of a regular employee of the appellant. It was further added that he had not issued grievance notice to the appellant as such he had no right to challenge his termination. It was also claimed that on the expiry of the contractual period, the respondent automatically ceased to remain in service as such he could not maintain the petition.
4. The learned Labour Court after recording evidence and hearing arguments allowed the grievance petition with the following observations:-- "6. The petitioner was removed from service under oral orders. Termination under oral order is not provided in any law. Exh.R-10 to Exh.R-19 show that the petitioner worked with the respondent organization in April, May, November, December 1997 and February, March, April, June, July and August, 1998. Mark-A shows that attendance was marked by the workers by putting their initials.
Mark-A shows that the petitioner's services were terminated as the same was purely temporary but in any law even a temporary service cannot be terminated without adopting proper procedure.
The principle of offer and acceptance is not applicable in such cases. None can be allowed to take undue benefit of the unemployment in the country. If the authority passes a whimsical order of 85 days against a post of permanent nature without assigning any reason that cannot be upheld.
Rights of the employees cannot be left at the mercy of the employer's whim. The petitioner was employed in service by the respondent organization against a post of permanent nature and was verbally dismissed from service. The act of the respondent was illegal. The petitioner is reinstated in service with all back benefits. The petition is accepted with costs. The file be consigned to the record room after completion within three days."
5. Arguments have been heard and record has been perused.
6. The main argument of the learned counsel for the appellants is that this was a contractual assignment and when the contract expired the respondent ceased to remain employee of the department. Secondly if at all he is considered to be a daily wager even then he was employed for 85 days only and when this period ended the respondent moved for his extension and he was again appointed for 85 days with a major break. So the respondent never attained status of a regular employee and worked for 90 days. Learned counsel further added that his application was recommended by the local MNA and as such his very appointment through political influence had no legal sanction behind.
7. On the other hand it was pointed out by the learned counsel for the respondent that in order to authenticate the particulars of the application the poor Villagers normally approach to their local Members of the Council or the Assembly Members to ensure that the credibility of the applicant and his particulars as such if a poor man gets service it cannot be claimed as an illegal appointment on account of the recommendation by the MNA.
8. Now let us examine as to whether the respondent was a permanent employee and can derive the benefits of conditions of services as laid down in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred as Ordinance, 1968). The Ordinance, 1968 spells out various classes of workmen as under:-- Classification of workmen (a workman shall be classified):--
(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)."
9. In this case the respondent had clearly served the department beyond nine months and as far the break is concerned that was only artificial with a view to frustrate the very provisions of law which has been declared by the Hon'ble Supreme Court of Pakistan in Ikram Bari v. National Bank of Pakistan (2005 SCM R 100) as a fraud on the statute.
10. It is noteworthy that after he succeeded in getting relief from the Labour Court he was allowed to rejoin and he is continuing in service since many years. Now therefore he shall be deemed to be a permanent employee of the appellant and the objection raised by the learned counsel for the appellants is overruled.
11. In this view of the matter, the judgment passed by the learned Labour Court is flawless and is based on proper reasoning which is hereby upheld and consequently the appeal fails and is hereby dismissed.
12. Learned counsel for the appellant at the end of arguments has pointed out that the department is in great financial constraints and is unable to pay huge back benefits as ordered by the learned Labour Court. This argument of the learned counsel for the appellant appears to carry sufficient weight. In this view of the matter it is ordered that instead of full back benefits the respondent shall be allowed 30% (thirty percent) back benefits as a regular employee.