' ALI AKBAR QURESHI, J.--- This constitutional petition is preferred against the judgment dated 07.03.2012 and 12.07.2010 passed by the learned forum below, whereby the grievance petition under Section 46 of the Industrial Relations Ordinance, 2002, filed by respondent No,1 was allowed and the petitioners/ employer was directed to regularize the services of respondent No,1 from 29.06.1993.
2. Shortly, the facts as depict from the record are, that respondent No,1 was appointed as Assistant Technical Staff on 01.04.1993 as daily wager; the respondent served the department for a long period by successfully completing the initial period of nine (9) months, as provided by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and by afflux of time attained the status of regular/permanent employee, but he was not formally declared as a permanent employee. The respondent, being aggrieved, filed a grievance petition under Section 46 of the Industrial Relations Ordinance, 2002.
3. The learned Labour Court, after receiving the reply of the petitioners, recorded evidence of the parties and finally accepted the grievance petition by directing the petitioners to regularize the services of the respondent from 29.06.1993.
4. Being aggrieved thereof, the petitioner filed an appeal before the Punjab Labour Tribunal, which was dismissed and the order passed by the learned Labour Court was upheld.
5. Learned counsel for the petitioners has mainly argued, that the grievance petition filed by the respondent before the learned Labour Court was hopelessly barred by time but this aspect of the case has totally been ignored by the learned forums below. Also submitted, that the mandatory requirement to serve the grievance notice before filing the grievance petition has not been complied with, therefore, the grievance petition is liable to be dismissed on this score alone.
' However, the learned counsel for the petitioners has not denied that the respondent initially was appointed as Assistant Technical Staff on 01.04.1993 as daily wager.
6. Conversely, learned counsel for respondent No,1 submits, that both the learned forums below have concurrently concluded, that the respondent is entitled to be regularized from the date of his initial appointment as daily wager i,e, 01.04.1993.
7. Heard. Record perused.
8. Undisputedly the respondent was appointed as Assistant Technical Staff on 01.04.1993 as daily wager and continuously served the department. It is also not denied, that the respondent was appointed against a permanent post and permanent project and successfully completed the initial period of nine months as given in Industrial Relations Ordinance, 2002, therefore, the question which requires consideration and adjudication, as to whether the respondent was entitled to be regularized into service from the date of his initial appointment or not. Learned counsel for the petitioners has relied upon Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153), Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (1975 SCM R 304), Independent Newspaper Corporation (Private) Ltd. v. Punjab Labour.
Appellate Tribunal and others (2013 SCM R 190), Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCM R 100) and Khadim Hussain v. The Secretary, Irrigation and Works, Lahore (2006 PLC 8).
9. The record reveals, that the witnesses appeared on behalf of the petitioners categorically stated and admitted while appearing in the witness box before the learned Labour Court, that the respondent was appointed initially as Assistant Technical Staff, on daily wages on 01.04.1993, and still working in the petitioner's establishment, therefore, under the settled law, the respondent has attained the status of a permanent employee from the day he completed the initial periotl of nine months, therefore, the petitioners had no option but to regularize the services of the respondent from the date he was initially inducted into service.
A specific question was put during the course of arguments to the learned counsel for the petitioners, that why the respondent was not regularized into service from the date of his initial appointment, the learned counsel could not offer any satisfactory explanation and even in the record nothing is available, therefore, sufficient material is available on the file to hold, that the respondent is entitled to be regularized into service.
10. Further, 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 respondent and his regularization by afflux of time and law applicable thereon, requires consideration.
11. 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.]"
12. In this case, the respondent is 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 respondent is working, is of permanent nature, thus, the denial of the petitioners to regularize the services of the respondent, is not permissible in law.
13. It is not denied, that the respondent is working from the last many years, and suffice to hold, that the respondent is needed to the petitioners establishment.
14. 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 workers from their legal rights, 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 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."
15. 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) ther'eof. 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."
16. In another judgment cited as Tehsil Municipal Administration v. Muhammad Amir (2009 PLC 273), the status of a workman has further been elaborated 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."
17. 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)
WAPDA and others v. Khanimullah and others (2000 SCM R 879).
18. The arguments advanced by the learned counsel for the respondent 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 law. 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 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. Jafar 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. 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 petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the findings of forums below the petitioners will have to point out the illegality committed by the learned forums, and in this case the petitioners have failed to point out any such legal infirmity, 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 or equitable relief.
20. Resultant, the judgment passed by the learned lower forums is affirmed and the writ petition is dismissed with no order as to cost.