Ali Akbar Qureshi, J:- Through this judgment, I propose to decide the following writ petitions alongwith this petition, as common question of law and facts is involved:- {{TABLE}} Sr.
No. Writ Petition Nos. Title of Writ Petition.
1 W.P.No.7909/2014 Executive Engineer, River Division Basira, Muzaffargarh.
Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
2 W.P.No.7910/2014 Executive Engineer, River Division Basira, Muzaffargarh.
Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
3 W.P.No.7911/2014 Executive Engineer, River Division Basira, Muzaffargarh.
Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
4 W.P.No.7912/2014 Executive Engineer, River Division Basira, Muzaffargarh.
Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
5 W.P.No.11584/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
6 W.P.No.11585/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
7 W.P.No.11586/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
8 W.P.No.11587/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
9 W.P.No.11588/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition)
10 W.P.No.11589/2014 Govt. of the Punjab through Secretary, Communication & Works Department, Lahore, etc. Versus Punjab Labour Appellate Tribunal No.2, Multan, etc. (Detail of the status of employees has been given in the head-note of this petition) {{TABLE}}
2. Shortly the facts, necessary for disposal of the above-referred writ petitions are that, the employees (detail of whom has been given in the head-note of the writ petitions) were appointed in the office of the petitioner-department, against different posts, namely, Baildar G.F.B. Section, Baildar L.G.B. Section, Pump Operator, Chowkidars, Dak Runner, Baildar, Plumbers, Electrician, Helper Plumber, Tube-Well Driver, (detail of the status of employees has been given in the head-note of the petitions).
3. The respondents/grievance-petitioners, who were working against their posts from the last many years, filed grievance notices to the petitioners for their regularization into service, which was turned down and thereafter, under the Labour Laws, they filed joint Grievance Petitions before the Labour Court No.9, Multan, on the grounds; that they (respondents) were initially appointed on work-charge basis and from the last many years are working against the said post; the petitioners all the time extended the period of their service instead of regularizing their services during this period; the service period of the respondents is continuous without gap and nothing was adverse against them, therefore, the respondents, by afflux of time as given in the law, had attained the status of permanent/regular employees. The respondents are doing manual jobs, therefore, fall in the definition of workmen. The petitioners regularized other employees like the respondents/workers, working under the Executive Engineer Irrigation and Power Machinery Division, Multan, under the order of the High Court passed in W. P. No. 7448 of 2004, which was also affirmed by the Hon'ble Supreme Court of Pakistan through an esteemed judgment dated 17.09.2009. Lastly, it was prayed, that the respondents be regularized into their services from the date of their initial appointment with all the benefits admissible in law.
4. The grievance petitions were vehemently contested by the petitioners/respondents by filing reply wherein it was alleged, that as the respondents were appointed on work-charge basis, therefore, they cannot attain the status of a permanent employee.
5. The learned Labour Court No.9, Multan, recorded evidence of the respective parties, heard arguments and finally accepted the grievance petitions by directing the petitioner-department to regularize the services of the respondents/petitioners from the date of their initial appointments alongwith all the benefits available to the other regular employees.
6. Being aggrieved thereof, the petitioner-department filed appeals before the learned Punjab Labour Appellate Tribunal No.II, Multan, which was dismissed by the learned Appellate Tribunal through exhaustive and elaborative judgments impugned in afore-referred petitions.
7. Learned Assistant Advocate-General, representing the petitioners, submitted that the respondents are not working against the confirmed/sanctioned posts, and initially, were appointed on work-charge basis, therefore, cannot be termed as permanent workmen; learned Labour Court had no jurisdiction to entertain the cases of the work-charge employees, but this fact has not been attended by learned Labour Appellate Tribunal; the learned forums below while rendering the concurrent findings, acted against the principle laid down by the Hon'ble Courts in different cases, that the work-charge employee, if not taking the benefit of a regular employee, cannot be declared permanent workman, and the judgments have been rendered by the learned Courts below in haste, which is against the norms of justice. Reliance is placed on MUHAMMAD YAQOOB v.
THE PUNJAB LABOUR COURT NO.1 and 5 others (1990 SCMR 1539), and Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan (2013 SCMR 13).
8. The arguments advanced by learned Assistant Advocate-General, representing the petitioners, were seriously opposed by learned counsel for the respondents.
9. The legislature has defined the permanent workman in Standing Orders 1 (b), that if a worker is appointed against a project which is likely to be continued more than nine months and the worker remained in service for nine months, will attain the status of a regular employee. The relevant provision i.e. Para 1. (b). of Schedule of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is hereby reproduced as under: SCHEDULE.
STANDING ORDERS
1. Classification of Workmen: (a)Workmen shall be classified as--
(1) ...
