ALI AKBAR QURESHI, J.--- By this judgment I propose to dispose of the following writ petitions along with this petition, as common question of law and facts is involved:--- Sr.
No,Writ Petitions Nos.Names of Respondents/ EmployeeDesignationDate of appointment 1 W.P.No,10136/Muhammad WaheedTurbine 2-2-2008 2014 s/o Haji Allah YarOperator 2 W.P.No,8210/Dilber Hussain s/o .Machinery1985 2013 Muhammad SiddiqueHelper 3 W.P.No,10139/Javaid Iqbal s/oFieldman 2008 2014Ghulam Muhammad Bhatti 4 W.P.No,10135/Muhammad RamzanFieldman 1995 2014 s/o M. Rafiq Kamboh 5 W.P.No,2769/Khalid Mehmood s/oFieldman 1998 2014 Muhammad Din 6 W.P.No,2065/ 2014Faisal Ahmad Shahzad s/o Muhammad ZulfiqarWorker 2-3-2007 7 W.P.No,2078/Muhammad Iqbal s/oWorker 3-5-2008 2014 Allah Rakha 8 W.P.No,2780/Jamshed Ali s/o RaoSecurity Guard1993 2014 Shamshad Ali 9 W.P.No,2427/Shahid Nadeem s/oMechanic/1996 2014 Zafar Ali Helper 10 W.P.No,2430/Wali Muhammad s/oHelper 1988 2014 Sardar Khan 11 W.P.No,10134/Sadiq Hussain s/oFieldman 2007 2014 Khadim Hussain 12 W.P.No,2075/Muhammad Afzal s/oWorker31-10- 2006 2014 Noor Muhammad 13 W.P.No,2436/Rashid Yousaf s/oWelder 2000 2014Kanwar Muhammad Khan Zahoor Hussain s/oAssistant1-1-1990 Muhammad ChiraghMechanic Muhammad Afzal s/oAssistant1-1-2000 14 W.P.No,2439/Nazir Ahmad, mechanic 2014 Muhammad Saleem s/oMachinery1-1-1999 Muhammad JamilHelper Altaf Hussain s/o FatehWelder 1-1-1998 Muhammad 15 W.P.No,2437/Muhammad NadeemTube well2000 2014 s/o Muhammad BashirOperator 16 W.P.No,2447/Sabir Ali s/o Carpenter1985 2014Muhammad Yaqoob Sultani 17 W.P.No,2446/Altaf Hussain s/o FidaBeldaar 1993 2014 Hussain 18 W.P.No,2429/Saeed Ahmad Khan s/oStore Clerk1998 2014Muhammad Yousaf Khan 19 W.P.No,2428/Muhammad Aslam s/oBeldar 1-6-2004 2014 Nasir Khan 20W.P.No,2434/Abdul Haq s/o MalikMachinery1999 2014 Ghulam Qasim Helper 21W.P.No,2440/ 2014Zafarullah s/o Abdul AzizMechanic/ Helper7-12-1982 22W.P.No,2435/Ghulam Murtaza s/oSecurity Guard21-1-1998 2014 Muhammad Nawaz 23W.P.No,2433/Abdul Sattar s/oBeldar 2001 2014 Muhammad Shafi 24W.P.No,2441/Maqbool Hussain s/oCook16-10- 2006 2014 Muhammad Bakhsh 25W.P.No,2767!Khadim Hussain s/oMechanic 1996 2014 Murad All Helper 26W.P.No,2076/Liaqat Ali s/o Worker31-10- 2006 2014 Muhammad Rafiq 27W.P.No,2074/Umar Hayat s/o NoorWorker31-10- 2006 2014 Muhammad 28W.P.No,2069/Liaqat Ali s/o ManzoorWorker 3-5-2008 2014 Hussain 29W.P.No,2068/Shahid Raza s/o SherField Man 1-1-2011 2014 Muhammad 30W.P.No,2444/Muhammad Younas s/oHelper 1997 2014Muhammad ManshaAssistant Mechanic 31W.P.No,2418/Muhammad Shahid s/oCleaner/Helper16-10- 2006 2014 Muhammad Ramzan 32W.P. No,2414/Shabbir Hussain s/oStore Clerk 1999 2614 Abdul Hameed 33W.P.No,2764/Abu Nassar s/oSecurity GuardApril, 2002 2014 Muhammad Akram 34W.P.No,2085/Abdul Shakoor s/oField Man 1-1-2008 2014 Manzoor Hussain 