' ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- The captioned appeals impugn the order dated 4-8-1995 of Punjab Labour Court No,5, Sargodha whereby the grievance petitions filed by the appellants were dismissed by a consolidated order dated 4-9-1995.
2. The facts of the cases briefly are that Qaiser Saleem and eleven others basically low paid employees of PHE Division Jhang, were recruited as work charged employees in connection with maintenance of rural water supply/drainage/sewerage scheme whereas one Mr. Ljaz Ali Shah was recruited by the Zila Council in the year 1989. The scheme was initially that of the PHE Department but in the year 1986 it was entrusted to Zila Council Jhang along .With the services of the appellants Qaiser Saleem and eleven others. Afterwards the scheme was taken back by the PHE Department, along with the twelve employees and Mr. Ejaz Ali Shah. All the employees had been regularized by the Zila Council Jhang through a resolution dated 1-7-1987.Ejaz Ali Shah was however confirmed subsequently. Both the cases filed by Qaiser Saleem and 11 others and Ejaz Ali Shah v. PHE related to the same subject as such the learned Labour Court decided both cases by means of a consolidated judgment. However, surprisingly PHE Department on resuming the charge of the scheme issued notifications R-1 and R-2 whereby the services of the employees were de- regularized and they were treated as "work charged employees".
3. This abrupt and arbitrary change was assailed by the respondents claiming inter alia that their services were regularized by the Zila Council due to their satisfactory performance during the mandatory period and they had attained the status of permanent employees against permanent posts- as such PHE had no mandate in law to de-regularize their services without undertaking the procedure envisaged under section 12(3) of the Standing Orders Ordinance, 1968. This was in fact a .Major penalty and was imposed on the respondents without issuance of any show cause notice and without conducting any enquiry which obviously offended the principles of natural justice and also ignored the effect of Principle of locus poenitentiae because the employees had been serving without any break or blemish. As such they had attained permanent status by afflux of time.
4. The petitions were resisted by the department raising a number of preliminary objections that no cause of action had accrued to the appellants and they were temporary employees and could riot have been considered as workmen. The petitions were, therefore, not maintainable and were liable to be rejected as they were work charged employees only and their services were temporary.
5. It was added that Provincial Government was a necessary party as such the grievance petitions were not proceedable in the absence of the Provincial Government. Even otherwise the petitioners being work charged were not eligible to be confirmed as regular employees and their services could have been dispensed with without any show-cause notice or enquiry.
6. Evidence of parties was recorded. The petitioners appeared as their own witnesses as PW-1 and produced documents Exh.P-1 to P-20 whereas the respondent examined RW-1 the Executive Engineer PHE Department who produced documents Exhs.R-1 to R-4. Ejaz Ali Shah produced documents Exhs.P-1 to P-5.
7. After hearing the parties, the learned Labour Court dismissed the grievance petitions holding that the court had no jurisdiction to entertain and disposed of the petition.
8. Learned counsel for the appellants reiterated their stance taken in the grievance petitions that they had attained regular status by serving for more than statutory period as such they attained the status of permanent employees as the posts were undoubtedly of permanent nature. As such the impugned notifications were coram non judice. As for the non-impleadment of the Provincial Government it was submitted that the employer of all the respondents was the Executive Engineer, PHE Department as such, the objection was misconceived.
9. Conversely the respondent departments' plea was that they were employed as work charged employees and could have been relieved of their duties as such their services were no longer required.
10. Arguments have been heard. Record perused.
11. The appellants were employed initially by the PHE under a regular scheme. Sometime later the PHE Department transferred the scheme along with the services of the employees to District Council Jhang as such on the reversion of the scheme to the PHE, they had no right whatsoever to tinker with the orders of regularization passed by the District Council Jhang as it was done by means of a resolution of the District Council. The regularization appeared to be quite in keeping with the legal requirements and had been acted upon for almost a period of five years. The principle of locus poenitentiae was therefore fully applicable and no authority was vested in the PHE to withdraw or cancel the order of regularization which was duly passed by their predecessor and the same stood acted upon. Reference in this behalf can be made to a judgment of the Hon'ble Supreme Court wherein in exactly similar circumstances it was ruled:--- "13. In the instant case the work being performed by the respondent as Tubewell 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 aforementioned 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 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. In case 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." (2009 SCMR 1161) .
12. In another case viz; District Education Officer (M) (Elementary) Bahawalnagar and others versus Hafiz Muhammad Alam who was removed from service without show cause notice on the ground that his appointment was not proper. The Hon'ble Supreme Court was pleased to approve:--- "The respondent before his appointment, admittedly, qualified the requisite written test and interview conducted by the Recruitment Committee duly constituted by Government. He was given the charge of his assignment on 6-2-1997. This being so, he continued to perform his official duties.
It was on 26-3-1997 when an information was conveyed to him that his appointment was not made in accordance with the rules and as such he could not be allowed to work in pursuance of the direction of competent Authority vide letter dated 17-2-1991. His appeal was however, accepted by the Punjab Service Tribunal vide impugned decision dated 27-1-1999. In the result, he was reinstated in service with back benefits." (PLD 2000 SC 50)
' To uphold the following findings of the Punjab Services Tribunal recorded on 27-1-1999, the Hon'ble Supreme Court observed:--- "From the above discussion it appears that neither the appellant was associated with any such inquiry, nor was a party to the writ petition in the High Court wherein a direction for scrutiny of the appointment made by Mr. Goraya was made nor there was any allegation of his justifying the restraint order passed against the appellant. Even otherwise, the verbal order is no order in the eyes of law. Reference in this connection may be made to PLD 1979 Lahore 699 and PLD 1998 Kar.
180."
13. According to section 1 of the Schedule to Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 following classification of the employees. Have been made 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)"
14. In this view of the matter the order passed by the PHE authorities reverting the appellants to the position of work charged employees from the permanent employees was not sustainable in law.
15. As for the non-impleadment of Government of the Punjab it is noteworthy that the Executive Engineer himself is the employer who can be sued for the relief. There was no need to implead the Government of the Punjab. The appellants were clearly workmen and after serving for the mandatory period they had attained the status of permanent workmen against the permanent posts. The Labour Court had every jurisdiction to give them the desired relief. The learned Labour Court therefore appears to have fallen in error by refusing relief to them.
16. In Ikram Bari v. National Bank of Pakistan, the Hon'ble Supreme Court held as under:- "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 meager 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 principle 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 equitably 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 make., it obligatory upon the State 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. 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 at Large 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."
17. In this view of the matter, the appeals are, therefore, accepted with back benefits and the impugned order is hereby set aside leaving the parties to bear their own costs.