Shujaat Ali Khan, J: - Through this single judgment I intend to decide the petitions mentioned in Schedule-A and Schedule-B, given below, having commonality of law and facts.
SCHEDULE-A Sr. #Case No.Date of impugned judgment rendered by Punjab Labour Court No.7, Gujranwala.Date of impugned judgment rendered by Punjab Labour Appellate Tribunal, Lahore.
1.W.P.No.2667/2012 (this petition)15.10.2011 20.12.2011
2. W.P.No.2668/2012 15.10.2011 20.12.2011
3. W.P.No.39166/2015 26.11.2014 09.02.2015
4. W.P.No.39357/2015 20.02.2013 14.02.2015 SCHEDULE-B Sr. #Case No.Date of impugned judgment rendered by Punjab Labour Court No.2, Lahore.Date of impugned judgment rendered by Punjab Labour Appellate Tribunal, Lahore.
1 W.P.No.14637/2012 31.01.2011 08.05.2012.
2. W.P.No.19676/2012 31.01.2011 08.05.2012.
2. Shorn of unnecessary details, private respondents (employees) in petitions enumerated in Schedule-A were appointed against different posts on Daily Wages. As despite serving the department (TMA) for many years their services were not being regularized, they filed Grievance Petitions before Punjab Labour Court No.7, Gujranwala which were allowed on the dates mentioned in column No.3 of Schedule-A against which the department filed independent appeals before the Punjab Labour Appellate Tribunal, Lahore (the Tribunal) but without any success as the same were dismissed through judgments passed on the dates mentioned in column No.4 of Schedule-A.
Insofar as petitions figuring in Sched ule-B are concerned, Tariq Amanoil (employee), petitioner in W.P.
No.19676/2012, filed Grievance Petition before Punjab Labour Court No.2, Lahore against termination of his services. During pendency of proceedings before the Labour Court, Town Muni cipal Officer concerned entered appearance and gave statement to the effect that if Tariq Amanoil relinquished his claim qua back benefits the department would have no objection against his reinstatement in service. The offer made by the departmental representative was accepted by Tariq Amanoil and the Grievance Petition filed by him was disposed of through order , dated 05.11.2008. Instead of reinstating Tariq Amanoil in service, the department issued a letter appointing him on Daily Wages afresh for 89 days w.e.f. 21.07.2009. As the departmental authorities did not abide by their commitment given before the Labour Court, the petitioner filed a Petition before the Labour Court for implementation of order , dated 05.11.2008 which was disposed of on 02.11.2009 directing the departmental authorities to implement order , dated 05.11.2008, within one month. Again instead of complying with the order dated 02.11.2009, the departmental authorities filed an appeal before the Tribunal which was disposed of with the observation that the Tribunal had nothing to do with the implementation of the order passed by the Labour Court.
Thereafter , Tariq Amanoil filed second petition for implementation of orders, dated 05.11.2008 and 02.11.2009 which was disposed of by the labour court through order , dated 31.01.201 1, with the observation that as services of Tariq Amanoil had already been restored, order dated 05.11.2008 stood complied with. Being dissatisfied with order dated 31.01.201 1, Tariq Amanoil filed a revision petition before the Tribunal seeking declaration to the effect that he be treated as regular/permanent employee in terms of order dated 05.11.2008. The said revision petition was accepted by the Tribunal vide judgment, dated 08.05.2012, declaring him as permanent employee but no order regarding back benefits was passed by the Tribunal. Being aggrieved of non-awarding of back benefits by the Tribunal, Tariq Amanoil has filed W.P. No.19676/2012 whereas the department has put a challenge to orders dated 31.01.201 1 and 08.05.2012 passed by the Labour Court and the Tribunal respectiv ely through W.P.No.14637/2012 subject matter of Schedule-B.
