IJAZ ANWAR, J. This Labour Appeal is filed against the order dated 24.11.2021 of the learned Labour Court, Peshawar, whereby, the grievance petition of the appellants has been dismissed.
2. In essence, the respondent filed grievance petition on 30.11.2018 before the Labour Court Peshawar for adjustment on the post of Assistant Line Man on regular basis in the appellant company. The grievance petition of the respondent was allowed by the learned Labour Court vide the impugned Judgment/Order dated 24.11.2021, hence this Labour Appeal.
3. The learned counsel representing the appellants questioned the order of the learned Labour Court on different grounds, including the locus standi of the respondent, as according to him mere efflux of time could not confer upon work charged employee, a right for regularization in service, similarly, he argued that appellant being a company has not been sued by its name. It was also argued that grievance petition is barred by time, as though it is alleged that respondent served the appellant establishment since 1993, however, the grievance petition was filed in the year 2018. He placed reliance on cases titled "PESCO, WAPDA House through Chief Executive Vs Ishfaq Khan and others" (2021 PLC 148), "Vice Chancellor Bacha Khan University, Khyber Pakhtunkhwa and others Vs Tanveer Ahmad and others" (2021 SCMR 1995), "Divisional Forest Officer Larkana and 3 others Vs Ghulam Haider and 8 others" (PLD 2007 Karachi 329) and "Directorate General Civil Defence, Government of Pakistan, Interior Division, Islamabad Vs. Mian Abdul Salam" (2007 SCMR 1779).
4. As against this, learned counsel for the respondent argued that respondent remained in the employment of appellant company since the year 1993 and that recently it was decided by the appellant company to regularize the services of all of its employees, however, the respondent was deprived without any justification.
5. Arguments heard and record perused.
6. Admittedly, in terms of Section-37 of the Khyber Pakthunkhwa Industrial Relations Act, 2010, a worker may bring his grievance in respect of any right secured or guaranteed to him by or under any law or any award or settlement for the time being in force. This legal proposition also finds its mention in the judgment of the Hon'ble Supreme Court of Pakistan in the above-referred case titled "PESCO, WAPDA House through Chief Executive Vs Ishfaq Khan and others" (2021 PLC 148).
7. Thus, to see as to whether the appellant has any right secured or guaranteed under the law or award or settlement, reference can be made to the Standing Order-I, of the Industrial and Commercial Employment (Standing Orders) Act, 2013, which provides for the classification of workers. Standing Order-I defines a permanent workman as under: - " A "permanent worker" is a worker 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 strike) or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of ninety days or for one hundred and eighty-three days during any period of twelve consecutive months"
8. During the course of proceedings before the learned Labour Court, the appellant has produced one Mr. Toufeeq Ahmad, Senior Clerk from the office of XEN TESCO, Peshawar as PW-1, who brought the original service record of the respondent, which transpires that he was appointed as work charge Assistant Line Man in BPS-03 vide office order dated 07.03.1999 (Ex.P.W 1/2). The copies of the extract of the service book placed on file shows that the respondent was granted the annual increments regularly, similarly, after the completion of probationary period, he was granted BPS-07 vide order dated 28.09.1994. The record further transpires that as and when the revision in pay took place in the appellant's establishment, benefit of the same was provided to the respondent. The record further depicts that ever since his appointment till date, neither there is a break in the service of the respondent nor at any stage he was allowed extension. Thus, it amply proved that the post against which the respondent was serving is permanent in nature, similarly, against the said post except regularization in service, he was granted revised pay scale, annual increments, and higher grade, etc, as is permissible to the regular employees of the appellant-company. As referred to above, Section-37 of the IRA, 2010, refers to rights secured and guaranteed under the law, and such secured and guaranteed rights find its mention in the Standing Order-I of the Industrial and Commercial Employment (Standing Orders) Act, 2013.
