' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition has been filed against the judgment dated 14-3- 2013, passed by the Division Bench of Lahore High Court, Rawalpindi, whereby the I.C.A. No,11 of 2013 filed by the present petitioner was dismissed. For convenience, relevant para therefrom is reproduced herein below:- - "(6) The job of respondent was that of storekeeper. The respondent keeps on keeping the store which has not ceased to exist. The job of a Storekeeper, Plumber, Electrician, Carpenter and Sweeper etc. Are permanent jobs by their nature. These services as long the Punjab House at Islamabad exists, are needed by the department and the occupiers of the promises. These services are not to be performed for a day or a couple of days and then to be dispensed with. These services are needed as long the building department exists. It can safely by say that the nature of the jobs is permanent. The respondent employed in the year 1998 and fellow employees having been employed from almost the same time, have been performing their respective duties incessantly.
These posts and the duties can by no stretch of imagination be taken to be of temporary nature. The length of the respondent's service indicates and hints at the permanence of the posts. Even the work charge, casual and daily-wages workers, on account of the long continuation in service earn a presumption of regular need of their service obliging the authority to consider with a positive mind the necessity of the regularization of their service.
It was so held by the august Supreme Court of Pakistan in (1996 SCMR 1947). The Federal Service Tribunal in Appeal No,529(L)(C.S.) of 2004) held that those continuously in service for more than 90 days in a Calendar year had attained the status of permanent workman by operation of the West Pakistan Standing Orders Ordinance, 1968, this decision was upheld by the Hon'ble Supreme Court of Pakistan in C.P. No,1862-L of 2005. The impugned judgment passed by the learned Single Judge of this Court is in consonance with law. This appeal has no merit. It is hereby dismissed."
2. Brief facts of the case are that the respondent has been working as Storekeeper since 1-11-1998 on work- charge basis with the petitioner department. Despite working for more than 14 years, the services of respondent as well as other work-charge employees posted at Punjab House, Islamabad, were not regularized by the petitioner department. The respondent along with other employees approached various authorities but despite of making announcement for regularization no positive step was taken. However, instead of regularizing all the work-charge employees, the policy of pick and choose was adopted and 13 employees were regularized vide Office Order No,35/E dated 19-4-2010. The respondent challenged the said order before the Lahore High Court, Rawalpindi Bench by means of Writ Petition No,826 of 2011 with the prayer that the department be directed to regularize the services of the respondent as well as other work-charged employees and to treat them equally with the employees whose services were regularized. The said writ petition was allowed vide order dated 6-12- 2012 with the direction to the department to issue appropriate orders regularizing the services of the respondent and other employees expeditiously, strictly in accordance with law and in the light of the order dated 19-4-2012.
The petitioner department challenged the said order by means of I.C.A. No,11 of 2013, which was dismissed vide order dated 14-3-2013, impugned herein.
3. Learned Additional Advocate-General, Punjab has stated that respondent was appointed as Storekeeper on work-charge basis in the establishment of petitioner department in the year 1998 against emoluments of Rs,6,000 per month and presently is getting Rs,9,000 per month; his appointment is not of permanent nature as his case is covered under Para No,1.107 of the Public Works Department Code of Government of Punjab, therefore, in view of the judgment in the case of Province of Punjab v. Gul Hassan (1992 PLC 924) he is not entitled to be regularized.
4. We have heard the learned Additional Advocate-General and have gone through the above judgment. It would be appropriate to reproduce herein below paragraph No,1.107 of the Code:-- "1.107. Works establishment will include such establishment as is employed upon to actual execution, as distinct from the general supervision, of a specific work, or of sub-works of a specific project, or upon the subordinate supervision of departmental labor, stores and machinery in connection with such a work or subworks, provided that as an exception to the above miseries and mates employed in the interests of Government on the technical supervision of contractors work and Khalasis attached to subordinates for assisting them on works will be treated as work-charged establishment. When employees borne on the temporary establishment are employed on work of this nature, their pay should for the time being, be charged direct to the work.
(2)Works establishment does not include Clerks, Draftsman, Subordinate or extra establishment of any kind for the Divisional or Sub-Divisional offices, such establishment being properly chargeable to temporary Establishment but where Dak Runners are employed solely for a particular work of a temporary nature, for a period not exceeding six months they may be treated as work-charged establishment.
(3)The Chief Engineer, Regional Engineer Officers and Superintending Engineers are empowered to classify as 'Works' or 'Temporary' those classes of establishment about whose correct definition there is a doubt, subject to the concurrence of the Audit officer and to the proviso general principles for entertainment of such establishment are not infringed.
(4)Chief Engineer, Regional Engineer Officers and Superintending Engineers are authorized to waive the rule which requires that works establishment must be employed on a specific work and to determine, in such cases the proportions in which the cost of such establishment shall be allocated between the works concerned.
(5)The Cost of works establishment must be shown as a separate sub-head of the estimate for a work.
(6)All pay bills for work-charged establishment shall be pre-audited by the Divisional Accountant and approved by the Divisional officer before payment. Before a member of the work charged establishment whose services have been dispensed with, is settled up, the Sub-Divisional officer if there are any out-standings against the man.
(7) Members of the work-charged establishment, other that Road Inspectors who are engaged on the footing of monthly servants will be subject to discharge at 10 days' notice except in the case of serious misconduct or gross inefficiency (when no notice will be given), or on payment of pay for 10 days or for such period upto this extent as may be due to them in lieu of notice. Should they desire to resign they will be required to give 10 days' notice or forfeit pay for this period or for such period up to this extent as may be due to them in lieu of notice.
A careful perusal of above paragraph makes it abundantly clear that it is meant for work-charged establishment.
