Above noted three Labour Appeals arising out of same judgment dated 12.12.2019 passed by the learned Presiding Officer, Punjab Labour Court No. 09, Multan, whereby jointly filed grievance petition by the private respondents cited in the Appeal No. 11 of 2020 was accepted to the extent of Respondent Nos. 1, 2, 3, 5 & 7 and dismissed to the extent of Khizar Hayat' (appellant), hence through this single judgment three appeals are decided together.
2. Precise facts giving rise to the instant appeals are that the respondents Dilshad Ahmad, Anwar- ul-Haq, Tariq Shehzad, Faheem Hafeez, Muhammad Younas, Hassan Mehmood and Asghar Ali and the appellant Khizar Hayat filed joint grievance petition on 19.09.2016 against the appellant Chief Officer, Municipal Committee, Kehror Pacca under Section 33 of the Punjab Industrial Relations Act, 2010 read with Punjab Industrial and Commercial Employment (Standing Orders). Act, 2012 before the learned Labour Court No. 09, Multan with a claim that they were recruited as Operators Disposal Works on different dates ranging from October, 2014 to February, 2015 to onward by the Municipal Committee, Kehror Pacca against the permanent posts and they served on the said posts till 30.07.2016 to the satisfaction of their employer. It was stated in the grievance petition that more than 200 persons were employed in the Municipal Committee Kehror Paka and the respondents were paid salary on monthly basis without any weekly or gazetted holidays deductions and in this way on account of uninterrupted service beyond statutory period of nine months under the labour laws had attained the status of permanent employee. The respondents pressed their above demand for regularization in service before the appellant Municipal Committee but finding no positive response were thus constrained to file the grievance petition after observing the formality of grievance notice before the labour Court, Multan with a prayer for regularization in service along-with consequential back benefits. The appellant Municipal Committee contested the grievance petition and in their written reply adopted the stance that the respondents had been engaged on daily wages for a temporary period in the light of instructions received from the Local Government and Community Development Department, Government of the Punjab, on account of which they had no right for regularization. The appellant Municipal Committee disputed the service of prior grievance notice upon them and ultimately sought dismissal of the grievance petition. After observing the formalities of trial as mentioned above the grievance petition was accepted vide impugned judgment dated 12.12.2019 to the extent of respondents namely Dilshad Ahmad, Anwar-ul-Haq, Tariq Shehzad, Muhammad Younas and Asghar Ali with a direction to the appellant Municipal Committee to take these respondents on duty and confer the status of permanent employee upon them with immediate effect through written orders as Operators Disposal Works without any financial back benefits. It was clarified that previous length of service of the respondents shall be considered for promotion, seniority and pensionary benefits as per law. The grievance petition to the extent of one of the respondent/ appellant Khizar Hayat was dismissed because he had not entered in the witness box during the trial to reiterate his case vide impugned judgment dated 12.12.2019. Feeling aggrieved by the said decision, the Municipal Committee Kehror Pacca has filed the Appeal No, 11. of 2020, while the respondents Muhammad Younas, Anwar-ul-Haq, Muhammad Tariq Shehzad and Asghar Ali have filed appeal to the extent of denial of back benefits. The appellant Khizar Hayat has filed the appeal fOr setting aside the impugned judgment of learned labour Court, Multan to his extent and for regularization in service with back benefits. All the appeals are opposed from the opposite side inter-se. Arguments of the learned counsel for the parties have been heard.
