ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- National Bank has assailed the judgment, dated 20-2-2010 passed by the learned Presiding Officer, Punjab Labour Court No,9, Multan whereby the grievance petition filed by Zahid Hussain (hereinafter described as "respondent") was accepted and he was ordered to be reinstated without back-benefits. On the other hand Zahid Hussain has challenged the judgment so far as it denies the back-benefits to him. In view of this position both the appeals are being disposed of through this single judgment.
2. The facts of the case briefly are that the respondent who happens to be a Graduate was appointed on 22-6-1994 as Godown Keeper. To look after the goods pledged with the bank. He continued to perform his duties upto his order of termination dated 26-11-199& without any break although the appellant bank after every six months has shown to have issued a fresh appointment order, presumably to ensure that the respondent does not claim permanent/regular status. It was the claim of the respondent that he was the active member of Labour Union and his union activities were disliked by the administration. Smelling that the bank authorities due to their displeasure are likely to victimize him he approached the NIRC. However, the bank authorities terminated his services on 26-11-1998 without any show-cause notice, personal hearing or any enquiry arbitrarily.
3. The respondent filed an appeal against the order which too was rejected on 14-5-199. He was then obliged to approach the Federal Service Tribunal (FST) where his appeal was accepted with a direction to the appellant bank to decide the departmental appeal afresh. The bank however stuck to their earlier decision and again rejected the appeal. This led him to approach FST once again.
This time his appeal was hit by the decision of case of Mubeen-us-Salam PLD 2006 SC 602. The respondent, therefore, filed a grievance petition in the Labour Court within the stipulated period.
4. The petition was resisted by the bank on numerous grounds. It was alleged that the respondent was not a workman and as such had no locus standi to approach the Labour Court which did not possess jurisdiction in the matter; that he was a temporary employee and his pay was being paid from the loanee/borrower account as such he had no locus standi to challenge the termination through the Labour Court. In view of the varying versions of the parties, the Labour- Court recorded their evidence.
5. The respondent appeared as P.W.1 and supported his petition' claiming that throughout his service there was no break and if any break had been shown by the appellant bank that was fictitious and artificial and was set up to prevent the respondent from claiming regular status. It is noteworthy that this part of the statement had not been seriously challenged in cross- examination. From the bank side Mr. Yasin Mateen, Manager, NBP, Chorhatta Branch D.G. Khan appeared as R.W.1 who deposed that the respondent was employed on temporary basis and throughout his service he remained temporary as there had been break of 15 days or so in each successive order.
6. Arguments have been heard and record has been perused with the assistance of the learned counsel for the parties.
7. The breaks shown by the appellant bank in issuing periodical orders were clearly designed to deny permanent status to the employee. This has never been appreciated by the superior courts.
This practice however, has been held by the honourable Supreme C6urt amounting to exploitation which obliges a poor job seeker to accept such terms-at the pains of losing his job. It was also declared that such-like practices on the part of employers tantamounts to fraud on the statute.
8. All the objections and criticisms by the bank have been squarely met by the judgment of the honourable Supreme Court in Ikram Bari and others v. NBP reported as 2005 SCM R 100. It would be advantageous to quote the exact wordings of their Lordships which shortly read:--- "An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, 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 service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principles of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public-atLarge PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept contractual terms at the pains of losing his job."
8-A. The learned Labour Court has dealt with all the points raised by the parties quite aptly in accordance with law and has properly appreciated and analyzed the evidence led by the parties and has evaluated their arguments in a befitting manner. The contentions of the appellant bank in the circumstances of the case were devoid of any merit as such I find no reason to differ with the findings of the Labour Court.
9. No other point was argued by the learned counsel for the parties.
10. The appellant was a permanent employee due to length of his service and his ouster was arbitrary, unjust without lawful authority and misconceived. I, therefore, find no merit in the appeal of the bank which is hereby dismissed and the order of the learned Labour Court is maintained as the reinstatement of the appellant is concerned.
11. As regards the cross-appeal of Zahid Hussain respondent for back-benefits, he should feel content with the order/judgment of the learned Labour Court wherein he has been declared permanent employee entitled to seniority, promotion etc. From the date of his ' initial appointment i.e, 22-6-1994. He has himself stated that during the interregnum he has been operating Public Call Office (PCO) for earning his livelihood as such the order passed by the learned Labour Court for not granting him back-benefits appears to be fair and just and the same is upheld. Consequently his appeal too is dismissed.