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:- {{TABLE}} Sr. No. Writ Petition Nos. Names of Respondents/ Employees Designation Date of appointment
1. W.P.No.10136/2014 Muhammad Waheed s/o Haji Allah Yar Turbine Operator 02.02.2008
2. W.P.No.8210/2013 Dilber Hussain s/o Muhammad Siddique Machinery Helper 1985
3. W.P.No.10139/2014 Javaid Iqbal s/o Ghulam Muhammad Bhatti Fieldman 2008
4. W.P.No.10135/2014 Muhammad Ramzan s/o M. Rafiq Kamboh Fieldman 1995
5. W.P.No.2769/2014 Khalid Mehmood s/o Muhammad Din Fieldman 1998
6. W.P.No.2065/2014 Faisal Ahmad Shahzad s/o Muhammad Zulfiqar Worker 2.3.2007
7. W.P.No.2078/2014 Muhammad Iqbal s/o Allah Rakha Worker 3.5.2008
8. W.P.No.2780/2014 Jamshed Ali s/o Rao Shamshad Ali Security Guard 1993 9.
10. W.P.No.2430/2014 Wali Muhammad s/o Sardar Khan Helper 1988
11. W.P.No.10134/2014 Sadiq Hussain s/o Khadim Hussain Fieldman 2007
12. W.P.No.2075/2014 Muhammad Afzal s/o Noor Muhammad Worker 31.10.2006
13. W.P.No.2436/2014 Rashid Yousaf s/o Kanwar Muhammad Khan Welder 2000
14. W.P.No.2439/2014 Zahoor Hussain s/o Muhammad Chiragh, Assistant Mechanic, 1.1.1990 Muhammad Afzal s/o Nazir Ahmad, Assistant Mechanic, 1.1.2000 Muhammad Saleem s/o Muhammad Jamil, Machinery Helper, 1.1.1999 Altaf Hussain s/o Fateh Muhammad Welder 1.1.1998
