WAQAR AHMAD SETH, J.--- Through this single judgment, we propose to dispose of instant Writ Petition as well as connected Writ Petitions Nos.2682-P, 2681-P and 2680-P/2011 as common questions of law and facts are involved therein.
Writ Petition No.685-P/2012 2.Brief facts of the case are that petitioner is performing his duties in PTCL as Daily Wages Chowkidar w.e.f. August, 1998, however, in September, 2004, the PTCL/company offered a package i.e. NCPG for the regularization of daily wage employees and accordingly, daily wage employees employed upto 1997-98 were regularized but the name of petitioner was omitted from the list of daily wage employees. Aggrieved therefrom, the petitioner made request to the respondents for the purpose but of no avail and thereafter, he served grievance notice upon respondents but no action was taken. The petitioner, then, filed grievance petition before the learned Labour Court, Peshawar, who on conclusion of trial, allowed the same vide order dated 10.12.2009 and directed the respondents to place the name of petitioner in the list of regularized employees, however, no financial benefits were granted. Feeling aggrieved, the petitioner and respondents filed two separate appeals before the learned Labour Appellate Tribunal, Peshawar, who after hearing the learned counsel for parties, allowed appeal of the respondents and dismissed the appeal of petitioner vide impugned judgment/order dated 7.10.2011; hence, having no other adequate and efficacious remedy, the petitioner has filed the instant Writ Petition with a prayer to declare the judgment/order dated 7.10.2011 of learned Chairman, Labour Appellate Tribunal, Peshawar, whereby appeal of respondents Nos.1 to 4 was accepted and appeal of petitioner for grant of back benefits was dismissed, as illegal, unlawful and without lawful authority and restore the judgment/order of learned Labour Court, Peshawar by granting him back benefits.
Writ Petition No. 2682-P/2011 3.Facts, in brief, are that the petitioner was appointed on daily wage basis in the year, 1992 and since then, he is continuously performing his duties. Subsequently, the respondents/company announced a policy for regularization of daily wage employees, vide which, colleagues of the petitioner were regularized and the petitioner's services have not been regularized. The petitioner made several requests to the respondents to include him in regular employees list but it was never considered. The petitioners, then, filed representation but no reply was made, as such, he served grievance notice upon respondents, which too was not replied and finally, he filed grievance petition before the learned Labour Court, Peshawar, who, after hearing the parties, dismissed the same vide order dated 27.5.2009. Feeling aggrieved, the petitioner filed appeal before the learned Labour Appellate Tribunal, Peshawar, who vide judgment/order dated 13.6.2011, dismissed the same; hence, the instant Writ Petition.
Writ Petitions Nos. 2681-P and 2680-P/2011.
4.Facts, in brief, are that the petitioners were appointed on daily wage basis on 24.3.2000 and since then, they are performing their duties. During the course of service, the petitioners made several applications to the respondents to include them in regular employees list but it was never adhered to. The petitioners, then, filed representations but no reply was made, as such, they filed appeals before the Federal Services Tribunal and during its pendency, the august Supreme Court of Pakistan has declared section 2-A of the Service Tribunal Act, 1973 as repugnant to the provisions of Constitution, hence, the Federal Service Tribunal declared the appeals of petitioners as abated and returned to them for approaching before the proper forum. Subsequently, the petitioners served grievance notice upon the respondents but no response was made and thereafter, they filed grievance petition before the learned Labour Court, Peshawar, who after hearing the parties, dismissed the same vide orders dated 28.9.2009. Feeling aggrieved, the petitioners filed appeals before the learned Labour Appellate Tribunal, Peshawar but the same were also dismissed vide judgment/order dated 13.6.2011; hence, the instant Writ Petitions.
5.Arguments heard and record perused.
6.At the very outset learned counsel for respondents was asked as to whether the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is applicable to the respondents- establishment or not. Learned counsel for respondents frankly admitted at bar that the said Ordinance is applicable to the Establishment. Even otherwise, Standing Order-1 (4) (a) reads "It applies to every industrial establishment or commercial establishment wherein 20 or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or where so employed on any day during the preceding 12 months". The Industrial and Commercial Establishment are defined in standing order-2 (b) & (f) which reads as under:-
(b) "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract which the owner of any commercial establishment or industrial establishment employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel a restaurant or an eating house, a cinema or theatre, and such other establishment or class there of, as government, by notification in the official Gazette, declare to be a commercial establishment for the purpose of this Ordinance."
