NOOR ZAMAN, MEMBER.----The petitioner was appointed as Producer on 17-07-2012 in the respondent Establishment. He contended that he was performing duties as Multimedia Broadcast Journalist to the entire satisfaction of seniors. That there is no any complaint whatsoever against the petitioner. That he has clear and unblemished track record. That the petitioner orally requested respondents Nos.1 to 3 to regularize his post but very next day on 22-11-2019, he was terminated without any cogent reason, justification and without any notice. That the petitioner served the respondent BBC Pakistan (Ltd.) for more than 7 year and has attained the status of permanent workman in terms of Standing Order Ordinance, 1968. He relied on dictum laid down by the Hon'ble Supreme Court in 2008 PLC (C.S.) 193 titled Syed Saqlain v. PTCL. That many juniors to him have been still working and the petitioner has been terminated without any reason. That being engaged in job of permanent nature he is entitled for regularization as like the Hon'ble Supreme Court held in reported case 2005 SCMR 100, titled Ikram Bari and others v. NBP.
2. On notice the respondent submitted written reply statement, wherein the maintainability and competency of the grievance petition has been strongly objected. Besides other preliminary objections, question was raised with regard to status of the appellant being not a workman as defined in the IRA, 2012 and Standing Orders Ordinance, 1968.
3. Therefore, the case was fixed for arguments on maintainability on 04-03-2020.
4. Both parties presented arguments on date.
Learned counsel for the petitioner reiterated contentions mentioned in memo. of petition that the petitioner was a workman and has been working for more than seven years on a permanent post and performing permanent nature of job. He contended that an employee is not necessarily in temporary employment merely because of a provision in the order of appointment that "his/her appointment will be purely temporary and liable to be terminated at any time without any notice or reasons being assigned". Nobody is a temporary employee as long as the employment is for an indefinite period or against a post, which continues to exist for an indefinite period. It is extremely difficult to attribute to the legislature of an intention to perpetuate fraud with the citizens that a post would be temporary for an indefinite period just to deprive the employee from the benefit of service. The petitioners were employed in 2012 on contract basis and continued to serve in the same capacity for more than seven years without any break and without any complaint whatsoever. The justice, equity and good conscious required that their services should be regularized w.e.f the date of their joining the department as they were working against a vacancy likely to continue for indefinite period. The petitioner was appointed on contract basis against a post likely to continue for indefinite period. It would be worth considering that the case of workman, their long services of the respondent department in view of the observations/dictum laid down in the judgment were considered sufficient to declare permanent worker by the Hon'ble Supreme Court of Pakistan in case reported as 2008 SCM R 1058 held that, "Labour Court held that respondents were permanent workmen and as such were entitled to benefits of a permanent and regular employee. Said findings of the labour Court were affirmed by the High Court and Hon'ble Supreme Court. That the petitioner has served for more than seven years and is continuing his service without any complaint, his services are required to be considered on regular basis since their joining of service in the light of the above referred judgments. That the petitioner have successfully completed the maximum period of probation hence, the petitioner is deemed to be permanent employee referred to above and they cannot be deprived of their legitimate right i.e benefit of regularization.
6. Learned counsel for the respondent contended that the petitioner does not fall within the definition of workman under Section 2(xxxiii) of the IRA, 2012 or Section 2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The petitioner joined BBC (Pvt.) Ltd. on 17-07-2012 as a Producer by signing BBC Pakistan employment contract and was working as a Multimedia Broadcast Journalist on the date of the Termination Notice. It is pertinent to note clause 2.1(a) of the Employment contract 2.1 your start date is July, 17, 2012 and your commencement date of employment is July, 17, 2012. The agreement replaces all other contracts/agreements whether written or oral between you and the company and or the British Broadcasting Corporation. a) You will be engaged by the Company as Producer or in such capacity as the company may reasonably require. You will perform to the best of your ability all the duties of this job and any other job you may subsequently hold and any other duties that may reasonably be required of you.
Your main duties are outlined in the attached job description.
That the job description of the Producer, as issued by the Respondent company, and the job description of the Multimedia Broadcast Journalist for a bare perusal of the job description shows that the petitioner was not performing any manual or clerical work. That in fact, the petitioner while performing his functions was required to apply his mind and make decision on subjects based on rational approach. Furthermore, the petitioner was also required to show intellectual abilities and was expected to display the quality of initiative, intelligence and correct speculation. He, being a Producer, and later Multimedia Journalist, was given independence in his line of action to apply rationality and was expected to use his mental facilities to find new avenues. The job Description clearly establishes that the petitioner does not fall within the definition of the workman and therefore, this petition is liable to be dismissed on the principle of Master and Servant as it is a settled proposition of law that contractual disputes and/or disputes of declaratory nature relating to the "Principle of Master-Servant" can only be adjudicated before the Civil Courts of competent jurisdiction in the civil original jurisdiction.