3. Dr. Ehsan ul Haq, Advocate assisted by Mr. Muhammad Arif, Legal Advisor TMA in support of this petition as well as W.P. Nos.39166/2015, 14637/2012, 39357/2015 and 2668/2012 and while opposing W.P. No.19676/2012 submits that both the fora below failed to consider that as terms & conditions of the employees were governed under the Punjab Local Councils Servants (Service) Rules, 1997 (hereinafter to be referred as the Service Rules 1997) jurisdiction of the Labour Court was not attracted; that as neither T.M.A. falls within the definition of industry nor commercial establishment the work-charge employees could not approach any forum established under the Labour Laws; that Zamir Ali, respondent No.3 in W.P. No.39166/2015 was never appointed as Tubwell Operator rather he was working as Water Carrier but the Labour Court has ordered the department to regularize his services as Tubewell Operator; that the employees being daily wagers were not entitled for regularization mere on account of length of their service; that the provisions of the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (hereinafter to be referred as the Ordinance 1968) were not attracted in the cases filed by employees before the Labour Court; that the Tribunal dismissed appeals filed by the department on the point of limitation thus the merits of the cases were not dilated upon. In support of his contentions, learned counsel has relied upon the cases reported as Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan (2013 SCMR 13) and Province of Punjab and 3 others v . Gul Hassan and 33 others (1992 PLC 924 ).
4. Raja Kamran Aslam, Advocate while opposing the submissions made by learned counsel representing TMA and in support of W.P. No.19676/2012 submits that as order , dated 05.11.2008, was passed in view of the statement by the Tehsil Municipal Officer, the departmental authorities were bound to reinstate him in service on regular basis from the said date; that mala fide on the part of the departmental authorities is manifest from the fact that in utter disregard to the spirit of order dated 05.11.2008 they re-appointed Tariq Amanoil on daily wages for 89 days; that though the Labour Court was bound to ensure implementation of orders, dated 05.11.2008 and 02.11.2009, but while deciding second petition filed by Tariq Amanoil for implementation of above orders the Labour Court illegally and unlawfully observed that as he was reinstated in service order dated 05.11.2008 stood implemented; that though the Tribunal while disagreeing with the findings of the Labour Court contained in order , dated 03.01.201 1, declared Tariq Amanoil as permanent employee w.e.f. 05.11.2008 but did not pass any order regarding back benefits and that statement of Tariq Amanoil regarding relinquishment of his back benefits was in line with the statement made by the Tehsil Municipal Officer before the Labour Court during the proceedings in the Grievance Petition filed by him, therefore, the same could not be used against him in the subsequent proceedings.
5. Mr. Sheraz Faiz Bhatti, Advocate in addition to adopting the arguments advanced by Raja Kamran Aslam, Advocate while controverting the stance of TMA that Zamir Ali (respondent No.3 in W.P. No.39166/2012) was never appointed as Tubewell Operator , states that the said contention of the learned counsel stands nullified from the contents of the affidavit tendered by Zamir Ali in evidence as well as salary slips and order , dated 22.04.201 1, issued by the T.M.O. Gujrat and those which were got exhibited as Exh.P/7 to Exh.P/12 and that TMA has concealed material facts from this Court as the documents of their choice have been appended whereas those adversely af fecting their case have been withheld.
6. Mr. Zafar Iqbal Sial Advocate, representing respondent No.1 in this petition submits that neither the department nor the designation is relevant to determine as to whether a person falls within the definition of workman or not rather the duties being performed by such person are of vital importance and that as the employees are performing duties of manual nature the jurisdiction of the Labour Court was aptly attracted. Relies on National Bank of Pakistan and another v. Anwar Shah and others (2015 SCMR 434) and Pakistan Telecommunication Company Limited (PTCL) through General Manager and 2 others v . Azeem Kibria Bhatti and 2 others (2016 PLC 491 ).
7. I have given anxious consideration to the legal formulations put forward by learned counsel for the parties in support of their respective pleas in addition to scanning the documents annexed with this petition as well as the case-law cited at the bar .