35W.P.No,2083/Muhammad Iqbal s/oWorker 3-5-2008 2014 Wahid Bakhsh 36W.P.No, 2084/Muhammad RamzanWorker31-10- 2006 2014 s/o Bashir Ahmad 37W.P.No,2416/Mashooq Ali s/o LalMechanic/ 1999 2014 Din Helper 38W.P.No,2425/Nassarullah s/o AbdulWelder January, 2014 Aziz 1994 39W.P.No,2766/Allah Ditta s/o HarhidFumigation 12-9-2001 2014 Khan helper 40 W.P.No,2423/Mazhar Khan s/oElectrician16-10-2006 2014 Ghulam Rasool 41 W.P.No,2422/Sajjad Hussain s/o SobaMorter Mate1992 2014 Khan 42 W.P.No,2775/Noor Muhammad s/oSecurity Guard1998 2014 Jamal Din 43 W.P.No,2776/Bashir Ahmad s/oNaib Qasid/Jan-91 2014 Sarang Khan Security Guard 43 W.P.No,2779/Muhammad Saeed s/oStore Clerk1-5-2002 2014 Muhammad Shafi 44 W.P.No,2778/Asif Bilal s/o PeerSecurity GuardJanuary, 2014 Muhammad 2000 45 W.P.No,2077/Syed Najam ul HassanWorker 31-10-2006 2014 s/o Fida Hussain 46 W.P.No,2079/Muhammad Ajmal s/oWorker 31-10-2006 2014 Manzoor Ahmad 47 W.P.No,10143/Abdul Majeed s/oFieldman 2009 2014 Zulfiqar Ali 49 W.P.No,8207/Pervaiz Ahmad s/oTube well1988 2014 Sardar Ahmed Operator 49 W.P.No,10142/Ejaz Ahmad s/oFieldman 2006 2014 Manzoor Ahmad 50 W.P.No,10140/Mushtaq Ahmad s/oFieldman 1997 2014 Noor Muhammad Sial 51 W.P.No,10137/Muhammad Aslam s/oDriver 2010 2014 Haji Allah Yar 52 W.P.No,10141/Khizar Hayat s/o HaqDriver 2000 2014 Nawaz 53 W.P.No,2765/Pervaiz Khan s/o GullFieldman Feb-98 2014 Member Khan 54 W.P.No,2773/Ijaz Ahmad s/o AmeerDriver 1996 2014 Ali 55 W.P.No,2421/Asif Ali s/o AmeerStore Clerk2006 2014 Shah 56 W.P.No,2410/Muhammad Ali s/oStore Clerk2006 2014 Muhammad Afzal 57 W.P.No,2408/Muhammad Safdar s/oMachinery2006 2014 Mulazim HussainHelper 58 W.P.No,2409/ 2014Shafaat Ali s/o Rafaqat AliLaboratory Assistant1997 59 W.P.No,2768/Zulfiqar s/o Allah DittaFieldman Jan-01 2014 60 W.P.No,2431/Muhammad Akram s/oBeldar 1999 2014 Muhammad Eesa 61W. P.
No,2777/Mehmood Ali s/oFumigation17-9-1999 2014 Manzoor AhmadHelper 62 W.P.No,2426/Manzoor Hussain s/oAssistant 1998 2014Muhammad RamzanForeman (Chem)
63 W.P.No,2445/Rao Naeem Akhtar s/oStoreman 2001 2014 Muhammad Hafeez 64 W.P.No,2449/Muhammad Irfan s/oStore Clerk1992 2014 Muhammad Idrees 65 W.P.No,2432/Ramzan Nisar s/oLab.
Assistant/1993 2014 Irshad Hussain Store Clerk 66 W.P.No,2070/Nasir Mehmood s/oWorker 31-10-2006 2014 Amanullah 67 W.P.No,2067/Bashir Masih s/o RorhaWorker 31-10-2006 2014 Masih 68 W.P.No,2438/Rashid Abbas s/oWelder 2000 2014 Irshad Hussain 69 W.P.No,2419/Riaz Hussain s/oElectrician1994 2014 Muhammad Shafi 70W. P.
No,2080/Abdul Shakoor s/oFieldman 1-7-2009 2014 Manzoor Hussain 71 W.P.No,8209/Muhammad Yasin s/oAssistant 1995 2014 Barkat All Mechanic 72 W.P.No,2443/Jamshed Afzal s/oStore Clerk2006 2014 Afzal Haq 73 W.P.No,2025/Muhammad Sarwar s/oWorker 31-10-2006 2014 Bashir Ahmad 74 W.P.No,2417/Muhammad Riaz s/oBeldar 10-12-1994 2014 Haq Nawaz 75W. P.