9. The record placed on file by the counsel representing the appellants transpires that vide office memorandum dated 10.11.2004, it was decided to regularize the services of the daily wages staff, who have served satisfactorily on their posts for a period of five years, similar such decision finds its mention in its subsequent orders, albeit, the benefit of the same was not extended to him, despite the fact that his case remained under consideration throughout and the record is replete of such correspondence, addressed by officers of the appellant-company. The august Supreme Court of Pakistan in the famous case of "Ikram Bari and others Vs. NBP and another" (2005 SCMR 100), while commenting upon the question of estoppel for having accepted the post work charged/daily wage employment held as under: - "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 principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act, 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it was not in the nature of free consent between the agents. On the one hand, State power was projected in the form of a Statute, and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed, In Habibullah V. Government of the Punjab and 5 others PLD 1980 Lah.37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept, contractual terms at the pains of losing his job".
10. The august Supreme Court of Pakistan in the case titled "Izhar Ahmad Khan and another Vs Punjab Labor Appellate Tribunal, Lahore and others (1999 SCMR 2557), while commenting upon the question of permanency of workman held as under: - "A careful analysis of the above definition of permanent workman' and 'temporary workman' would show that it is the nature of work on which a workman is employed that determines whether the workman is a permanent or a temporary workman. If the work is of a permanent nature and likely to last for a period of more than nine months, the workman employed on such a work, who successfully completes a probationary period of three months, will be deemed to be a permanent workman. On the other hand, if the nature of work is' temporary and is likely to be finished within a period of nine months, then a workman employed on such work will be deemed to be 'temporary workman. As a corollary, it follows that mere fact that if the work of a temporary nature continues beyond nine months, it would not make a workman employed on such work a 'permanent workman' as the expression "likely to be finished within a period not exceeding nine months" used in the definition clause does admit within its scope that a work of temporary nature may in certain circumstances stretch beyond nine months. My above conclusion finds support from the ratio of the decision in the case of Pakistan International Airlines v. Sindh Labour Court No.5 (PLD 1980 SC 323)".
11. The august Supreme Court of Pakistan in the case titled "Pakistan Telecommunication Company Limited through General Manager and another Vs Muhammad Zahid and 29 others"
(2010 SCMR 253), while discussing the case of regularization vis a vis those employees who were regularized, held that "discriminating the employees in the matter of regularization is violative of the rights guaranteed under Article 2-A, 4, and 25 of the Constitution of Islamic Republic of Pakistan by depriving them of their entitlements, besides, all other service benefits being paid to such similar placed regularized employees". Reference can also been made to the judgment of Labour Appellate Tribunal reported as (1998 PLC 517), wherein too it was held that "Employees who were appointed on work-charged basis, having remained in services continuously without any break for about three years, had attained the status of permanent workmen and their services could not be terminated without observing provisions of S.O. 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968". Reference can also be made to the cases titled "Mumtaz Ahmad Vs Divisional Engineer, Telephones (External), Telephone Exchange, Lahore "(1997 PLC 410) and "Faisalabad Development Authority, Faisalabad through its Director General Vs. Muhammad Rafique"(1995 PLC 567).
12. Thus, while taking guidance from the above judgments of the Superior Courts coupled with the facts of long continuous service of the respondent, I find that the respondent has attained the status of permanent workman, after completion of his probationary period.
13. The objection of the appellant to grievance petition/grievance notice as time-barred is unfounded, because claiming regular service is a continuous cause of action till such time the temporary employee is in the service of the establishment. Thus, the grievance notice as well as the grievance petition is considered well within a time.
14. The objection regarding non-impleading of the company is also not tenable, because, in the grievance petition, the workman/employee has to array the appointing authority, in the instant case almost all the heads of the company were arrayed as respondents in the grievance petition, be that Chairman TESCO and also Chief Executive of the PESCO.
15. In view of the above, these objections are also overruled. For the reasons stated above, I find that the respondent was having a secured and guaranteed rights under the law and remained deprived of his regularization without any justifiable reasons.
16. Thus, I find no substance in the instant appeal; it is accordingly dismissed.