8. The foremost question involved in the present case is as to whether the employees could approach the Labour Court or not. While arguing the said point, learned counsel representing the TMA, while referring to the Service Rules 1997 has relied upon the first proviso to section 1(4) of the Ordinance 1968 which for convenience of reference is reproduced herein below:- "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein:"
From the afore-quoted proviso it is obvious that applicability of said proviso is subject to two conditions viz. the industrial and commercial establishment is being run under the authority of the Federal or a Provincial Government and the terms and conditions of service of its employees are being governed under the statutory service rules.
Firstly , taking up the preposition as to whether the Tehsil Municipal Administration is carrying on its business under the authority of the Federal or any Provin cial Government I am of the view that to resolve the said controversy a bird's eye view of the legislative pieces which were introduced from time to time to streamline the affairs of the local government is inevitable. The Service Rules 1997, being pressed into service by the learned counsel for the TMA, were framed in terms of section 167 of the Punjab Local Government Ordinance, 1979 (the Ordinance 1979) . The said enactment was succeeded by the Punjab Local Government Ordinance, 2001 (the Ordinance 2001).
According to section 42-A(8) of the Ordinance 1979 the Board was declared a body corporate having perpetual succession and a common seal with power to acquire hold and transfer property , moveable and immovable, and shall, by its name sue or be sued. Further , as per section 42-B(4) of the Ordinance 1979, the Punjab Local Government Board was empowered to recruit, appoint, transfer or to take disciplinary action in respect of any member of the Punjab Local Council Service without any intervention either by the Federal or a Provincial Government. Furthermore, the Board was vested with the jurisdiction to employ officers and servants on the terms and conditions of its choice without intervention of the government. It is imperative to note that Tehsil Municipal Administration was created by virtue of section 49 of the Ordinance 2001 according to which Tehsil Municipal Administration was also declared a body corporate. The ultimate result of the discussion, undertaken in this paragraph, is that TMA being an independent entity does not carry its business under the direct authority of Federal or a Provincial Government thus the same is not covered under the proviso referred supra. In this regard, I also stand guided by the law laid down in the cases reported as Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 SC 207), Agriculture Workers' Union Balochistan v. The Registrar of Trade Unions and others (1997 SCMR 66), Lahore Development Authority and others v. Abdul Shafiq and others (1992 PLC 1214) and The Management of Municipal Committee Mianwali v.
The General Secretary, Municipal Muharrir's Union and another (PLD 1968 LHR 395).
9. Now taking up second limb of the controversy as to whether the services of the employees having been controlled under the Service Rules 1997 they were debarred to approach the Labour Court, I am of the view that there is no cavil with the preposition that the Service Rules 1997 are statutory in nature but the question is as to whether the same are applicable to the employees before this Court or not. To satisfy myself I have gone through the Service Rules, 1997 which are silent about the recruitment of daily-wage employees inasmuch as neither any via media for induction of such persons has been laid down nor there is any mechanism for their regularization.
Further, According to section 2(mmm) of the Ordinance 2001, a workman includes a worker as defined in the Punjab Industrial Relations Act, 2010. Moreover, this issue has already been put to rest by the apex Court of the country in the case reported as Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547). In the said case while clinching the issue, under discussion, the august Supreme Court has inter-alia concluded as under: - "5. Similarly, there are so many other such like persons who are working in different organizations of Punjab Building Department for the last so many years but as work-charged employees, although the nature of job assigned to them has been continuing for more than the period of 9 months in terms of paragraph 1(b) of the Schedule attached to the Industrial and Commercial Employment (Standing Order)
Ordinance, 1968, which provides as under:-- "(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, 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."