0 "industrial establishment" means--- (i)an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or (ii)a factory as defined in clause (i) of section 2 of the Factories Act, 1934 (XXV of 1934); or (iii)a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or (iv)the establishment of a contractor who directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on;
7. The emphasis in the above quoted standing orders 1(4) (a) of the Standing Order Ordinance, 1968, is on workmen as employed and for that matter one has to go to the definition of workman under "schedule" of Standing Orders [section 2(g)] wherein classification of workmen is given as:- 1.Permanent, 2.Probationers, 3.Badlis, 4 temporary, 5.apprentices, 6.[contract worker].
8. The definition of words permanent and temporary reads 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, 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.]
(e) A "temporary workman is a workman who has been engaged for work which is of an essential temporary nature likely to be finished within a period not exceeding nine months."
9. The plain reading and objects of the legislation is to protect the rights of employee/workmen and as such the time period and nature of job has been specifically provided for the cadre of permanent workmen/employees. The obvious difference between the two cadre i.e. permanent and temporary is that the permanent employees/workmen is entitled to different and more financial benefits during and after his retirement whereas temporary workmen /employees is entitled to only wages and that too; much lesser, and as such the employer always exploit the employee by keeping him temporary, otherwise it's the rights secured and guaranteed under the law to have a permanent status against a post which is likely to continue for a period of ninety day.
10. In order to enforce any secured and guaranteed rights one has to go to section 37 of the Industrial Relation Act, 2010 which reads as under:- Section 37 Redress of individual grievances. --- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within three months of the day on which the cause of such grievance arise.
2 3 4 5.
11. The word used "secured and guaranteed" right under the law, in the instant case are the standing orders. It is the right of the every individual, citizen and employee to be treated in accordance with the law of the land including the constitution as well as the Standing Orders Ordinance, 1968, which admittedly applies to the respondents-establishment. The secured and guaranteed rights are described as an entitlement or justified claim to a certain kind of positive and negative treatment from others, to support from others or non interference from others. Any individual cannot claim right if those rights are not recognized by the state. Mere recognition, moreover, is not sufficient for the exercise of rights. The state must, through law and institution, implement the rights and in the instant case Standing Order Ordinance, 1968, has been made applicable to the respondent's establishment and which is to be enforced not other than any law except for filing of grievance petition under section-37 of the Industrial Relation Act, 2010.
12.Record is suggestive that, in order to regularize the services of daily wage employees the respondents establishment introduced NCPG Policy in the years 2004 and 2005, showing that regularization process is not alien to the establishment and if at all the petitioners had not applied under that policy or that policy was not applicable to the petitioners even then under the law i.e. Standing Order Ordinance, 1968 they had the rights secured and guaranteed to be treated as regular employees for the purpose of availing benefits of regular employees i.e. House Rent, Utility Allowance, Leave, including sick leave, casual leave, annual leave, leave encashment, gratuity and EOBI. etc.
13. Factually it is not disputed that petitioner's employees are not in the services of respondent's establishment. There is nothing on record to show that during their entire temporary period, their services remained unsatisfactory or were involved in any other activity adverse to the terms and conditions. They are in continuous service against the daily wage status for the last more than 15 years and as such have the every right to be treated as regular and permanent employee of the respondents-establishment.
14. Nowhere respondents have brought on record that the nature of job against which petitioners are performing their duties since one and a half decade, is of temporary nature nor the respondents have given any specific date of completion of work, which is done by the petitioners.
In the case of Executive Engineer, Central Civil Division PAK, PWD Quetta v. Abdul Aziz and others reported in PLD 1996 Supreme Court-610(b) the apex Court has held which reads as under:- Sched, Para, 1, cl. (b) & S.2(i)---Permanent worker---Determination---Principles---Period of employment is not sole determining factor---If the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon expiry of the period of nine months mention in terms of sched, para. 1(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968provided he is covered by the definition of term "worker" as given in S.2(i) of the said Ordinance---If, however, 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 said provision--- Once, however, it was proved that the employees remained in service without any interruption between a period from two years to seven years the burden of proof was on the employer department to have shown that the employees were employed on the works which was not of permanent nature and which could not have lasted for more than nine months---Employer- department which was engaged in maintained the Government residential and non-residential buildings and constructing itself and/or causing construction thereof, failed to bring on record that work for which the employees in question were engaged was not to last for more than nine months---Work in question as far as the employer department was concerned thus was of permanent nature. Finding of Labour forums that employees in question were permanent employees of the employer department was founded on evidence on record in circumstances."
Likewise in the case of Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others, reported in 2010 SCM R 253, in the concluding paragraph it has been held as under:- "Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles-2-A, 4 and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc, described in paragraph No.2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, 'therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and got regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para No.16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a worker or a civil servant or the contract employees having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them."