3. Arguing the appeal of Municipal Committee, Kehror Pacca their learned counsel submitted that the impugned judgment passed by the learned labour Court, Multan is against law and facts as outcome of misreading and non reading of evidence and non application of judicious mind and relevant provisions of labour and substantive laws. Further argued that the learned labour Court while passing the impugned judgment failed to adhere, to a policy affirmed by the Hon'ble Supreme Court of Pakistan through a judgment dated 20.05.2011 passed in C.P No. 1259-L of 2010, whereby a criteria for regularization of daily wages has been discussed. Surprisingly during the course of arguments on these appeals the learned counsel for the appellant Municipal Committee submitted that this Tribunal has already decided Labour Appeal Nos. 31, 27, 09, 10, 04 and 08 of 2020 on 10.02.2021, of Municipal Committee Kehror Pacca filed against the employees of similar kind though against the Municipal Committee, Kehror Pacca and the instant appeals also deserve the same fate. Nevertheless, as an ultimate prayer the learned counsel sought setting aside of the impugned judgment of labour Court and acceptance of appeal. The learned counsel for the respondents vehemently opposed the appeal of Municipal Committee, Kehror Pacca by defending the impugned judgment of labour Court as perfectly legal and correct to the extent of regularization of his clients and pressing the appeal of -some of the respondents namely Muhammad Younas, Anwar-ul-Haq, Muhammad Tariq Shehzad and Asghar All submitted that his clients had been denied the back benefits without any legal basis because these respondents were never terminated from service through some written orders, so the respondents would be deemed to be in service and entitled to back benefits. Ultimately, prayed for acceptance of appeal of his clients. As regards'appeal of Khizar Hayat (L.A No. 16 of 2020) his learned counsel submitted that the impugned judgment of learned labour Court, Multan to the extent of his client was not sustainable in the eyes of law on the mere ground that he had not entered in the witness box during the trial to reiterate his main plea. In this behalf the learned counsel for the appellant Khizar Hayat submitted that under the provisions of law contained in Articles 102 to 104 and 113 of Qanun- e-Shahadat Order, 1984 and Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, when there was no denial of factual controversy between the parties regarding the length of service the grievance petition could not be dismissed on the ground mentioned in the impugned judgment. It was ultimately prayed that after setting aside the impugned judgment of learned labour Court, Multan to the extent of his client, his grievance petition be accepted with award of claimed relief.
The learned counsel for the appellant Khizar Hayat placed reliance on the cases "Dr. Arifa Farid and others v. Mitha Khan and others" (PLD 2020 Sindh 451), "Mirza Naseem Baig v. K.E.S.C. Employees Cooperative. Housing Society Ltd., and others" (2019 YLR 2609) and "Qutab Din v. Rashidan Bibi and 6 others" (2014 YLR 615). The learned counsel for the appellant Municipal Committee opposed the appeal of Khizar Hayat.
4. Heard, record perused.
5. In order to evaluate and resolve the above arguments advanced from both sides, let a review of trial proceedings conducted in the grievance petition by the learned labour Court, Multan may be made. In order to establish their claim raised through the grievance petition each respondent namely Dilshad Ahmad, Anwar-ul-Haq, Tariq Shehzad, Muhammad Younas and Asghar Ali except Khizar Hayat examined themselves as PW-1 to PW-5 and in their initial statements they reiterated their case as set up in the grievance petition and when exposed to cross-examination these respondents disputed the line of defence of the appellant. In documentary evidence the respondents tendered the record of sanctioning of post of various categories Ex.P.2; publication in the newspaper inviting applications to recruit staff on daily wages in TMA Kehror Pacca Ex.P.3 & Ex.P.4; appointment letter of the respondents on daily wages for 89 days dated 29.09.2014 Ex.P.5; for another 88 days vide order dated 30.01.2015 Ex.P.6; for another 89 days dated 02.05.2015 Ex.P.7; for another 89 days dated 30.07.2016 Ex.P.8; grievance notice and postal receipts Ex.P.9 & Ex.P.10. In rebuttal the. appellant Municipal Committee examined Aashir Javaid Gill, Chief Officer, Municipal Committee, Kehror Pacca as RW-1 and when he was tested in cross-examination he frankly conceded that the respondents Dilshad Ahmad, Anwar-ul-Haq, Tariq Shehzad, Muhammad Younas and Asghar Ali were engaged on daily wages from 02.02.2015 to 31.12.2016 for a period of 89 days successively and their orders of appointment were extended after the gap of one or two days and further conceded that one of the respondent/ appellant Khizar Hayat was also recruited in above stated manner, who was still serving. RW-1 raised a stance on his own that after 31.12.2016 the respondents were not serving the Municipal Committee. The appellant Municipal Committee also adduced documentary evidence, which included the copy of publication in the newspaper Ex.R.2; a letter regarding ban on recruitment issued from the Office of Commissioner, Multan Division, Multan dated 24.12.2016 Ex.R.3 and another letter regarding ban on recruitment from the Office of Secretary (LG & CD) Department dated 23.12.2016 Ex.R.4 & Ex.R.5; a certificate from a Contractor, Adda Fee, MC, Kahror Pacca in the name of one of the respondent Dilshad, who had served the said Contractor in the year 2018-19 Ex.R.6; a certificate from a Contractor, Adda Fee, MC, Kahror Pacca in the name of one of the respondent Dilshad, who had served the said Contractor in the year 2017-18 Ex.R.7; a certificate dated 15.06.2019 Ex.R.8; undertaking "given by one of the respondent/ appellant Khizar Hayat regarding receipt of salary through bank on the basis of daily wages Ex.R.9; appointment orders of the respondents Ex.R.10 to Ex.R.26. From the perusal of documentary evidence even adduced from the appellant Municipal Committee regarding appointment of the respondents and one of the appellant Khizar Hayat as well as frank admission of , the Chief Officer of Municipal Committee, Kehror Pacca RW-1, it is manifest that the respondents as well one of the appellant rendered service though on daily wages for a continuous period of more than two years with a short gap of one or two days, which has been termed as artificial break by the hon'ble superior Courts of this country consistently with disapproval. In this regard reference may be made to the cases "Board of Intermediate and Secondary Education, DG. Khan and another v.