Learned counsel relied upon the judgme nt in Gul Hassan's case (ibid), relevant para wherefrom is reproduced hereinbelow:-- "4. Rules 1.107, 1.108 of the Buildings and Roads Department Code(sic.) deal with the working conditions of work-charge establishment in extenso. In view of such statutory rules being in existence and applicable to the respondents, the application, invocation and reference to the provisions of the Standing Orders Ordinance was out of place and misdirected. The work-charged establishment cannot be declared permanent under the rules applicable to them, nor can they be granted all the benefits available to the permanent employees including seniority, promotion and service being treated as pensionable etc."
6. In the above judgment it has been held that work- charged employees are working in the establishment of State Administration, therefore, they are not governed by Standing Orders Ordinance, 1968. The said judgment is distinguishable because it was not decided on merit rather disposed of on the ground that circular was issued mentioning therein that employees not exceeding 50% of the work-charged establishment were to be so absorbed starting without those who have rendered the longest service on work-charged established. It was also observed therein that in such circumstances, the employees have to seek absorption on their own turn and in terms offered by the Government and not through Constitutional jurisdiction."
If the matters of the employees are considered on the touchstone of the afore-quoted judgment there leaves no ambiguity that the employees being workmen on the dint of the duties being performed by them, they were governed under the principle of master and servant, thus, their petitions before the Labour Court were rightly held maintainable.
It is very interesting to note that on the one hand the TMA authorities have objected against the jurisdiction of Labour Court on the ground that the terms & conditions of service of the employees were governed under statutory rules and on the other, during the course of cross-examination Tariq Javed (RW-1) showed his inability to specify the service regulations applicable to the employees rather he stated that in this regard only the Advocate would be in a better position to clarify. He further admitted that Amjad Hussain (respondent No.1 in this petition) was serving the department since the year 1987. The Hon'ble Supreme Court of Pakistan, in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), while taking serious note of the non- regularization of daily-wage employees by the government institutions, despite their length of service spreading over many years, has inter-alia observed as under: "15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic 'justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to 'have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right." (emphasis provided).
10. The next crucial point involved in these petitions is as to whether TMA falls within the category of industrial or commercial establishment as defined under the Ordinance 1968 or not. In this regard, I am of the view that to resolve the said controversy a survey of Labour Laws introduced by the Legislature from time to time is vital. Firstly , taking up the Ordinance, 1968 I have observed that according to section 2(i) of the said Ordinance "workman" means "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical work for hire or reward" . The expression "establishment" has been defined in clause (f)(v) of section 2 of the Ordinance 1968 as "the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry". Further, as per section 2(bb) of the Ordinance 1968 the expression "construction industry" means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundations of, any such work or structure". In the Factories Act 1934, in section 2(h) thereof, the word "worker" has been defined as "a person employed directly or through an agency whether for wages or not in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on". On the touchstone of the various definitions, discussed in foregoing lines, I venture to have cursory glance over the functions of TMA.
