Abid Aziz Sheikh, J. This constitutional petition is directed against order dated 23.11.2016 passed by respondent No.3, whereby representation of the petitioner for regularization of his services was declined.
2. Relevant facts are that petitioner was appointed as daily wager as Baildar in October , 1999 and since then, the petitioner is in the employment of the respondent, however , services of the petitioner has not been regularized. The petitioner being aggrieved filed representation which was declined through impugned order dated 23.11.2016 by respondent No.3, hence this constitutional petition.
3. Learned counsel for the petitioner submits that as petitioner is performing his duties against a permanent post since October , 1999, therefore, he is entitled for regularization in view of law settled by Hon'ble Supreme Court in Province of Punjab through Secretary etc vs. Ahmad Hussain (2013 SCMR 1547 ) and Pir Imran Sajid and others vs. Managing Director etc ( 2015 SCMR 1257 ).
4. Learned Law Officer on the other hand while supporting the impugned order submits that petitioner was appointed without due process and advertisement, therefore, he is not entitle d for regularization. Adds that petitioner was initially hired against the post of sanitary worker but he was relucta nt to perform his duties against the said post, therefore, he was allowed to perform his duties as Naib Qasid/Baildar . Submits that this conduct of the petitioner does not entitle him to seek relief for regularization of his services.
5. Arguments heard. Perusal of impugned order dated 23.11.2016 shows that it is not disputed that petitioner was hired on daily wages since October , 1999 and he is performing his duties in said capacity for the last 22 years. The claim of the petitioner on one hand is that he was hired against the post of Baildar whereas respondents stance is that petitioner was hired as sanitary worker but was allowed to perform his duties as Naib Qasid/Baildar .
Notwithstanding the respective claims of the parties, there is no dispute that all those posts against which, petitioner was hired or performing duties are not of casual nature but of permanent nature and petitioner continued his duties against said posts for almost 22 years. Under Para 1(b) of the Schedule attached to The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Standing Orders Ordinance), if a project on which employee appointed on daily wages, continue beyond 9 months, the said employee attains the status of a permanent workman after satisfactory completion of work for 90 days against post of permanent nature. It is expedient to reproduce Para 1(b) of the Schedule as under:-
1. Classification of W orkman
(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 lockout 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".
6. The petitioner , who is admittedly doing manual and clerical work against a permanent post with Local Government for almost 22 years as daily wager , has indeed attained the status of a permanent employee under the Standing Orders Ordinance. The argument of learned Law Officer that the post against which, the petitioner performing his duties for last 22 years was not duly advertised has no force, as no such policy or rules has been placed on record prevailing in the year 1999, according to which, daily wager could only be hired after advertisement. Further there is also no such pre-condition prescribed under the Standing Orders Ordinance for regularization of services of an employee who performed his services for almost 22 years against permanent post.
7. It is relevant to note that the similar legal question involved in this case also came up before the august Supreme Court in PROVINCE OF PUNJAB through Secretary Communication and Works Department and others versus AHMAD HUSSAIN (2013 SCMR 1547 ). In the said case, the employees who were working as 'Store Keepers' on work charge basis with the department, despite more than 14 years of their service on work charge, were not regularized. The employees being aggrieved filed writ petition before the learned High Court which was allowed and against said order , the department filed appeal before the Hon'ble Supreme Court, which was dismissed on the ground that petitioners have attained the status of permanent workmen under provisions of Standing Orders Ordinance. It is expedient to reproduce the relevant part of Hon'ble Supreme Court judgment as under:- "A careful perusal of above paragraph makes it abundantly clear that it is meant for work-charged establishment.
As far as nature of work of work-charged establishment is concerned, above provision itself provides that for execution of specific job person shall be appointed whereas in the instant case respondent is working as Storekeeper since 1998 against a post, which is not a casual nature and is continuing to exist from the date at least when respondent was appointed against it.
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, althoug h 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 Commerc ial 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 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 badly 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"
It is to be noted that exactly this very proposition came up under consideration in the case of Punjab Seed Corporation v. Punjab Labour Appellate Tribunal (1996 SCMR 1947 ) wherein the respondent was appointed as Field Supervisor on temporary basis on 25.06.1980 and continued as such till 30.07.1991 when his services were terminated. On receipt of notice of termination, he served a grievance notice on the department alleging that he was a permanent workman and as such his services could have not been terminated without a show-cause notice.
He ultimately filed petition before Labour Court, which was dismissed, as such appeal was filed before the Punjab Labour Appellate Tribunal, which was accepted and the relief was granted to him. The writ petition, challenging the said order was dismissed and this Court also declined to grant leave to appeal".
8. Similar question also came up before the august Supreme Court in Pir IMRAN SAJID and others versus MANAGING DIRECT OR/GENERAL MANAGER (MANAGER FINANCE) TELEPHONE INDUSTRIES OF PAKIST AN and others (2015 SCMR 1257 ), Secretary Irrigation and Power Department, Government of Punjab, Lahore and others v. Muhamm ad Akhtar and others (2009 SCMR 320), Ikram Bari and 524 others v.
National Bank of Pakistan through President and another (2005 SCMR 100) and Province of the Punjab through Secretary , Irrigation and Power Department, Lahore and another v. Punjab Labour Appellate Tribunal through Chairman and others (2002 TD (Labour) 377) and before this Court in Muhammad Javed Akhtar Vs. Province of Punjab through Secretary , Housing and Town Planning Agency , Lahore and 2 others (2008 PLC 284), where in crux, it was held that work charge employee who was working for more than 90 days against a post of permanent nature in a project which continue for more than 9 months, attains the status of permanent employee under the provisions of Standing Orders Ordinance.
9. In view of above discussion, this petition is allowed and while setting aside the impugned order , it is held that the services of the petitioner are deemed to be regularized in view of provision of Standing Orders Ordinance.