Muhammad Altaf and others" (2018 SCMR 325) and "Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain" (2013 SCMR 1547).
6. As regards the length of service for which the respondents and one of the appellant rendered to the Municipal Committee though on daily wages the provision of schedule of Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 in Section 2(g)(b) depicting the status of permanent workman is quite relevant to quote hereunder for better: "(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, 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."
In addition to above situation the status of the respondents, and one of the appellant as workmen determined in Section 2(xxxi) of the Punjab Industrial Relations Act, 2010 also fully supports the respondents and one of the appellant with regard to discharge of duties assigned to them by the appellant Municipal Committee during the period of their employment. In the light of above narrated unambiguous status of the respondents duly reflected from the record of employment relied from both sides during the trial fully justified the conferment of permanent status as regular employee upon the respondents and the appellant Municipal Committee could not have avoided such responsibility on the excuse that some Commissioner or Secretary Local Government and Community Development Department, Govt. of the Punjab through some administrative letters had imposed ban on recruitment of daily wages/work charge employees in Local Government subsidiaries because such administrative actions under the law cannot go against a statutory obligations prescribed under the Punjab Industrial Relations Act, 2010 and Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, which were framed by the legislature (Parliament) having supremacy upon the working of Executive Wing of the Government. As regards a ground raised in appeal regarding non service of mandatory grievance notice upon the appellant prior to filing of grievance petition, such plea is devoid of any merit as in the evidence of the respondents copy of grievance notice and postal receipts were duly tendered to establish satisfaction of formality. Similarly, regarding another ground raised in appeal that the learned labour Court, Multan had not adhered to a policy stipulated by the Hon'ble Supreme Court of Pakistan through some judgment passed in the year 2011, the learned counsel for the appellant did not submit the copy of such judgment during arguments for the perusal of this Tribunal till dictation of this judgment. During the course of arguments on the appeal, when the learned counsel for the appellant Municipal Committee was required to clarify this ground of appeal he appeared clueless and stated that appeal had been drafted and filed by some other counsel, who is no more legal advisor of appellant Municipal Committee.
7. Now adverting to the appeal of four respondents for award of back benefits as noted and discussed above in the light of oral and documentary evidence of the parties, the respondents filed their grievance petition on 19.09.2016 when as per version of the appellant they were still serving the Municipal Committee, Kehror Pacca and received salary till the month of December, 2016.
Alongwith grievance petition the respondents filed application for grant of temporary injunction and the learned Duty Judge of labour Court, Multan passed an order on the said application restraining the appellant Municipal Committee from passing any adverse order against the respondents or stopping their salary. Record of the grievance petition shows that the respondents till the final decision of grievance petition in the month of December, 2019 never came up with some plea that they had been rendered jobless or their salary had been stopped. Resultantly presumption would be that till the passing of impugned judgment on 12.12.2019 the respondents had been in the service of the appellant Municipal Committee on daily wages. In such situation how they could have claimed back benefits is a matter of surprise. Even otherwise for the settlement of controversy of back benefits the hon'ble Supreme' Court of Pakistan in a case titled "Muhammad Bashir v. Chairman, PLAT, Lahore and others" (1991 SCMR 2087) as well as Hon'ble Lahore High Court, Multan Bench, Multan in a case titled "Manager Operation, MEPCO etc v. Ibrar Hussain etc" (PLJ 2019 (Lahore High Court) Note 100) have held that back benefits do not automatically follow the order of reinstatement, where the order of dismissal or removal has been set aside and it is a established rule that in order to obtain the back benefits the onus lies squarely upon the employee to prove that during entire period he remained out of service and was not doing any job after he was dismissed. In the instant case the respondents have no such qualification to claim back benefits if at all they were rendered unemployed during the pendency of grievance petition unless they had shown through some convincing and reliable evidence that they were not gainfully employed elsewhere. In this view of the background laying of claim for back benefits by the four respondents is without any legal justification and their appeal deserves to be dismissed.