Section 54 of the Ordinance 2001 deals with functions of TMA which for convenience of reference is reproduced herein below:- "54. Functions and powers of the Tehsil Municipal Administration. - (1) The functions and powers of the Tehsil Municipal Administration shall be to-
(a) prepare spatial plans for the tehsil in collaboration with Union Councils, including plans for land use, zoning and functions for which the T ehsil Municipal Administration is responsible;
(b) seek approval of the Tehsil Council to the spatial plans prepared by it after due process of dissemination and public enquiry , incorporating modifications on the basis of such inquiry;
(c) execute and manage development plans;
(d) exercise control over land-use, land-subdivision, land development and zoning by public and private sectors for any purpose, including for agriculture, industry, commerce markets, shopping and other employment centers, residential, recreation, parks, entertainment, passenger and transport freight and transit stations;
(e) enforce all municipal laws, rules and bye-laws governing its functioning: Provided that the Tehsil Municipal Administration may, with the approval of Tehsil Council, exempt any Union from application of any specific provision of the bye-laws made by the T ehsil Council under this Ordinance: Provided further that the Government may, on the recommendations of Tehsil Municipal Administration through District Government, exempt any Union or a part thereof from the application of rules relating to land use, building control, tax on property or in any other matter dealing with municipal services: Provided also that such exemption shall not extend to any organised housing schemes, zoning of industrial and commercial areas, and matters concerning environmental protection;
(f) prevent encroachments;
(g) regulate affixing of sign-boards and advertisements;
(h) provide, manage, operate, maintain and improve the municipal infrastructure and services, including-
(i) water supply and control and develop ment of water sources, other than systems maintained by the Union and Village Councils;
(ii) sewage and sewage treatment and disposal;
(iii) storm water drainage;
(iv) sanitation and solid waste collection and sanitary disposal of solid, liquid, industrial and hospital wastes;
(v) roads and streets, other than roads falling under the jurisdiction of, and maintained by, the District Government or Government and streets maintained by the Union Administration or V illage Council;
(vi) traffic planning, engineering and management including traffic signaling systems, signs on roads, street markings, parking places, transport stations, stops, stands and terminals;
(vii) street lighting;
(viii) firefighting;
(ix) parks, playgrounds, open spaces and arboriculture; and
(x) slaughter houses;
(i) compile information provided by Union and V illage Councils of prioritized projects in the tehsils;
(j) prepare budget, long term and annual municipal development programmes in collaboration with the Union Councils, under the directions of T ehsil Nazim;
(k) maintain, with the assistance of the District Government, Union and Village Councils, a comprehensive data base and information system for Tehsil Municipal Administrati on and provide public access to it on nominal charges;
(l) propose taxes, cesses, user fees, rates, rents, tolls, charges, surcharges, levies, fines and penalties under Part- III of the Second Schedule for approval of the T ehsil Council and notify the same after such approval; (m)collect approved taxes, cess, user fees, rates, rents, tolls, charges, fines and penalties;
(n) organize sports, cultural, recreational events, fairs and shows;
(nn) organize cattle fairs and cattle markets;
(o) co-ordinate and support municipal functions amongst Unions and V illages;
(p) regulate markets and services and issue licenses, permits, grant permissions and impose penalties for violation thereof as and where applicable;
(q) manage properties, assets and funds vested in the T ehsil Municipal Administration;
(r) develop and manage schemes, including site development in collaboration with District Government and Union Administration;
(s) authorise an officer or officers to issue notice to a person committing any municipal offence and initiate legal proceedings for continuance of commission of such offence or for failure to comply with the directions contained in such notice;
(t) prosecute, sue and follow up criminal, civil and recovery proceedings against violat ors of municipal laws in the courts of competent jurisdiction;
(u) maintain municipal records and archives; and
(v) prepare financial statements and present them for internal and external audit in the manner as may be prescribed. (2) The Tehsil Municipal Administration may,-
(a) assign or contract out, on such terms and conditions as are approved by the Tehsil Council and after inviting public objections, any of its functions to any public-private, public or private organization: Provided that responsibility for discharge of such functions shall continue to vest with the Tehsil Municipal Administration.
(b) on such terms and conditions as are mutually agreed, transfer its functions or responsibilities with regard to providing municipal services to the Union Administration or V illage Council: Provided that no function or responsibility shall be transferred without allocation of corresponding resources and funds: Provided further that the responsibility to regulate and monitor such functions and services shall remain with the Tehsil Municipal Administration.
(c) by an agreement and on such terms and conditions as may be mutually agreed, perform any function of the District Government;
(d) with funds raised through voluntary contributions or external grant, but without recourse to additional enhanced taxation, user charges or fees or recourse to any other sources of public funds and without incurring debt of any nature, undertake any development project;
(e) with the approval of the Government and concerned regulatory authorities of the Federal Government and Provincial Government, set-up, acquire, manage and operate any commercial activity on a self-financing basis with no liability to the public exchequer; and
(f) set-up a corporate body to perform any of its functions, singly or jointly with other public or private bodies: Provided that responsibility for discharge of such functions shall continue to vest with the Tehsil Municipal Administration. "
The afore-quoted functions of TMA also includes development of schemes which definitely involves construction work. Moreover , the sewage related functions also falls within the domain of TMA, therefore, it has direct relation with the maintenance of sewer , drain and water work thus the same falls within the category of an industry involved in construction work.