As far as nature of work of work-charged establishment is concerned, above provision itself provides that for execution of specific job person shall be appointed whereas in A the instant case respondent is working as Storekeeper since 1998 against a post, which is not a casual nature and is continuing to exist from the date at least when respondent was appointed against it.
5. Similarly, there are so many other such like persons who are working in different organizations of Punjab Building Department for the last so many years but as work-charged employees, although the nature of job assigned to them has been continuing for more than the period of 9 months in terms of paragraph 1(b) of the Schedule attached to the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, which provides as under:-- "(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 badly 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."
Learned counsel relied upon the judgment in Gul Hassan's case (ibid), relevant Para wherefrom is reproduced hereinbelow:-- "4. Rules 1.107, 1.108 of the Buildings and Roads Department Code(sic.) deal with the working conditions of work-charge establishment in extensor. In view of such statutory rules being in existence and applicable to the respondents, the application, invocation and reference to the provisions of the Standing Orders Ordinance was out of place and misdirected. The work-charged establishment cannot be declared permanent under the rules applicable to them, nor can they be granted all the benefits available to the permanent employees including seniority, promotion and service being treated as pensionable etc."
6. In the above judgment it has been held that work-charged employees are working in the establishment of State Administration, therefore, they are not governed by Standing Orders Ordinance, 1968. The said judgment is distinguishable because it was not decided on merit rather disposed of on the ground that circular was issued mentioning therein that employees not exceeding 50% of the work-charged establishment were to be so absorbed starting without those who have rendered the longest service on work-charged established. It was also observed therein that in such circumstances, the employees have to seek absorption on their own turn and in terms offered by the Government and not through Constitutional jurisdiction.
7. It is to be noted that exactly this very proposition came up under consideration in the case of Punjab Seed Corporation v. Punjab Labour Appellate Tribunal (1996 SCMR 1947) wherein the respondent was appointed as Field Supervisor on temporary basis on 25-6-1980 and continued as such till 30-7-1991 when his services were terminated. On receipt of notice of termination, he served a grievance notice on the department alleging that he was a permanent workman and as such his services could have not been terminated without a show- cause notice. He ultimately filed petition before Labour Court, which was dismissed, as such appeal was filed before the Punjab Labour Appellate Tribunal, which was accepted and the relief was granted to him. The writ petition, challenging the said order was dismissed and this Court also declined to grant leave to appeal.
Relevant paras from the said order are reproduced hereinbelow:-- "4. The learned High Court finding no substance in the aforementioned contentions, which are reiterated before us held as under:- "There is no substance in the arguments of the learned counsel that the respondent was a temporary workman inasmuch as no such objection was never (sic.) Taken by the petitioner in his written statement. Even otherwise, the appointment letter Annexure 'A' would demonstrate that he was appointed on 25-6-1980 and that his services were terminated on 20-7-1981. In other words, the respondent had been working on his job beyond six months to the Satisfaction of the Corporation. There was also no complaint against him. This being so, he became a permanent workman in the petitioner-Corporation within the meanings of West Pakistan Standing Orders Ordinance, 1968 against a permanent job. The learned Tribunal has appreciated the evidence on record and concluded that the respondent was a permanent workman under the petitioner. Thus, undoubtedly, a finding of fact, having been given by the learned Appellate Tribunal on the basis of a reliable evidence which cannot be interfered with in these proceedings."
In the case of Executive Engineer v. Abdul Aziz (PLD 1996 SC 610), the services of he work-charged employees of Pak P.W.D. Who continued to work for a period between 2 years to 7 years, were terminated, as such they approached the Labour Court Balochistan, Quetta through applications under section 25A of the I.R.O., 1969, which were allowed holding that they were permanent workers and termination of their services was illegal. The matter came to this Court when Mr. Justice Ajmal Mian, J. (as then he was), formulated following three questions:-- (i)Whether the respondents are civil servants 'in terms of section 2(1)(b) of the Act?
(ii)Whether the respondents can press into service the provisions of Standing Orders Ordinance? And (iii)Whether the respondents are entitled to press into service section 25 of the I.R.O.?
With regard to the first question, it was held that respondents were not civil servants. For reference, relevant para thereform is reproduced hereinbelow:-- "18 It may be observed that prima facie respondents are covered by item No,8 of the above II Schedule to Workmen's Compensation Act and, therefore, they are also excluded from definition of "civil servant" on that account. It is, therefore, evident that respondents cannot be treated as civil servants for the above two reasons."
As far as the second question is concerned, it was held that the employees had nothing to do with the running of the government, therefore, they were not employed in the administration of the State and hence, section 1(3)
(b) of I.R.O. Did not attract. It was further held that the provision of I.R.O. Could have been invoked by the employees by filing the applications under section 25A of I.R.O. Relevant para thereform is reproduced hereinbelow:-- "28. 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 he 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 1(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."
In the case of Secretary, Irriggtion and Power Department, Government of Punjab v. Muhammad Akhtar> (2009 SCMR 320) this Court upheld the findings of the Labour Court, whereby directions were issued for regularization of services of the work-charged employees.
8. Thus, it is held that service of respondent shall be governed by Standing Orders Ordinance, 1968 and he shall be considered permanent employee, as he is performing his duties continuously for more than 9 months since 4998 and the learned High Court has rightly issued writ in his favour.
9. Hereinabove are the reasons of our short order of even date, which is reproduced herein below:-- "For the reasons to be recorded later, this petition is dismissed with cost of Rs,50,000 which shall be deposited by the petitioner with Registrar of this Court within a period of three days and the respondent Ahmad Hussain shall be entitled to receive the same against a valid receipt. Leave to appeal is accordingly declined."