15. W.P.No.2437/2014 Muhammad Nadeem s/o Muhammad Bashir Tube well Operator 2000
16. W.P.No.2447/2014 Sabir Ali s/o Muhammad Yaqoob Sultani Carpenter 1985
17. W.P.No.2446/2014 Altaf Hussain s/o Fida Hussain Beldaar 1993
18. W.P.No.2429/2014 Saeed Ahmad Khan s/o Muhammad Yousaf Khan Store Clerk 1998
19. W.P.No.2428/2014 Muhammad Aslam s/o Nasir Khaqn Beldar 1.6.2004
20. W.P.No.2434/2014 Abdul Haq s/o Malik Ghulam Qasim Machinery Helper 1999
21. W.P.No.2440/2014 Zafarullah s/o Abdul Aziz Mechanic/H elper 07.12.1982
22. W.P.No.2435/2014 Ghulam Murtaza s/o Muhammad Nawaz Security Guard 21.01.1998
23. W.P.No.2433/2014 Abdul Sattar s/o Muhammad Shafi Beldar 2001
24. W.P.No.2441/2014 Maqbool Hussain s/o Muhammad Bakhsh Cook 16.10.2006
25. W.P.No.2767/2014 Khadim Hussain s/o Murad Ali Mechanic Helper 1996
26. W.P.No.2076/2014 Liaqat Ali s/o Muhammad Rafiq Worker 31.10.2006
27. W.P.No.2074/2014 Umar Hayat s/o Noor Muhammad Worker 31.10.2006
28. W.P.No.2069/2014 Liaqat Ali s/o Manzoor Hussain Worker 03.05.2008
29. W.P.No.2068/2014 Shahid Raza s/o Sher Muhammad Field Man 01.0.1.2011
30. W.P.No.2444/2014 Muhammad Younas s/o Muhammad Mansha Helper Assistant Mechanic 1997
31. W.P.No.2418/2014 Muhammad Shahid s/o Muhammad Ramzan Cleaner/ Helper 16.10.2006
32. W.P.No.2414/2014 Shabbir Hussain s/o Abdul Hameed Store Clerk 1999
33. W.P.No.2764/2014 Abu Nassar s/o Muhammad Akram Security Guard April, 2002
34. W.P.No.2085/2014 Abdul Shakoor s/o Manzoor Hussain Field Man 01.01.2008
35. W.P.No.2083/2014 Muhammad Iqbal s/o Wahid Bakhsh Worker 03.05.2008
36. W.P.No.2084/2014 Muhammad Ramzan s/o Bashir Ahmad Worker 31.10.2006
37. W.P.No.2416/2014 Mashooq Ali s/o Lal Din Mechanic/H elper 1999
38. W.P.No.2425/2014 Nassarullah s/o Abdul Aziz Welder January, 1994
39. W.P.No.2766/2014 Allah Ditta s/o Hamid Khan Fumigation helper 12.09.2001
40. W.P.No.2423/2014 Mazhar Khan s/o Ghulam Rasool Electrician 16.10.2006
41. W.P.No.2422/2014 Sajjad Hussain s/o Soba Khan Mortar Mate 1992
42. W.P.No.2775/2014 Noor Muhammad s/o jamal Din Security Guard 1998
43. W.P.No.2776/2014 Bashir Ahmad s/o Sarang Khan Naib Qasid/ Security Guard Jan-91
44. W.P.No.2779/2014 Muhammad Saeed s/o Muhammad Shafi Store Clerk 1.5.2002
45. W.P.No.2778/2014 Asif Bilal s/o Peer Muhammad Security Guard Jauary, 2000
46. W.P.No.2077/2014 Syed Najam ul Hassan s/o Fida Hussain Worker 31.10.2006
47. W.P.No.2079/2014 Muhammad Ajmal s/o Manzoor Ahmad Worker 31.10.2006
48. W.P.No.10143/2014 Abdul Majeed s/o Zulfiqar Ali Fieldman 2009
49. W.P.No.8207/2014 Pervaiz Ahmad s/o Sardar Ahmed Tube well Operator 1988
50. W.P.No.10142/2014 Ejaz Ahmad s/o Manzoor Ahmad Fieldman 2006
51. W.P.No.10140/2014 Mushtaq Ahmad s/o Noor Muhammad Sial Fieldman 1997
52. W.P.No.10137/2014 Muhammad Aslam s/o Haji Allah Yar Driver 2010
53. W.P.No.10141/2014 Khizar Hayat s/o Haq Nawaz Driver 2000
54. W.P.No.2765/2014 Pervaiz Khan s/o Gull Member Khan Fieldman Feb-98
55. W.P.No.2773/2014 Ijaz Ahmad s/o Ameer Ali Driver 1996
56. W.P.No.2421/2014 Asif Ali s/o Ameer Shah Store Clerk 2006
57. W.P.No.2410/2014 Muhammad Ali s/o Muhammad Afzal Store Clerk 2006 58.
59. W.P.No.2409/2014 Shafaat Ali s/o Rafaqat Ali Laboratory Assistant 1997
60. W.P.No.2768/2014 Zulfiqar s/o Allah Ditta Fieldman Jan-01
61. W.P.No.2431/2014 Muhammad Akram s/o Muhammad Eesa Beldar 1999
62. W.P.No.2777/2014 Mehmood Ali s/o Manzoor Ahmad Fumigation Helper 17.09.1999
63. W.P.No.2426/2014 Manzoor Hussain s/o Muhammad Ramzan Assistant Foreman
(Chem) 1998
64. W.P.No.2445/2014 Rao Naeem Akhtar s/o Muhammad Hafeez Storeman 2001
65. W.P.No.2449/2014 Muhammad Irfan s/o Muhammad Idrees Store Clerk 1992
66. W.P.No.2432/2014 Ramzan Nisar s/o Irshad Hussain Lab. Assistant/ Store Clerk 1993
67. W.P.No.2070/2014 Nasir Mehmood s/o Amanullah Worker 31.10.2006
68. W.P.No.2067/2014 Bashir Masih s/o Rorha Masih Worker 31.10.2006
69. W.P.No.2438/2014 Rashid Abbas s/o Irshad Hussain Welder 2000
70. W.P.No.2419/2014 Riaz Hussain s/o Muhammad Shafi Electrician 1994
71. W.P.No.2080/2014 Abdul Shakoor s/o Manzoor Hussain Fieldman 1.7.2009
72. W.P.No.8209/2014 Muhammad Yasin s/o Barkat Ali Assistant Mechanic 1995
73. W.P.No.2443/2014 Jamshed Afzal s/o Afzal Haq Store Clerk 2006
74. W.P.No.2025/2014 Muhammad Sarwar s/o Bashir Ahmad Worker 31.10.2006
75. W.P.No.2417/2014 Muhammad Riaz s/o Haq Nawaz Beldar 10.12.1994
76. W.P.No.2774/2014 Tahir Nadeem s/o Muhammad Ramzan Mechanic Helper June 2004
77. W.P.No.2420/2014 Nazir Ahmad s/o Ghulam Sarwar Store Clerk 18.03.1993
78. W.P.No.2770/2014 Saleem Masih s/o Yousaf Masih Fumigation Helper Jan-98
79. W.P.No.2771/2014 Muhammad Ramzan s/o Abdul Majeed Fieldman Jan-88
80. W.P.No.2415/2014 Nazir Ahmad s/o Bagh Ali Beldar 1986
81. W.P.No.2413/2014 Muhammad Imran s/o Habibullah Laboratory Assistant 2005
82. W.P.No.2073/2014 Muhammad Iqbal s/o Ghulam Muhammad Worker 1.4.2008
83. W.P.No.2424/2014 Manzoor Hussain s/o Charagh Helper 7.4.1983
84. W.P.No.2772/2014 Abdul Hafeez s/o Muhammad Sharif Mechanic Cold Storage 15.06.2002 85.
86. W.P.No.2411/2014 Basharat Hussain s/o Ali Asghar Store Clerk 2006
87. W.P.No.2015/2014 Sakina Bibi w/o Amir Masih Worker 02.03.2007
88. W.P.No.2066/2014 Amjad Ali s/o Muhammad Anwar Worker 31.10.2006
89. W.P.No.2412/2014 Muhammad Nawaz s/o Haji Muhammad Shafi Beldar/ Driver 02.01.1991
90. W.P.No.2442/2014 Rana Muhammad Arashad s/o Rana Abdul Sattar Beldar 2003
91. W.P.No.10138/2014 Sajid Ali s/o Naseer Ahmad Turbine Operator 20.03.2007
92. W.P.No.2082/2014 Yasir Abbas s/o Syed Nasir Hussain Store Man 01.02.2010
93. W.P.No.2081/2014 Muhammad Akbar s/o Allah Yar Worker 31.10.2006
94. W.P.No.2072/2014 Nasir Abbas s/o Noor Muhammad Worker 31.10.2006. {{TABLE}}
2. The petitioners are aggrieved of the judgment dated 23.04.2009, passed by the learned Labour Court, and the learned Labour Appellate Tribunal, Punjab-II, Multan dated 04.06.2013, 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 alongwith 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.
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. 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."
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 15.08.2005 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."
15. 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).
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 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).
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.