.--- By means of this common judgment I hitend to dispose of the above mentioned Labour Appeals which arises from a common order/judgment.
2.
It is the case of appellant in Labour Appeal No,4 of 2014 was initially appointed on daily wages basis as Peon on 20-8-2011 by respondent whereas appellant in Labour Appeal No,5 of 2014 was appointed on contract basis in July, 2012 as Driver. Thereafter on 30-1-2013 by means of office order their services were regularized but on 14-2-2013 the regularization order has been withdrawn.
Against which grievance notice has been served on 28-8-2013 which has not been responded by the respondent. Ultimately filed grievance petition before Learned Labour Court which was dismissed on 25-2-2014. Hence this appeal.
3. The learned counsel for appellants contended that the learned Labour Court did not consider the application for condonation of delay but overlook the present situation that the appellants are still serving the respondent on their previous work charge basis. Being the employees of the respondent the limitation did not come in their way. Secondly contended that according to Standing Order Ordinance the appellants automatically became permanent employee for the reason that they satisfactorily fulfill nine months probationary period. Next submitted that office note is very much clear about the attitude of the officers of respondent to words lower grade employees. Further submitted that the case of Awais Ahmed and others before Learned Labour Court was quite similar to that of case in hand which was allowed and their services were regularized but the applicants/appellants were not treated at par with them. Lastly contended that the order of the honourable High Court of Balochistan dated 16-1-2013 relates to newly appointment rather the case of appellants were for regularization of their services. The learned counsel for respondent on the other hand while supported the impugned judgment contended that due to poor financial position of QDA the services of appellants could not be regularized and Honorable High Court of Balochistan by means of order dated 16-1-2013 restrain the QDA for new appointments.
4. In the light of submission made by the learned counsel for the parties and documents available on record the following points needs consideration:---
(1) Whether the appellants/applicants can press into service the provisions of Standing Order Ordinance?
(2) Whether the matter before Learned Labour Court was time barred in view of contention of learned counsel for appellants/ applicants that the appellants/applicants approach the learned Labour Court for their regularization in continuation of their employment with the respondent.
5. The terms and conditions of appointment letter and regularization are temporary in nature and can be withdrawn at any time without assigning any reason. Contrary to this the provisions of Standing Order Ordinance, 1968 provide remedy in respect of temporary employment with such terms and conditions. In above said Ordinance the definition of permanent worker has been given 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 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."
6. A similar matter came before honorable Supreme Court of Pakistan where the same question arise that whether temporary employee can press into service the provisions of Standing Order Ordinance or otherwise in 2014 PLC 394 relevant page 398 it is held:--- "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 far execution of specific job person shall be appointed whereas in the instant case respondent is working as Stock keeper 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."
In view of above dictum laid down by honorable apex Court the same position is in case in hand for the reason that first appellant was appointed as Peon in the office of Secretary of QDA whereas second appellant was appointed as Driver and both the posts are permanent in nature which is apparent since 2011. Therefore, it cannot be said that appointment and job were temporary in nature.
7. The above two points further specified by honorable apex Court in the above-mentioned judgment at para. No,5 as under:--- "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 scheduled attached to the Industrial and Commercial Employment (Standing Order) Ordinance, 1968."
' Earlier this proposition came before honorable Supreme Court of Pakistan reported. in 1996 SCMR 1947 wherein aggrieved respondent was appointed as field supervisor on temporary basis and when he received notice of termination, he served grievance notice claiming that he was a permanent Workman and as such his services could have not be terminated without a show- cause notice. The learned Labour Court dismissed his petition and Labour Appellate Tribunal accepted the appeal and the relief were granted to him. The writ petition challenging the said order was dismissed and Honorable Supreme Court also refused to grant leave to appeal. The relevant Para of above mentioned judgment is reproduced 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 Order 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."
' The question of application of Standing Order Ordinance further came before honorable apex Court reported in PLD 1996 Supreme Court 610 it is held as under:--- "In view of above paragraph 1(b) of the Scheduled to the Standing Order Ordinance in violation of Standing Order No,12, they could have filed the application under section 25-A of the I.R.O."
' In another case reported in 2009 SCMR 320 upheld the findings of Labour Court whereby directions were issued for regularization of services of work charged. The honorable Supreme Court of Pakistan concluded in the case of Province of Punjab v. Ahmed Hussain 2013 PLC 394 as under:-- - "Thus, it is held that service of respondent shall be governed by Standing Order Ordinance, 1968 and he Shall be considered permanent employee, as he is performing his duties continuously for more than 9 months since 1998 and the learned High Court has rightly issued writ in his favour."
' In above cited case the work charged employees approached for their regularization which was finally decided in above reported case.
8. In view of above cited case-laws it is clear that the appellants/ applicants fall within the category of permanent employees and Standing Order Ordinance fully applied/attract in the cases.
9. Next question is with regard to point of limitation. Apparently the grievance petition has been filed with a delay of 22 days. Though sufficient cause was not mentioned in application for condonation of delay but keeping in view the strong legal position of the case the litigants could not be thrown out on the technical grounds. As discussed herein above in the light of dictum laid down by honorable apex Court the applicants/appellants may not be deprived of their rights on the grounds of limitation for the reason that the appellants/applicants during their services approached the Authority and Court for the regularization of their services. Therefore embargo of limitation is not applicable to them. Even otherwise the honorable Superior Courts always encouraged the decisions of the cases on merit rather the litigants be nonsuited on technical grounds including the point of limitation. In this respect honorable High Court of Balochistan in C.P No,54 of 2011 held as under:--- "Even otherwise superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation. Reference in this regard is made to the case of Muhammad Hanif Bukhari v. President, 'National Bank of Pakistan 2004 PLC (C.S.) 1014."
10. It is contended on behalf of respondent that Honorable High Court of Balochistan on 16-1-2013 restrained the QDA from making any new appointment the same is reproduced as under:--- "C.M.A. No,132 of 2013.--- Notice, In the meanwhile the respondents are restrained from making any new appointments in the QDA till the next date of hearing."
As it is pointed out by learned counsel for appellants that the instant cases are for regularization of their services and not fresh/new appointments. Even otherwise in Cases Nos.9 of 2013 and 10 of 2013 dated 21-5-2013 the learned Labour Court allowed the same nature of cases which were later on regularized by respondent but the cases in hand dismissed on the point of limitation without keeping the provisions of Article 25 of Constitution of Islamic Republic of Pakistan 1973.
11. In view of above discussion the above mentioned appeals are allowed and impugned order dated 25-2-2014 in Case No,40 of 2013 and withdrawal order dated 14-2-2013 are set aside with direction that the withdrawal order of the applicants dated 14-2-2013 is without lawful authority.
The differences of the salaries of applicants/appellants be paid as regular employees. However under the circumstances of the case the parties are left to bear their own cost.
12. The copy of order along with original record of trial Court be sent to trial Court. Case after completion be consigned to record.