11. Now the preposition further boils down as to whether Tubewell Operators and Sanitary Workers fall within the ambit of the Ordinance 1968 or not. Admittedly , sanitary workers are directly concerned with sewer work whereas Tubewell Operators deals with water work, thus, they are workmen. At the cost of repetition it is re-iterated that the Town Municipal Administration, in addition to its other tasks, is also responsible for sewer as well supply of water in its jurisdiction thus it falls within the categ ory of Construction Industry . My view also stands strengthened from the judgment of the apex Court of the countr y reported as Tehsil Municipal Administration v. Muham mad Amir (2009 SCMR 1161) in which the apex Court of the country while dealing with the question as to whether Tubewell Operators are amenable to the jurisdiction of Labour fora or not has inter-alia observed 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 T.M.A. Bhalwal where he continued to work till 15-8-2005 when he was informed that his services had been terminated w.e.f. 1-9-2004. 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." (emphasis provided)
Insofar as the cases referred to by the learned representing TMA in support of his objection regarding ouster of jurisdiction of the labour fora are concerned, I am of the view that the same are not applicable to the facts and circumstances of present case inasmuch as in the case of Tehsil Municipal Officer , TMA Kahuta (Supra ) the apex Court of the country set aside the order passed by a learned Division Bench of this Court in ICA No.123/2010/R WP for the reason that as the employee in the said case were initially appointed on work-charge basis in Public Health Engineering Department and was later on transferred to TMA and without any formal order regarding his regularization he could not be treated as permanent employee mere on account of length of his service whereas in the instant case the Labour Court has already held the employees entitled for regularization whose verdict has further been upheld by the Tribunal, therefore, the said case is distinguishable. As far as case of Province of Punjab and 3 others (Supra ) is concerned, suffice it to observe that the said judgment cannot be given precedence over the judgment of the apex Court of the country in the case of Tehsil Municipal Administration (Supra ) as the same was not only latter in time and was passed by the same number of Hon'ble Judges but also the point involved in this case was exhaustively dealt with by the apex Court of the country . It is well-entrenched by now that when two conflicting views of two Benches comprising same number of Hon'ble Judges are in field the latter should be given preference over the former .
12. Now reverting to merits of the case, taking up the matter of Tariq Amanoil (petitioner in W.P. No.19676/2012 and private respondent in W.P. No.14637/2012) I have noted that a perusal of order , dated 05.11.2008, shows that the Grievance Petition filed by Tariq Amanoil was disposed of in view of the offer made by the Tehsil Municipal Officer.
When the Grievance Petition filed by Tariq Amanoil was decided in terms of the statement made by the departmental representative, TMA authorities could not interpret the same acco rding to their own wishes. The inconsistent attitude of the departmental authorities is clear from the fact that while appearing before the Labour Court on 05.11.2008 Syed Arshad Mehmo od, TMO, representing the department got recorded his statement to the effect that departmental authorities were ready to reinstate him subject to the condition that he relinquished his claim regarding back benefits but after decision of the matter on 05.11.2008 by the Labour Court the departmental authorities issued order appointing him afresh on daily wages despite the fact that there was hell of difference between reinstatement and fresh appointment against a particular post.