No,2774/Tahir Nadeem s/oMechanic June, 2004 2014 Muhammad RamzanHelper 76 W.P.No,2420/Nazir Ahmad s/oStore Clerk18-3-1993 2014 Ghulam Sarwar 77 W.P.No,2770/ 2014Saleem Masih s/o Yousaf MasihFumigation HelperJan-98 78 W.P.No,2771/Muhammad RamzanFieldman Jan-88 2014 s/o Abdul Majeed 79 W.P.No,2415/Nazir Ahmad s/o BaghBeldar 1986 2014 Ali 80 W.P.No,2413/Muhammad Imran skiLaboratory 2005 2014 Habibullah Assistant 81 W.P.No,2073/Muhammad Iqbal s/oWorker 1-4-2008 2014 Ghulam Muhammad 82 W.P.No,2424/Manzoor Hussain s/oHelper 7-4-1983 2014 Charagh 83 W.P.No,2772/Abdul Hafeez s/oMechanic Cold15-6-2002 2014 Muhammad SharifStorage 84 W.P.No,2071/Imam Bukhsh s/o HayWorker 3-1-2007 2014 Nawaz 85 W.P.No,2411/Basharat Hussain s/oStore Clerk2006 2014 Ali Asghar 86 W.P.No,2015/Sakina Bibi w/o AmirWorker 2-3-2007 2014 Masih 87 W.P.No,2066/Amjad Ali s/o Worker 31-10-2006 2014 Muhammad Anwar 88 W.P.No,2412/Muhammad Nawaz s/oBeldar/Driver2-1-1991' 2014 Haji Muhammad Shafi 89 W.P.No,2442/Rana MuhammadBeldar 2003 2014Arashad s/o Rana Abdul Sattar 90 W.P.No,10138/Sajid Ali s/o NaseerTurbine 20-3-2007 2014 Ahtnad Operator 91 W.P.No,2082/Yasir Abbas s/o SyedStore Man 1-2-2010 2014 Nasir Hussain 92 W.P.No,2081/Muhammad Akbar s/oWorker 31-10-2006 2014 Allah Yar 93 W.P.No,2072/Nasir Abbas s/o NoorWorker 31-10-2006 2014 Muhammad
2. The petitioners are aggrieved of the judgment dated 23-4-2009, passed by the learned Labour Court, and the learned Labour Appellate Tribunal, Punjab-II, Multan dated 4-6-2013, whereby the grievance petitions filed by the respondents under the labour laws, were accepted and the petitioners have been directed to regularize the services of the private respondents.
Although the respondents are working against different posts, but the common grievance voiced, pertains to their regularization into service.
3. The respondents, under section 41 of the Industrial Relations Act, 2008, filed grievance petitions to the effect, that the respondents are working with the petitioners corporation on the work charge basis from the last more than 4 to 28 years, the respondents have completed the statutory period given in the law satisfactorily, they were appointed against a regular post and by afflux of time, have attained the status of permanent/regular employee.
4. The grievance petitions filed by the respondents were vehemently contested by the petitioners through a detailed reply. In reply, the petitioners have admitted that the respondents are working in the corporation from the last many years and originally they were appointed on work charge basis for a specific period and their services have been extended from time to time by issuing new appointment letters orders before the completion of 90 days.
5. The learned Labour Court after recording evidence of the parties and hearing the arguments, accepted the grievance petitions filed by the respondents and directed the petitioners corporation to regularize the services of the respondents.
6. Being aggrieved of the order passed by the learned Labour Court, the petitioners filed an appeal before the learned Punjab Labour Appellate Tribunal-II, Multan, which was dismissed through an elaborative judgment and affirmed the judgment passed by the learned Labour Court, directing the petitioners corporation to regularize the services of the respondents. Hence this Constitutional petition.
7. Undeniably, the respondents are working as workers/workmen with the petitioners corporation from the last four to twenty-eight years without any break in service, the respondents are getting monthly salary as mentioned in the appointment letters along with the facility of leave, and as evident from the record, nothing adverse has been reported against them during this period. It is also not denied by the petitioners, that the nature of the job of the respondents is manual, therefore, the respondents are workers/workmen and fully covered under the labour laws.
8. 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.
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. In this case, the respondents are working against the same post and Project from the last four =to twenty-eight 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.
11. 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 petitioners corporation 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 petitioners corporation instead of involving them in litigation, should have regularized the services of the respondents.
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 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), this petition was filed by the petitioners corporation i,e, Punjab Seed Corporation. 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.
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 25-6-1980 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. 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. 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 nonresidential 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."
14. 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 15-8-2005 when he was informed that his services had been terminated w,e,f, 142004. 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."
15. The other esteemed judgments applicable in this case are as under:-
(1) Pakistan International Airlines v. Sindh 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).
16. 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.
17. The learned counsel for the petitioners, during his arguments, mainly relied upon the service rules of the petitioners corporation, formulated in the year 2007. It is pertinent to mention here, that the petitioners did not plead this question before the forum below, therefore, the petitioners are precluded by law to agitate the same. And even otherwise, if the petitioners, as argued by the learned counsel for the petitioners, have formulated the service rules to run its domestic affairs, could only be enforced prospectively and not retrospectively and even otherwise, those rules do not determine the status of a temporary workman/worker and its regularization, as the said question can only be decided under the provisions of Standing Orders Ordinance 1 (b) (c) of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968.
18. The arguments advanced by the 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 finding 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 lqbal (PLD 2003 Supreme Court 52), 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).
19. The learned counsel for the petitioners 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 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. This Constitutional petition has been filed against the concurrent findings on facts as well as on law recorded by the learned forums below, although the learned counsel for 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, the petitioners, in view of the facts and circumstances of the case, are not entitled for any discretionary relief.
21. Resultantly, the judgment passed by the learned lower forum is affirmed and the writ petitions are dismissed with no order as to cost.