8. Now taking up the appeal of Khizar Hay at, as -mentioned above the learned labour Court knocked out the said person on the excuse that since he had not turned up in the witness box during the trial of grievance petition like other respondents, therefore he was not entitled to main relief. As has been discussed above, the case of Khizar Hayat appellant was even more strong then the other respondents because Chief Officer, Municipal Committee, while appearing as RW-1 while facing cross-examination had candidly admitted that Khizar Hayat was still serving the Municipal Committee, Kehror Pacca, which would thus mean that he also deserved to be regularized but was not done so on a technical reason. In this regard as mentioned above the learned counsel for the appellant Khizar Hayat during arguments placing reliance on the three judgments of hon'ble Sindh and Peshawar High Court above quoted plausibly submitted that civil law of procedure contained in Order XII Rule 6 of Code of Civil Procedure (V of 1908) indeed provided that pleadings have no evidentiary value unless plaintiff and or the defendant had led evidence in support or defence of their pleadings, but exception to the said rule was that pleadings or a written statement could be considered when there was an admission on the part of defendant and further narrated that judgment on the basis of admission made in written statement could be passed. In this regard it is pertinent to quote from the judgment of hon'ble Peshawar High Court (2014 YLR 615) that "plaintiff was not bound to adduce evidence against the defendant who had admitted his claim and Court had power to grant decree at any stage where admission of fact had been made either in pleadings or otherwise". Similarly, in the judgment of Hon'ble Sindh High Court reported as 2019 YLR 2609 above discussed principle has been laid down that it is a rule that pleadings do not themselves have evidentiary value, unless the plaintiff and or defendant, as the case may be, enter the witness box and lead the evidence in support or defence'of their pleadings; but, an exception to this rule is, that pleadings or a written statement can be considered when there is an admission on the part of defendant. In the instant case although the appellant Municipal Committee in their written reply had partially conceded about the length of service of the respondent, which was more than statutory period provided under the labour laws, but during the trial of grievance petition the sole witness of the appellant RW-1 had additionally admitted about continuous service of the appellant Khizar Hayat and even during the arguments on the appeal it was not controverted that the said appellant Khizar Hayat was still serving the Municipal Committee. In view of such massive admissions on the part of appellant available on record dismissal of the grievance petition to the extent of said employee/appellant because he had not turned up in the witness box would amount to sacrificing justice upon the alter of technicality, which is not appreciable in labour matters. In this regard guidance is solicited from the dictum of law laid down in a case "Forbes Forbes Campbell and Co. Ltd., Karachi and 3 others v. Habibur Rehman and 2 others (1982 SCMR 651) and a relevant portion from the said ruling would be the apt response, which reads: "We consider that the provision of Labour laws should be construed liberally and as they have been enacted to benefit workers, they should be construed in a sense favourable to the interests of the employees and, not used as a trap. Therefore, we are inclined to agree with the High Court that it was only who had terminated her services, which should, in the circumstances of this case, be regarded as the formal grievance notice envisaged by the relevant law."
Viewing the case of the appellant Khizar Hayat from afore discussed angles it was unjust choice on the part of the learned labour Court to deny relief to a litigant which he deserved.
9. Summing up the above discussion, it is finally held that the impugned judgment dated 12.12.2019 passed by the learned labour Court, Multan to the extent of respondents not found to be suffering from any legal, procedural, jurisdictional or factual defect, error or flaw that may require interference by this forum, the appeal filed by the Municipal Committee Kehror Pacca is dismissed.
Similarly, the appeal filed by the four respondents for award of back benefits is also dismissed. The appeal filed by Khizar Hayat appellant is, however, accepted and the impugned judgment passed by the learned labour Court, Multan dated 12.12.2019 is set-aside to the extent of denial of relief to him like other respondents and it is directed that the said Khizar Hayat shall also be regularized like other respondents without back benefits in the terms settled for other respondents/co-employees.
A copy of this judgment along-with record be sent to the learned labour Court concerned for information and file of appeals to records.