13. It is trite law that when a person performs duties against a permanent post, he assumes the status of a permanent workman on expiry of the period mentioned in various enactments. Now the question is as to which posts are of permanent nature. The posts which are likely to continue without any specification of the period are considered permanent posts. Insofar as the case in hand is concerned, it is not the case of TMA authorities that the employees are not working against the posts carrying work of permanent natur e rather their case is that they cannot claim status of a permanent workman without formal order by the competent authority . Admittedly the employees are serving the department for last many years without any qualms about their output. If the competent authority slumbers over the matter of regularization of the employees who are serving the department for a considerable period, they cannot be divested to approach the forums created by the Legislation for redressal of their grievance. Further , the act of the departmental authorities towards non-re gularization of services of the employees being violative of the law laid down in the cases reported as Tehsil Municipal Administration (Supra ), Managing Director , Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 SC 724), Government of Punjab and others v. Punjab Appellate Tribunal, Lahore and others (2002 SCMR 878), Ghulam Abbas and 11 others v. Secretary/Chairman, Ministry of Railways (2002 SCMR 853), Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribun al, Lahore and others (1999 SCMR 2557 ) and Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCMR 1947 ) cannot be approved of. While dealing with the question in issue the apex court of the country in the case of Tehsil Municipal Administration (Supra ) has inter alia observed as under:-
10. ......... Besides the afore-mentioned provision, a reference may also be made to the schedule attached to the Standing Orders Ordinance, Order 1 of which, inter alia, defines `permanent workman' and `temporary'. It reads as follows:--- "(1) Classification of workmen.---
(a) Workmen shall be classified as---
(1) Permanent.
(2) Probationers.
(3) Badlis,
(4) Temporary
(5) Apprentices.
(b) A "permanent workman" is a workman who has been engaged on work of perm anent 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 commercia l establishment, 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 hundr ed and eighty-three days during any period of twelve consecutive months .........
If I were to hold that it will have the latter meaning, in that event, the appellant-department will be covered by the above definition of "industrial establishment". Since the provisions of the Standing Orders Ordinance are beneficial provisions for the working class, the meaning which would advance the object for which the above statute was enacted, be preferred. I am, therefore, inclined to hold that the work "a person" used in sub-clause
(v) of clause (f) of section 2 of the Standing Orders Ordinance will include a legal person. In this view of the matter, the provisions of the above statute are available to the respondents. The Courts below have, therefore, rightly held that upon expiry of the period of nine months as provided in clause (b) of paragraph 1 of the schedule, the respondents had become permanent workmen.
14. Since the respondent was a permanent workman in terms of the afore-mentioned provisions of the Ordinance, he could not have been summarily dismissed and that too without a written order. The procedure adopted was violative of Order 12 of the Standing Orders Ordinance which, inter alia, mandates as under:- " ..........
14. As far as claim of Tariq Amanoil regarding grant of back benefits is concerned suffice it to note that he was declared permanent employee by the Tribunal with effect from the date when a concessional statement was made by the TMO during proceedings before the Labour Court. Perhaps inadvertently the Tribunal omitted to pass any order regarding back benefits. If Tariq Amanoil was to be considered as permanent employee w.e.f. 05.11.2008 when his Grievance Petition was disposed of in view of the statement by the Town Municipal Officer he was entitled for benefits attached with the said status. Learned counsel representing TMA has tried to counter the claim of Tariq Amanoil with the assertion that as he himself relinquished his claim for back benefits he was not entitled for the same. In this regard I disagree with learned counsel for TMA for the reason that as Tariq Amanoil filed Grievance Petition in terms of section 46(3) of Industrial Relations Ordinance, 2002, challenging legality of order, dated 22.01.2008, whereby he was terminated from service. His statement regarding relinquishment of back benefits was confined to the period from 22.01.2008 till 05.11.2008 and by no stretch of imagination could be used against him after 05.11.2008 especially when he has already been declared regular employee by the Tribunal from the said date.
