ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- All the captioned three appeals are directed against the orders dated 23-7-2010 passed by the learned Presiding Officer, Punjab Labour Court No,5 Sargodha whereby the grievance petitions filed by the respondent employees were accepted with a direction to the appellants to pay all the arrears of the salaries to them as a regular employees of the government. As these appeals involve identical questions of law and facts, they are being disposed of by means of this consolidated single judgment.
2. The facts leading to these appeals briefly are that the respondents were low paid employees and were appointed by the appellant department as work charged Cook and work charged Electricians against permanent posts. The respondents claimed that they continued to serve the department without any break or blemish and were being paid their salaries regularly. Their appointments range from the years 1993, 2001 and 2006. The respondents were making requests to the appellant department for regularization of their services but the appellant department was not paying any heed to their legitimate right for regularization: Consequently, after serving the department with grievance notices, the respondents were obliged to approach the learned Labour Court No,5 Sargodha. The respondents, inter-alia, claimed that they were doing 'their duties with due care, caution, honesty and diligence; that by the nature of their job they were workmen according to the Labour Laws as visualized in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and they had attained the status of permanent workmen by passage of time; that their colleagues were regularized according to the decisions of the courts but they were not being given similar treatment which was a discrimination on the part of the appellant department.
3. The appellant department however contested the grievance petitions strongly on the usual grounds that the learned Labour Court had no jurisdiction as the respondents were appointed for a specific period (89 days)/project, . Hence they could not claim permanence; that their services were hired as and when need arose and do the completion of the work, they were relieved of their duties; that the respondents were work charged/temporary employees under the government department as such they were not permanent workmen in terms of the Standing Orders Ordinance, 1968 and they -therefore could not have invoked the jprisdiction of the Labour Court.
4. The learned Labour Court after recording of the evidence and hearing arguments of the parties, allowed their grievance petitions as indicated above.
5. Arguments have been heard and record has been gone through.
6. Learned counsel for the appellant department reiterated their arguments which were addressed before the learned Labour Court. I that been further contended that the impugned orders passed by the learned Labour Court show that while deciding the matter no judicial mind was applied. It was also argued that no regular sanction of posts were in existence and as such their claim was untenable. However, on the contrary, the respondents' counsel supported the impugned judgment passed by the learned Labour Court maintaining that the same were perfectly in accordance with law and the learned Labour Court had rightly granted the relief to the respondents.
7. The parties led their evidence. The respondents appeared as PW-1 and repeated their version in the grievance petition. On the other hand the appellant , department examined Mr. Ashraf Hussain Bhutta, D.E. Building Jhang as RW-1. He admitted in cross-examination that the respondents had been appointed from time to time for a specified period of 89 days respectively with the sanction of the competent authority. He however failed to explain as to why the department had been adopting this practice in respect of the low paid employees. He also conceded that it is within their knowledge that if a worker continuously performs his duty for a period of 90 days, he becomes permanent. According to him, the competent authority had been giving every time the approval for their working. He did not deny that the work against which the respondents were performing their duties were of permanent nature.
8. It is not denied that the work for which the respondents have been performing their duties is of permanent nature. This is established from the period of services for which they have been rendering in the department. This manifestly shows that they have been rendering services for a long period which is much beyond the period contemplated by the provisions of the Ordinance, 1968. If the respondents have continued for such a long period, how can one claim that the posts held by them were temporary? 'They are clearly fulfilling the criteria laid down by the Ordinance, 1968 as such surely their posts are of permanent nature. 'It is also not denied by the appellant department that all the respondents have been working in the department for the period indicated against each one of them and their service particulars are correct. So, therefore, it is obvious that they have been working against permanent posts and they have become permanent workers by the length of their services.
9. The record shows that this strange practice of appointment for 89 days was adopted merely to deprive the low paid workers of their permanent rights and this practice has been condemned by the Hon'ble Supreme Court of Pakistan hording it as an exploitation which is repugnant to the provisions of the Constitution of the Islamic Republic of Pakistan. It appears that the respondents had been regularly serving in tie department but they were issued temporary orders in order to ensure that they could not claim permanent status of their employment. Such types of orders have 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 number of colleagues of the respondents positioned as they are had already been regularized by the appellant department and instead of putting in contest to such a genuine claim the .Respondents should have themselves regularized them in view of the principal enunciated in Hameed Akhtar Niazi's case (1996 SCM R 1185). It was ruled by the Hon'ble Supreme Court of Pakistan in the cited case that the dictates and rules of good governance demand that benefit of such judgment by Service Tribunal/Supreme Court be extended to other civil servants who may not be parties to the litigation instead of compelling them to approach the Services Tribunal or any other forum. If the Service Tribunal or the Supreme Court decides a point of law relating to the terms and conditions of civil servants which covers not only the case of a civil servant who litigated but also of other civil servants. In the same analogy, if a law point decided by the Hon'ble Supreme Court or the Tribunal covers the case of a particular class of labour employees under the Labour Laws, the rules enunciated in the above judgment require the competent authority to automatically give relief to the similarly placed workmen and not to compel them to have a recourse to the long litigation.
11. The record shows and shows very clearly that each of the respondents had appeared in the learned Labour Court and supported his claim made in the grievance petition. They were cross- examined but could not be shattered and remained solid.
12. On the other hand the appellant department failed to rebut and refute the contentions of the respondents/grievance petitioners. The learned counsel for the appellant department claimed that being work charged employees who could have been hired and fired by the employer at his fjee will and wish could not have attained permanent status.
13. Now let us examine as to whether the respondents have become permanent workmen by afflux of time in the given circumstances and could have derived benefits of the conditions of service as laid down in the Standing Orders Ordinance, 1968. The Ordinance, 1968 lays down the following classification of workmen as under:--- Classification of workmen ( a) Workman 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 lo 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. The. Fact that the respondents were continuing in service for a long period establishes that by passage of time they had attained the status of permanent workmen. The other fact that the posts .Were equally permanent is also established by the fact that they had surely completed the period of service as envisaged in Standing Order 1(1)(b) of the Ordinance, 1968.
15. It was however submitted by the learned counsel for the. Appellants that the Labour Court has directed the appellants to pay all the arrears of the salaries to the respondents and that is a burden which is unbearable for the department because of the financial crisis being faced by the Provincial Government.
16. In this view of the alleged financial crunch the respondents are allowed 50% back benefits. With this modification the appeal are dismissed and the impugned judgments of the learned Labour