(2)
(3)
(4)
(5) ...
(6) ...
(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, 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, 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.]"
10. The only question, which although has already been dilated upon in detail, by the learned Labour Court as well as the learned Labour Appellate Tribunal, pertains to the status of the respondents and their regularization by afflux of time and law applicable thereon, requires consideration.
11. In this case, the respondents are working against the same post and Project from the last many years, therefore, it can safely be held, that the post and project against which the respondents are working, is of permanent nature, thus, the denial of the petitioners to regularize the services of the respondents as permanent workmen, is not permissible in law.
12. The Hon'ble Supreme Court of Pakistan has not appreciated rather discouraged the practice of departments, government or the private, who hire the service of the poor people by issuing the appointment letter of eighty nine days just to defeat the legal provisions applicable therein, in fact this device is based on mala fide which is being used to deprive the poor worker who served the department for years. The Hon'ble Supreme Court of Pakistan many a times through elaborative judgments has deprecated this practice and regularized the services of the workers appointed on work charge basis or on contract. I am fortified by an esteemed judgment of the Hon'ble Supreme Court of Pakistan titled Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1995 PLC 539). The Hon'ble Supreme Court of Pakistan at page 540, has observed as under: "3. The contentions of the learned counsel for the petitioners that the respondent was appointed on work charge basis' to supervise wheat procurement which is of seasonal character; that the respondent was not a workman within the meaning of the Standing Orders Ordinance; that respondent's letter of appointment was issued by an officer who was not empowered; that the order of termination was legal; that the respondent had been paid his remuneration from contingency showing the character of his appointment have been fully dealt with elaborately by the Labour Appellate Tribunal as well as by the learned High Court in the light of the pleadings of the parties and the record placed on the file.
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 as never taken by the petitioner in his written statement. Even otherwise, the appointment letter Annexure A? would demonstrate that he was appointed on 25.06.1980 and that his services were terminated on 20.07.1981. 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. This is, undoubtedly, a finding of fact, having been given by the learned Appellate Tribunal on the basis of reliable evidence which cannot be interfered with in these proceedings.
5. For the reasons we find no infirmity in the judgment of the learned High Court refusing to interfere with the finding of fact reached by the learned Appellate Tribunal which finding is based on proper appraisal of the evidence of the parties. We, accordingly, refuse to grant leave to appeal and dismiss the petition."
13. Since the respondents, in view of the law laid down by the Hon'ble Supreme Court of Pakistan, have attained the status of permanent workmen/workers by afflux of time, therefore, the petitioners will have to regularize the services of the respondents in accordance with law, and any action, if required in case of any misconduct, will be initiated under Order 12 of the Standing Orders Ordinance and not otherwise.
14. It is not denied, that the respondents are working from the last many years, and suffice to hold, that the respondents are needed to the petitioner-departments and further, even otherwise, it is also to be taken into consideration that almost all the respondents have become over-age during the period of their service and cannot go anywhere nor can apply to earn their livelihood in any department or organization, therefore, the petitioner-departments, instead of involving themselves in litigation, should have regularized the services of the respondents.
15. The arguments advanced by learned counsel for the respondents relying on the different esteemed judgments of the Hon'ble Supreme Court of Pakistan, that this Court, while exercising the jurisdiction conferred under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, cannot substitute its own findings in the presence of the concurrent conclusion drawn by the forums below on facts as well as on record. Both the learned forums below, after due appreciation of the record and the contentions of the parties, have recorded concurrent findings which cannot be interfered while exercising the writ jurisdiction unless the forums below acted without lawful authority and jurisdiction. Reliance is placed on Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415), General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v.
Farhat Iqbal (PLD 2003 Supreme Court 952), Pakistan Defence Officers Housing Authority, Karachi v.
Shamim Khan through L.Rs. and 5 others (PLD 2005 Supreme Court 792), State Life Insurance Corporation and others v. Jaffar Hussain and others (PLD 2009 Supreme Court 194), Rai Ashraf and others v. Muhammad Saleem Bhatti and others (PLD 2010 Supreme Court 691), and Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 Supreme Court 44).
16. In another esteemed judgment reported as Executive Engineer, Central Civil Division, Pak. P.W.D.
Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), the Hon'ble Supreme Court of Pakistan, while dealing with the question of permanent worker, at page 621, has ruled as under: "The ratio of the above judgment in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman is a permanent workman or not, but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employed, is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided, he is covered by the definition of the term "worker" given in section 2 (i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant-department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than nine months. From the side of the appellant nothing has been brought on record in this behalf. The appellant-department is engaged in maintaining the Government residential and non- residential buildings and constructing itself and/or causing construction thereof. The above work as far as the appellant-department is concerned is of permanent nature. In this view of the matter, the finding recorded by the Labour Courts in this respect cannot be said to be not founded on evidence on record."
