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. 4181/2014. Mst. Huma Noreen.
Versus Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
2. W. P. No. 1688/2015. Miss Naseem Akhtar.
Versus Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
3. W.P.No.718/201
5. Muhammad Nadeem Akhtar.
Versus Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
4. W.P.No.10618/2
014. Khalil Ahmad.
Versus Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the petition)
5. W.P.No.8389/20
14. Abdul Qadir.
Versus Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Muhammad Azeem.
Versus
6. W.P.No.8938/20
14. Senior Superintendent of Pakistan Railways Police, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Muhammad Yameen, etc. Versus 7 W.P.No.6135/20 The Divisional Superintendent, Pakistan
14. Railways, Multan, etc. (Detail of the status of employees/petitioners has been given in the petition)
Masood Ahmad.
Versus 8 W.P.No.9947/20
14. Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Muhammad Altaf.
Versus 9 W.P.No.8240/20 Works Manager Concrete Sleeper Factory,
14. Pakistan Railways, Khanewal, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Muhammad Arif Hashmi.
Versus 10 W.P.No.16276/2
014. Pakistan Railways through Chairman/Secretary, Railway Ministry, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Tasawar Abbas.
Versus 11 W.P.No.7777/20
14. Divisional Superintendent, Pakistan Railways, Multan, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition)
Hassan Rasheed.
Versus 12 W.P.No.10282/2
014. Works Manager Concrete Sleeper Factory, Pakistan Railways, Khanewal, etc. (Detail of the status of employee/petitioner has been given in the head-note of this petition) {{TABLE}}
2. The petitioners, through the afore referred different writ petitions, have submitted, that they were appointed on contract basis as Ticket Collector Grade-I (BS-5), Aya (BS-1), Lower Division Clerk (BS-7), Points-Man (BS-5), Gangman (BS-2), Muawin (BS-1), C & W Cleaner (BS-1), for a period of two years under a scheme issued by the Prime Minister of Pakistan, namely, Prime Minister Family Assistance Package; the petitioners are still working against the said posts; the respondents made a promise to regularize their services but no action was taken; the respondents have regularized the services of all the employees appointed under Prime Minster Family Assistance Package, but the petitioners have been denied to their fundamental rights and are being treated discriminatory.
Hence, these writ petitions.
3. The prayer made by the petitioners was opposed by the other side on the ground, that the petitioners were appointed on contract basis for a specific period, therefore, their services cannot be regularized.
4. It is not denied by the respondents, that the petitioners were appointed on contract basis and are still working in the department against the said posts. The most important aspect of this case which requires consideration, that the respondent-department, as evident from a notice/letter dated 08.03.2012, regularized the services of the other employees, appointed on contract under the same scheme, namely, Prime Minster Family Assistance Package, but the said benefits have not been extended to the petitioners which is violative of the guaranteed and secured rights of the petitioners under Article 2-A, 4 & 25 of the Constitution of the Islamic Republic of Pakistan, 1973. The Hon'ble Supreme Court of Pakistan, through an esteemed judgment cited as PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and another v. MUHAMMAD ZAHID and 29 others (2010 SCM R 253), has laid down, that any employee whether on work charge or on contract, will attain the status of a permanent/regular employee after expiry of the ninety days. The relevant portion (at Page No. 284) is reproduced as under: "Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4, and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc., described in paragraph No.2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period more than 2 years as contract employees renewed from time to time mentioned in para No. 16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a worker? or a civil servant? or the contact employees? having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them."
5. Another latest esteemed judgment, the Hon'ble Supreme Court of Pakistan has laid down in EJAZ AKBAR KASI and others v. MINISTRY OF INFORMATION AND BROADCASTING and others (PLD 2011 Supreme Court 22), the relevant portion (at Page No.25) is reproduced as under: "Thus in such view of the matter we are of the opinion that the Board of Directors may have not declined the petitioners? regularization, however it is a fact that regularization of contract employees, if at all is to be made is to depend upon the performance. The petitioners who have appeared in person state that they have qualified the test and their performance as well is up to mark which is evident that for the last more than ten years they have been allowed to continue work against the vacancies which they are holding without any interference and there is, now, no question of performance at all as they have already shown their performance.
4. Be that as it may, we are not inclined to agree to the reasons which prevailed upon the Board in not regularizing the Group 4, 5 and 6 when at the same time the employees of other Groups as noted hereinabove were regularized beside other individual persons whose names have also been mentioned hereinbefore. This Court has laid down a criteria in respect of such employees who have somehow identical contentions in the case of Ikram Bari and others v. National Bank of Pakistan through President and another (2005 SCM R 100). Therefore, we are of the opinion that the case of the petitioners deserves to be considered by the Board of Directors for the reasons noted hereinabove as they cannot be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution and at the same time after having spent a considerable period of their lives in the Organization performing duties on contract basis. It is also the duty of the Organization to protect their fundamental rights enshrined in Article 9 of the Constitution."
6. 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.]"
7. The only question, which pertains to the status of the respondents and their regularization by afflux of time and law applicable thereon, requires consideration.
8. In this case, the petitioners 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 petitioners are working, is of permanent nature, thus, the denial of the respondents to regularize the services of the petitioners as permanent workmen, is not permissible in law.
9. 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 it is the device which is based on mala fide 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."
10. Since the petitioners, 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 respondents will have to regularize the services of the petitioners 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.
11. It is not denied, that the petitioners are working from the last many years, and suffice to hold, that the respondents are needed to the respondent-department and further, even otherwise, it is also to be taken into consideration that almost all the petitioners 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 respondent-department instead of involving them in litigation, should have regularized the services of the petitioners.
12. 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."
13. 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."
14. The other esteemed judgments applicable in this case are as under:
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 SCM R 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 SCM R 1058)
5. Province of Punjab through Secretary Communication and Works Department and others v.
Ahmad Hussain (2013 SCM R 1547)
6. WAPDA and others v. KHANIMULLAH and others (2000 SCM R 879).
15. The learned counsel for the respondent-department, 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 SCM R 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 learned counsel for the petitioners 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 petitioners.
16. 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 SCM R 723), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCM R 1185), and TARA CHAND and others v. KARACHI WATER AND SEWERAGE BOARD, KARACHI and others (2005 SCM R 499).
17. In view of the law laid down by the Hon'ble Supreme Court of Pakistan, these writ petitions are allowed. The respondents are directed to regularize the services of the petitioners along with the back benefits, in accordance with law.