Ayesha A. Malik J. Through this Petition, the Petitioner , Province of Punjab has impugned order dated 19.02.2019 passed by the Punjab Labour Court No. VII Gujranwala ("Labour Court") and judgment dated 02.07.2019 passed by the Punjab Labour Appellate Tribun al, Lahore ("Labour Appellate Tribunal") . In WP No. 10805/2020, Respondent No. 1 seeks back benefits which were not granted by the Labour Appellate Tribunal.
2. The facts of the case are that Respondent No. 1 filed a grievance petition against the Petitioners before the Punjab Labour Court seeking regularization as Family Helper with the Department of Population Welfare (Respondents herein). The Labour Court decided the lis in favour of Respondent No. 1 which decision was challenged before the Punjab Labour Appellate Tribunal (Respondent No.2) which dismissed the appeal of the Petitioner .
3. The basic contention of the Petitioner is that the impugned judgments passed by the Labour Court and the Labour Appellate Tribunal are without jurisdiction as both the courts could not have heard the case of Respondent No. 1. Mr. Akhtar Javed, Additional Advocate General argued that Respondent No. 1 was appointed as a contingent staff for a period of 89 days with the District Population Welfare Office, Sialkot as Female Helper . As a contingent staff, the pay package was not based on a regular salary rather on contingent basis where she was being paid a lump sum amount of Rs. 6000/- per month. Even though the post of Female Helper is a sanctioned post, these seats are limited yet many were appointed as contingent staff at the time on account of a policy decision to increase awareness on reproductive health and family planning under a project of the Population Welfare Department. He argued that that conting ent staff have no right to seek regularization nor can they approach the Labour Court for regularization. Learned Law Officer argued that the District Popu lation Welfare Office, Sialkot is not a commercial or industrial establishment as per the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 ("Standing Orders") or under the Punjab Industrial Relations Act, 2010 ("PIRA") . Further stated that since it is not a commercial establishment, the exercise of jurisdiction over the case of Respondent No. 1 was without jurisdiction and against the mandate of law. His contention is that the impugned order failed to take the issue of jurisdiction into consideration and simply focused on the nature of work of Respondent No.1, to categorize Respondent No.1 as a workman under the Standing Orders or PIRA whereas in fact issue was if the District Population Welfare Office is a commercial establishment under the Standing Orders or PIRA before classifying Respondent No.1 as a workman. Furthe rmore he contended that for the purposes of regularization, government employees cannot invoke the jurisdiction of the Labour Court, as regularization is a matter of policy governed by notifications and the law . Hence the Standing Orders or the PIRA are not applicable.
4. On behalf of Respondent No. 1, it is stated that Respondent No.1 has been working in BS-1 with the Petitioners for a considerable period of time, since 2011 and her appointment was extended from time to time as a contingent paid staff. That the post against which she is working is a sanctioned post, hence with the passage of time, she has attained the status of a permanent workman in terms of section 1(b) of the Schedule to the Standing Orders and was entitled to be paid salary as a permanent employee from the date of her initial appointment with all back benefits. That although the Labour Appellate Tribunal considered her as a permanent workman, she was not given back benefits from the date of her appointment in 2011. Hence WP No. 10805/20 20 has been filed seeking back benefits.
5. Heard. Record perused. The basic issue before this Court is whether the Labour Court and the Labour Appellate Tribunal could have exercised jurisdiction over the case of Respondent No. 1, who admittedly was working for a government department, being the Population Welfare Department. The facts related to Respondent No.1' s appointment on contingent basis and her periodical extensions are not denied. As per the record, Respondent No. 1 filed a grievance petition before the Labour Court seeking regularization at the post of Family Helper with the District Population Welfare Office, Sialkot. Her basic contention was that since she was working at the post since 2011, she has attained the status of a permanent workman, hence her services ought to be regularized and she be paid all back benefits. The Petitioners resisted the grievance petition of Respondent No. 1 on the ground that she is not a workman and her matter does not fall within the jurisdiction of Labour Court as the District Population Welfare Office is not a commercial establishment under the Standing Orders nor under PIRA. In this regard, the impugned judgment dated 02.07.2019 shows that the definitions of establishment and workman were duly considered under both laws yet the order concluded that Respondent No. 1 was a workman working in an establishment and the fact that the welfare centers, at which she worked were involved in buying and selling contraceptive products, hence they are commercial establishments under the Standing Orders. The impugned judgment also concluded that Section 1(3) of PIRA was not applicable as she was a workman of the Population W elfare Centre.