15. As far as the point raised by learned counsel representing TMA that the appea ls filed by the department were dismissed by the Tribunal on the point of limitation, thus, merits of the case were not discussed. In this regard, I am of the view that after decision of the matter by the Labour Court the department was bound to file appeals before the Tribunal within 30 days as stipulated under the relevant law. In case of any delay in filing the appeals TMA authorities were bound to explain each day's delay in filing the appeals. A perusal of impugned order passed by the Tribunal shows that despite knowing the fact that the appeals filed by the department were barred by the law of limitation, applications for condonation of delay were not attached therewith. In such scenario, the Tribunal was justified to dismiss the appeals filed by the department as the delay without any written request in that regard could not be condoned by the said forum while entertaining the plea of the departmental authorities that no limitation runs against void order . It is well established by now that no preferential treatment can be given to the government functionaries while dealing with question of limitation rather they are to be treated at par with a common man.
Reference in this regard is placed on the case reported as Government of Pakistan through Ministry of Works and another v . M/s Malbrow Builders, Contractor , Sialkot (2006 SCMR 1248 ).
There is no cavil with the preposition that in appropriate cases when merits deserve otherwise court can condone delay in filing proceedings but the discussion made in the above paragraphs affirms that the findings of the Labour Courts are based on cogent reasons. Further , when a party does not challenge an order within prescribed period of limitation the same cannot be set aside in the proceedings barred by law merely on the ground that no limitation runs against a void order as held in the case of M/s Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR 587), Muhammad Raz Khan v. Government of N.-W .F.P. and another (PLD 1997 SC 397) and The Chief Settlement Commissioner , Lahore v . Raja Mohammad Fazil Khan and others (PLD 1975 SC 331 ).
16. It is imperative to note that TMA authorities neither before the fora below nor before this Court have been able to dislodge claim of the employees that they having been appointed against the post carrying work of permanent nature have attained the status of permanent employees on expiry of 90 days. Though learned counsel representing TMA has tried to wriggle out from the said preposition with the assertion that as the employment of the employees is being renewed on expiry of 89 days they cannot claim that they are in continuous service. It is of common knowledge that the departmental authorities with a view to render the provisions of labour laws regarding permanent status of an employee after expiry of 90 days used to adopt such via media to create gap in continuous service. The said question has also been answered by the apex Court of the country in the case of Ikram Bari and 524 others (Supra ) by inter-alia observing as under: "15.............In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. "
17. The uncalled for conduct of the departmental authorities is manifest from the fact that while arguing W.P.
No.39166/2015 learned counsel representing TMA took clear cut stance that as Zamir Ali never remained as Tubewell Operator, the findings of the courts below regarding his regularization as such are nullity in the eye of law. The said assertion falls to the ground when the same is considered while putting in juxtaposition to the contents of the Grievance Petition filed by Zamir Ali before the Labour Court coupled with the fact that no such objection was raised by TMA authorities while submitting their reply . Moreover , the documents exhibited before the Labour Court as Exh.P/1 to Exh.P/12 are sufficient to dislodge said assertion. A trend has been developed in the government institutions that instead of performing their obligations towards welfare of the employees the competent authorities opt to avoid their legitimate right by adopting dilly dally tactics as has been done in the present matter .
On the one hand stance of the department is that services of the employees cannot be regularized without regularization policy but on the other has not been able to show anything that despite the fact that they have been serving the department for last many years but their case was never put up before the competent authority for regularization. The denial on the part of the competent authority towards regularization of the employees amounts to their economic devastation which in this era of price hike cannot be approved rather deserves strict action against the persons involved in such activities.
18. The concurrent findings recorded by the fora below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not the position in these matters. Reliance in this regard can safely be placed on the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073 ).
19. As a sequel to the above W.P.Nos.2667/2012, W.P.No.2668/2012, W.P.No.39166/2015, W.P.No.39357/2015 and W.P.No.14637/2012 are dismissed whereas W.P.No.19676/2012 is accepted and Tariq Amanoil is held entitled for back benefits from the date of his regularization as determined by the Tribunal. There shall be no order as to costs.