7. Arguments heard and record perused.
8. Basic question raised by respondent whether the petitioner is a worker as defined under Standing Order Ordinance, 1968 as he is a terminated employee and can sought redressal from this Commission under provision of Order 12(3) of Standing Order Ordinance, 1968. It is settled position that burden of proof is on petitioner to prove that he is performing job, which is manual or clerical in nature and that he has no powers of hire and fire. As laid down in 1993 SCM R 488, that whether an employee was a workman has to be proved by himself by production of documentary and oral evidence in his support. In the instant case neither in memo. of petition nor in oral arguments the petitioner could produce any evidence, that he is performing any manual or clerical job. The petitioner has not explained the nature of job but merely stated that he is a workman. Main focus of petitioner is that he has been in service of the respondent for a long period and has become entitled to be regularized as the Hon'ble Supreme Court decided in Ikram Bari's case. The petitioner relied on 2008 PLC (C.S.) 193, where the court held that keeping in view the length of service of the appellant, he had become entitled to regularization. Similarly, he relied on 2008 PLC (C.S.) 128, where held that employment through contractor as a daily wage is a job of permanent nature was to be considered for regularization. He also relied on PLJ 2002 SC 1220 where the court has settled the principle for regularization of the ad hoc employees. In his petition at para 'P' he has said that the post held by petitioner is permanent in terms of Section 2(e) of Civil Servants Act, 1973.
All these case laws pertains to period of service required for attaining status of permanent employee in terms of Civil Servant Act, 1973 or Labour Laws. The petitioner has not attended the question whether he is a worker in terms of labour laws and particularly Sanding Orders Ordinance, 1968. On contrary the respondent establishment in written statement established that the petitioner was required to show intellectual abilities and was expected to display the quality of initiation, intelligence and correct speculation, that he being producer and later Multimedia Journalist, was given independence in his line of action to apply mind rationally and was expected to use his mental abilities to find new avenue. Duties of petitioner inter alia include. "to research, report, write, translate, edit or adapt stories a programme material to find contributors and interviewers as well as other source of material as appropriate and to the required specification while maintaining professional journalists standards of accuracy, impartiality and fair dealing and adhering to the BBC producers guideline. "to offer ideas for original pieces of journalism, features, programmes/services".
The jobs are manifestive of the fact that the petitioner was required to ID perform imaginative, creative nature of jobs where mind is applied. The superior courts have ousted such employees from the ambit of workman; as in below cases.
1. In case; Syed Sarah Batool Gardezi v. Chief Executive Educational Services (Pvt.) Ltd. Lahore and others (2015 PLC 173 PLAT), the Punjab Labour Appellate Tribunal held that " job of appellant "School Evaluation Associate" was that of an evaluator and assessor, which required professional knowledge, experience, the ability to observe record, appreciation and analyze, quantitative and qualitative data, draw conclusion there-from, and submit reports on the performance of the teachers, the job of the petitioner was; held not an ordinary job as it required imagination, observation, rational approach, application of mind and specialized knowledge of evaluating the performance of Leacher and required mental or intellectual toil which could not be equated with physical or manual work, just because she had to do incidental work of writing notes or reports.
2. In case: GM Hotel International v. Bashir A. Malik (PLD 1986 SC 103) the Lahore High Court held that "there can be no doubt that the main and substantial part of his duties were those of a skilled Engineer, to be performed by application of his expert technical knowledge of the working of sophisticated machinery, such wok can rarely be called manual labour. Shift Engineer was responsible for maintenance and rectification of the Air conditioning Plant, boilers, laundry equipment kitchen equipment and to correct any electrical or a mechanical defects occurring therein. All these job required application of his technical knowledge".
3. The High Court Lahore in case: Athar Ali v. PL and others (2014 PLC 49) held that "Employees designated as Managers Officers entrusted with the duties of sales promotion were expected to utilize their mental abilities and a quality and intellectual initiatives to explore new horizons of sales promotion, were altogether distinct and distinguishable from manual or clerical work".
4. The Supreme Court laid down in Wisram Das v. SGS Pakistan (Pvt.) Ltd. and another (2010 SCMR 1234) that" employee was Rice Inspector and nature of duties discharged by him were that he had to make decision on the subject which involved application of mind and decision based on rational approach. A job, involving the exercise of application of mind and rational approach, was held; cannot be regarded as manual or clerical in nature".
9. In view of above, the petitioner does not fall in ambit of workman under Standing Orders Ordinance, 1968. Therefore, the petition under Section 33 of IRA, 2012 is not maintainable. The same is returned to be presented to appropriate forum. There is no order as to cost. File be Consigned to R.R.