' ASAD MUNIR (CHAIRMAN).--- The appellant, Mirza Baber, joined the service of WASA, FDA, Faisalabad on 10-9-2007, in its Computer Section as Composer/KPO on work-charge basis. Having rendered service continuously for more than 9 months, the appellant, along with 6 other work- charge employees in the Computer Section, filed a joint grievance petition for the regularization of their services but the grievance petition has been dismissed by Punjab Labour Court No,4, Faisalabad, through its judgment dated 28-4-2010 on the ground that the A appellant "remained unsuccessful to establish on record that he had been working against a permanent post" and that the other work-charge employees were not employed with WASA at the time of filing the grievance petition.
2. Assailing the aforesaid judgment, learned counsel for the appellant contends that the learned Labour Court has failed to appreciate that in view of the provisions of Standing Order 1(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the appellant has attained the status of a permanent workman and that his post of Composer/KPO is of a permanent nature as he has been continuously employed as such since 10-9-2007. According to the learned counsel, the concept of permanent post is alien to the scheme of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the only test is whether the workman is employed in work of a permanent nature likely to last more than 9 months. It is pointed out by the learned counsel that Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal and others (1999 SCM R 2557), relied upon in the impugned judgment, is in fact in favour of the appellant. Supporting the impugned judgment, the learned counsel for the respondent has argued that being a work-charge employee, the appellant never became a permanent workman merely on basis of his length of service in view of Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan (2013 SCM R 13). Learned counsel also argued that the Respondent was employed in a post of a specific project for which was completed and the appellant's services were no longer required. Reference has also been made to Rule 2(f)(ii) of the Faisalabad Development Authority, Faisalabad (Appointment and Conditions of Service) Regulations, 1990, to urge that the appellant, being employed on work-charge basis, cannot be deemed to be an employee of WASA, FDA.
3. I have considered the arguments advanced on either side and have also examined the available record. Since 10-9-2007, the appellant has been employed in WASA, FDA, on work-charge basis by being appointed from time to time with a break of a few days on each occasion. Due to such breaks in service, the appellant was paid much less in terms of pay and allowances as compared to the regular employees. However, law does not recognize such breaks in service and regards them as illegal devices designed to frustrate the provisions of Standing Order 1(b) with the result that permanent status cannot be denied to a workman who has worked for a considerably long time. I may here refer to Director General LDA and 2 others v. Amjad Ali (2004 PLC 224), wherein a workman appointed, and re-appointed for 89 days was held to be permanent on the ground that it was against the mandate of Standing Order 1(b) to deny him permanent character as a workman.
Reference may also be made to Ikram Bari v. National Bank of Pakistan (2005 SCM R 100), where such breaks in service were declared as a fraud on the statute.
4. Despite finding that the appellant has rendered service for more than nine months, the impugned judgment quite erroneously holds that the appellant is not engaged in work of a permanent nature on the ground that he was not working against a permanent post. Learned Labour Court appears to have wrongly placed reliance on Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal and others (1999 SCM R 2557), wherein a workman was declared permanent for having been employed for longer than nine months against a permanent post.
However, the said precedent by no means lays down the rule that the sole criterion for determining work of a permanent nature is that the workman is working against a permanent post. It may be observed that in accordance with Standing Order 1(b), the criterion to determine the status of a workman is not that he has been engaged against a permanent post but is "engaged on work of permanent nature likely to last more than nine months." Admittedly, the appellant is employed as Composer/KPO in WASA since 10-9-2007 when he filed the grievance" petition on 7-4-2009, the appellant had completed more than 9 months' service. In the face of the admitted fact that the appellant is employed with WASA, FDA, continuously since 10-9-2007, no doubt can be entertained that the appellant is engaged in work of a permanent nature otherwise he would not remained employed for such a long period.
5. After going through Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan, supra, I find that the question of regularization in service on the strength of or by reference to Standing Order 1(b) was never raised with the result that the Hon'ble Supreme Court had had no occasion to address it. However, the question of respondent's regularization in service on account of Standing Order 1(b) was specifically raised in the present case. It is settled law that a work-charged or temporarily-appointed workman attains the status of a permanent workman if he has continuously worked for a period longer than nine months in a job of a permanent nature. In support, I may refer to the Hon'ble Supreme Court's recent judgment dated 29-5-2013, unreported so far, titled Province of Punjab through Secretary Communication and Works (Civil Petition No,708 of 2013) where a Storekeeper, who was continuously employed for about 14 years on work-charge basis in the Punjab House, Islamabad, was declared to be a permanent workman in view of Standing Order 1(b). Reaffirming its earlier view in Executive Engineer, Central Civil Division, PAK.
P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Punjab Seed Corporation v.
Punjab Labour Appellate Tribunal (1996 SCM R 1947) and Secretary Irrigation and Power Department, Government of Punjab v. Muhammad Akhtar (2009 SCM R 320), the Hon'ble Supreme Court was pleased to observe and conclude in para 8 of its judgment as under:--- "8. Thus, it is held that service of the 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 1968 and the learned High Court has rightly issued writ in his favour."
6. It was also urged by the WASA's learned counsel that the appellant was employed against the project called Water and Sewerline Madina Town which has been completed. However, most of the appellant's appointment letters on record do not show his appointment against the said project but show that he was appointed in the Computer Section. There was no plea in the WASA's written reply to the effect that the appellant was employed in the said project or that it had been completed. Nor any evidence was produced by WASA to prove that the project had been completed. In the circumstances, the appellant has been employed in work of a permanent nature as there is no reason to believe that the appellant was employed in a project which has been completed. A case in point is the Province of Punjab v. Punjab Labour Appellate Tribunal and others (2002 SCM R 836) wherein it was laid down that a work-charge employee cannot be denied the status of a permanent workman where he was not appointed against a specific project. Rule 2(f)
(ii) of the Faisalabad Development Authority, Faisalabad (Appointment and Conditions of Service)
Regulations, 1990, is also of no help to the respondent as it must give way to Standing Order 1(b) in terms of which the appellant must be recognized as a permanent workman.
7. In view of what has been discussed above, the instant appeal is allowed and the appellant is declared to be a permanent workman with a direction to the respondent to regularize the appellant in service within a fortnight.