15 . The ratio decided of the above referred judgment is in reference to daily wages employees who have rendered more than 2 years services have the right for regularization at par with the other employees of the establishment.
In the case of Tauqeer Abid v. Divisional Superintendent Pakistan Railways, Multan and 4 others, reported as 2016 PLC 326 (a) wherein it has been held as under:-
(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----S.0s. 1(b) & 12---Constitution of Pakistan, Arts.2-A, 4 & 25---Regularization of service of employee---Violation of fundamental rights---Petitioner, was appointed on contract basis as Ticket Collector for a period of two years under "Prime Minister Family Assistance Package"--- Petitioner remained working despite expiry of two years, but his services were not regularized, despite, authorities promised to regularize his service---Authorities had regularized the services of all other employees, who were appointed under said scheme, but petitioner had been denied the same---Petitioner having been working against the same post and project for the last many years, it could be held that said post and project were of permanent nature; and that the petitioner had attained the status of "permanent workman"---Denial of the authorities to regularize the services of the petitioner, was not permissible in law---Petitioner had become over-age during the period of his service; and he could not go anywhere, nor could apply to earn his livelihood in any department or organization---Authorities, should have regularized the services of the petitioner--- Denial to extend benefit of regularization of his service, was violative of the guaranteed and secured rights of the petitioner under Arts.2-A, 4 and 25 of the Constitution---Petitioner having attained the status of "permanent workman" by afflux of time, authorities would have to regularize his service according to law---Any action, if required in the case of any misconduct, would be initiated under Standing Order, 12 of Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, and not otherwise---Authorities, were directed to regularized the service of the petitioner along with back benefits in accordance, with law."
16. Even otherwise the temporary employees cannot be left to the time of termination of their services for the purpose of making their grievances through the Competent Court of law. In the case of Ikram Bari and 524 others v. National Bank of Pakistan and others reported in 2005 SCM R 100, the Hon'ble apex Court in respect of daily wages employees has held that they have the every right to be treated at par with the regular employees and all those employees who have rendered more than three years service in the Bank be absorbed and be treated as regular employees of the Bank. The Bank's are defined as Commercial Establishment for the purpose of Labour Laws and on the same analogy the principles so decided in the case squarely applies to the present case as well.
17. A policy of pick and chose as adopted by the respondents-establishment in the matter of absorption/regularization of the employees is totally against the law of the land as well. By Article- 2A of the Constitution, which has been made its substantive part, it is unequivocally enjoyed 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. The principle of policy contained in Article 38 of the Constitution also provide, interalia, that the State shall secure the well being of the people by arising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principles, from each according to his ability, to each according to his work. In view of section 24-A of the General Clauses Act, 1897, the respondents were required to act, reasonably, fairly and justifiably.
In the case of Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal and others, reported in 2000 PLC 199, it has been held that "---S. 0.1(b) (c)---Constitution of Pakistan (1973)
Art.185--- <i>Industrial dispute--Permanent workman and temporary workman'--- Determination---test---Nature of work on which a workman was employed would determine whether workman was permanent or temporary--If work was of a permanent nature likely to last for a period of more than nine months' workman employed on such a work, who had successfully completed probationary period of three months would be deemed to be a "permanent workman"---If nature of work was temporary and was likely to be finished within a period of nine months, then workman employed on such work would be deemed to be "temporary workman"---Mere fact that work of a temporary nature continued beyond nine months, would not make a workman employed on such work a permanent workman as expression "likely to be finished within a period not exceeding nine months" used in definition clause of S. 0.1(b) (c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would admit within its scope that a work of temporary nature, could in certain circumstances, stretch beyond nine months---Evidence on record had shown that post against which appointment was made was of permanent nature though in appointment letter same was described as purely temporary and that period of employment continued beyond period of nine months---Employees in circumstances would be deemed to be "permanent workmen"</i> within the definition given in S.O.1(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
18.It is the obligation of each and every establishment in Islamic State to establish a society which is free from exploitation wherein social arid economic justice is guaranteed to its citizens, in view of the above it is observed that petitioners were discriminated and were exploited by the respondents-establishment for the last one and a half decade, as they have to their credit continuous service against a permanent nature post, but kept on daily wages basis.
19.For the reasons recorded herein above the instant as well as the connected writ petitions are allowed, the impugned orders of lower hierarchy are set aside and petitioners are deemed to be absorbed, regular employees of the respondents-establishment with all consequential benefits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.