6. The term 'commercial establishment' is defined in Section 2(b) of the Standing Orders to mean an establishment in which business of advertising, commission or forwarding is conducted 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 with 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 any eating house, a cinema or theater , and such other establishment or class thereof, as Government may, by notification in the official Gazette, declare to be a commercial establishment.
Section 1 of the Standing Orders clearly provides in its proviso that nothing in this Ordinance shall apply to industrial and commercial establishments carried out by or under the authority of the [Federal] or any Provincial Government, where statutory rules of service, conduct or discipline are applica ble to the workmen employed therein . Admittedly , Respondent No. 1 worked for a government department, which is not a commercial establishment under the Standing Orders, as it does not fall under the definition of commercial establishment nor has it been notified as a commercial establishment which is a fundamental requirement under the Standing Orders.
Furthermore, as per the proviso to Section 1, the Standing Orders will not apply to Federal or Provincial government department, where statutory rules of service, conduct or discipline are applicable to the workmen employed. In this case, this fact was totally overlooked as Respondent No. 1 sought regularization as a post of a government department. In the same way, PIRA defines establishment as any office, firm, factory , society , undertaking, company , shop, premises or enterprise in the Punjab, which employ s workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and except in section 25 includes a collective bargaining unit, if any, constituted in any establishment or group of establishments. Section 1(3)(b) of PIRA provides that this Act will not apply to a person employed in the administration of the State .
Consequently , a government departmen t does not fall under the Standing Orders or PIRA. This was totally overlooked by both the Labour Courts and the Labour Appellate Tribunal which failed to consider the fact that Respondent No. 1 worked for a government department and did not fall under the Standing Orders or PIRA.
7. In this regard, it is also noted that the issue of regularization is governed by the Punjab Regulations of Service Act, 2018 ("The Act") which specifically excludes persons applying under special pay packages. Government employees seeking regularization have to establish their claim under the Act or if it is prior to the Act under a policy or notification which addresses the issue of regularization, government employees cannot claim to have become regular or permanent under the Standin g Orders or PIRA with the passage of time. This is because for all government jobs for the purposes of regularization, there has to be a sanctioned post for which there is a budget and allocation of funds. A person seeking regularization can only be regularized against a sanctioned post. In this case, admittedly , there was no vacant sanctioned post against which Respondent No. 1 sought regularization nor did the Labour Court or Labour Appellate Tribunal consider this factor . As per the record, the Population Welfare Department of the Government of Punja b initiated a program for maintaining Population Welfare Directorates.
Female Helpers were provided with several duties including disseminating information on contraceptives and reproduction related matters at the Family Health Clinics. Neither the Populatio n Welfare Department nor the Family Health Clinics are commercial establishments. Again the Labour Court and the Labour Appellate Tribunal totally ignored this aspect of the matter and did not consider whether there was a sanctioned post and whether a project based employee can seek regula rization, that too under the Standing Orders or PIRA. As per the record, these clinics were created pursuant to a government project to promote and inform the public on reproductive health and family planning. Therefore, the Petitioner offered a project based job to Respondent No. 1 on contingent basis, which she accepted. Under the circumstances, the Standing Orders and PIRA were not applicable for the purposes of regularization of Respondent No 1. Reliance is placed on Province Punjab and 3 others versus Gul Hassan and 33 others (1992 PLC 924) Parks and Horticulture Authority and others versus Ejaz Ahmad Sial (2020 PLC (CS) 214) and Province of Punjab through Secretary Agriculture Department, Lahore and others versus Muhammad Arif and others ( 2020 SCMR 507 ).
8. Under the circumstances, the instant Writ Petition is allowed and consequently order dated 19.02.2019 passed by the Labour Court and judgment dated 02.07.2019 passed by the Labour Appellate Tribunal are set aside being passed without jurisdiction.