17. In another judgment cited as Tehsil Municipal Administration v. Muhammad Amir (2009 PLC 273), has further elaborated the status of a workman at page 280, the relevant paragraph is reproduced as under: "13. In the instant case, the work being performed by the respondent as Tube-Well 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 TMA Bhalwal where he continued to work till 15.08.2005 when he was informed that his services had been terminated w.e.f. 01.09.2004. 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."
18. The other esteemed judgments applicable in this case are as follows:
1. Pakistan International Airlines v. Sind Labour Court No.5 and others (PLD 1980 Supreme Court 323)
2. Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557)
3. Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724)
4. Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others (2008 SCMR 1058)
5. Province of Punjab through Secretary Communication and Works Department and others v.
Ahmad Hussain (2013 SCMR 1547)
6. WAPDA and others v. KHANIMULLAH and others (2000 SCMR 879).
19. The learned counsel for the petitioners, during the course of arguments, has referred a recent judgment of the Hon'ble Supreme Court of Pakistan cited as Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan (2013 SCMR 13). The aforesaid esteemed judgment has been passed by the Bench consisting of three Hon'ble Judges of the Hon'ble Supreme Court of Pakistan, whereas the judgment cited as Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724), referred by the learned counsel for the respondents supra, is of a Bench consisted of five Hon'ble Judges of the Hon'ble Supreme Court of Pakistan. Thus, following the principle laid down by the Hon'ble Supreme Court of Pakistan in various judgments, that the judgment of the larger Bench would follow to resolve the controversy, hence the judgment (supra) delivered by the Hon'ble five Judges of the Apex Court would govern the controversy in this matter. Even otherwise, the ratio decidendi of the other judgments on this point goes in favour of the respondents.
20. There is another aspect of the case which also favours the cause of the respondents, that the respondents/employees, while filing the grievance petition before the learned Labour Court, have mentioned in para No.9 of the grievance petition, that the petitioner-department earlier to this, in the similar situation, regularized the services of the other employees (55-employees) in compliance of the order passed by this Court and affirmed by the Hon'ble Supreme Court of Pakistan. As stated in the afore-referred para of the grievance petition, that the employees of the petitioner-department filed a writ petition No.7448 of 2004 titled Muhammad Iqbal V. Govt. of Punjab, etc, before this Court, which was disposed of on 05.06.2009 on the strength of a well-known esteemed judgment of the Hon'ble Supreme Court of Pakistan in Akram Bari?s case cited as 2005 PLC (CS) 915, and the petitioner-department was directed to regularize the services of the writ- petitioner and respondents within a period of two months. The aforesaid order passed by this Court, was assailed by the petitioner-department before the Hon'ble Supreme Court of Pakistan, by filing civil petition No.1534-L/2009, the Hon'ble Apex Court refused to interfere in the order passed by this Court and finally dismissed the civil petition on 17.09.2009.
21. The Hon'ble Supreme Court of Pakistan, while dealing with such type of situation, has already dictated, that the benefit of the judgment of the Court should be extended to others who might not be parties to the litigation and are falling in the same category, instead of compelling them to approach the legal forum. Further, even otherwise, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 is also clear on the point, that all the citizens are entitled to equal protection of law. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, cited as MUHAMMAD ZAEEM KHALID and others v. BAHA-UD-DIN ZAKERIA UNIVERSITY and others (1995 SCMR 723), Hameed Akhtar Niaziv. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), and TARA CHAND and others v. KARACHI WATER AND SEWERAGE BOARD, KARACHI and others (2005 SCMR 499).
22. This Constitutional petition has been filed against the concurrent findings on facts as well as on law recorded by the learned forums below, although learned Assistant Advocate General, representing the petitioners, argued the case at length but could not point out any jurisdictional defect, legal infirmity or irregularity with the findings recorded by the learned forums below.
Needless to mention, that in the Constitutional jurisdiction conferred under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners will have to point out the illegality committed by the learned forums, therefore, this is not a fit case to exercise the Constitutional jurisdiction, which is discretionary and equitable in nature. Even otherwise, learned Tribunal has appreciated the evidence on record and concluded, that the respondents were permanent workmen under the petitioners, which is undoubtedly a finding of fact having been given by learned Appellate Tribunal on the basis of reliable evidence, which cannot be interfered with in these proceedings.
23. For these reasons, I find no infirmity with the judgment of learned Punjab Labour Appellate Tribunal No.II, Multan, which findings are based on proper appraisal of the evidence of the parties.
24. Resultantly, the judgments passed by learned forums below, are affirmed and the writ petitions are dismissed with no order as to cost.