ABID HUSSAIN CHATTHA, J.----The brief facts leading to this constitutional Petition are that Respondent No.1 (the "Respondent") filed a Grievance Petition before the Punjab Labour Court No.IV, Faisalabad (Camp at Jhang) (the "Labour Court") submitting that he was appointed on work charge / daily wages basis on 20-3-2010 as Security Guard against a regular post by the Government of Punjab, Irrigation Department (the "Department"). He was then appointed as Baildar in the year 2012-2013 and again appointed as Boatman on 11-7-2012 to 30-6-2013. He performed his duties to the satisfaction of his senior officers and was getting' salary on monthly basis. He completed probationary period successfully and complied with all conditions for the said work charge post. He sought his regularization since his first appointment with the back benefits.
The Labour Court after recording evidence decided his Grievance Petition vide order dated 17-5- 2018 in his favour. The petitioner filed Appeal before the Punjab Labour Appellate Tribunal, Lahore (the "Appellate Tribunal"), which was dismissed on 05.12.2018. Accordingly, the Petitioner assailed the impugned order dated 17.05.2018 passed by the Labour Court and Judgment dated 05.12.2018 passed by the Appellate Tribunal before this Court.
2. The learned Law Officer submitted that the Respondent was hired on work charge basis in 2010, was re-employed from time to time for short intervals as per need of the Department on work charge basis and eventually stood terminated on 30.06.2013 after the lapse of period for which he was last employed. He was employed for a brief period of time. The Grievance Petition field by him on 28.03.2014 was time barred. This fact was observed by the Labour Court in paragraph 9 of its Judgment but the same was brushed aside by holding that since the Respondent was terminated verbally without issuing any show-cause notice or charge sheet or holding inquiry, therefore, the verbal order of termination was void ab initio and no limitation runs against void order. The mandatory provisions of the Punjab Industrial Relations Act, 2010 (the "PIRA") and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the "Standing Order") were erroneously held to be applicable upon the Respondent because he was engaged by the Government Department having statutory rules of service and as such the Department falls in 'administration of the state' in terms of the provisions of PIRA. He further stated that the Respondent stood automatically terminated from service in accordance with the terms and conditions of his employment, therefore, he could not claim regularization of his service. He relied upon the case titled, Province of Punjab and 3 others v. Gul Hassan and 33 others, 1992 PLC 924. In this case, the Honourable Supreme Court observed in paragraph 3 thereof, as under:- "The very first proviso to section 1 of the West Pakistan Ordinance No. VI of 1968 known as West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provides that "nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein". Article 240 of the Constitution of 1973 provides that the "appointments to and the conditions of service of persons in the service of Pakistan shall be determined in the case of the service of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly". Article 241 provides "until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government". The Civil Servants Act does not cover within its ambit certain categories of workmen. However, there exist statutory rules on the subject in the form of "The West Pakistan Buildings and Roads, Department Code."
3. The learned Law Officer then relied upon case titled, Province of Punjab through Secretary Population Welfare Department and 2 others v. Farzana Basharat and 2 others, 2020 PLC 260, wherein, the primary question before the Court was whether the Labour Court and the Appellate Tribunal could have exercised jurisdiction regarding an employee who is working for a Government Department and can such an employee invoke the jurisdiction of the Labour Court seeking regularization of his post. The other pertinent question was whether a Government Department can be categorized as 'Commercial Establishment' under the Standing Order or PIRA. Paragraph 6 of the Judgment is reproduced below:- "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 theatre, and such other establishment or class thereof, as Government may, by-notification in the official Gazzette, 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 applicable 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 employs 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 department 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."
4. In the aforesaid Judgement, it was also held, that regularization of an employee is governed under the Punjab Regulations of Service Act, 2018 which importantly exclude persons applying under special pay packages. A government employee must advance his claim of regularization under the said law and if the claim of the employee is prior to the coming into force of the said law (as in the titled case) then on the strength of a policy or notification that addresses the issue of regularization in contrast to merely seeking regularization with the passage of time through the PIRA or the Standing Order on account of the reason that regularization prerequisites a sanctioned post with a budget.
5. Further reliance was placed on case, Parks and Horticulture Authority and others v. Ejaz Ahmad Sial, 2020 PLC (C.S.) 214, in which regularization in the first instance was held to be an executive function requiring sanctioned post as it involve financial considerations upon government exchequer. It was stated that since the employee was employed on temporary basis, therefore, he could not have been reinstated as there was no sanctioned post, against which he could be absorbed.
6. Reliance was placed on case, Province of Punjab through Secretary Agriculture Department Lahore and others v. Muhammad Arif and others, 2020 SCMR 507.
7. On the other hand, learned counsel for the Respondent submitted that the Judgments passed by the Labour Court and Appellate Tribunal are in accordance with law and have been passed after taking into account the entire evidence led in the case. He relied upon the cases titled, Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others, 2018 SCMR 1405 and Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others, 2018 SCMR 325.
7. Arguments heard and record perused.
8. After recording evidence, it was established that the Respondent was appointed on work charge basis as Security Guard w.e.f. 20.03.2010 to 15.06.2010 vide order dated 28.03.2010. He was reappointed against the said post for the period from 01.11.2010 to 28.02.2011 vide order dated 29.10.2010 and from 02.03.2011 to 30.06.2011 vide order dated 01.03.2011. Thereafter, he was appointed as Baildar w.e.f. 01.07.2011 to 30.06.2012 vide order dated 30.06.2011. After that, he was, once again, appointed as Boatman on work charge basis w.e.f. 11.07.2412 to 30.06.2013 vide order dated 10.07.2012 and eventually stood terminated upon the completion of period of last appointment.
9. The letter regarding appointment of the Respondent on work charge basis was issued with a specified period ending on 30.06.2013. As such, the Respondent stood terminated on the expiry of the said period. Therefore, there was no occasion to issue any show-cause notice or letter of termination. The letter dated 10.07.2012 clearly depicts that he was employed for a period from 11.07.2012 to 30.06.2013 and it specified that his work charge service will be dispensed with on the expiry of period for which he was employed. Hence, it is established that the Petition was time barred under Section 33 of the PIRA.
10. Reliance by the Respondent upon the Muhammad Altaf case, 2018 SCMR 325 and Tanveer Sajid case, 2018 SCMR 1405 (supra) is misplaced. The said cases are distinguishable for the reason that applicability of PIRA and the Standing Order was not in issue. Further, the cases were not regarding a Government Department but that of an independent statutory institution.
11. The upshot of the above discussion is that the Standing Order and PIRA did not apply to the case of the Respondent. The Gul Hassan case, 1992 PLC 924 (supra), Farzana Basharat case, 2020 PLC 260 (supra) and Ejaz Ahmad Sial case, 2020 PLC (C.S.) 214 (supra) are squarely applicable to the case of the Respondent. Hence, the entertainment of the Grievance. Petition, its adjudication and direction to regularize the Respondent from 11.07.2012 i.e. the date of his appointment as Boatman and holding that he is entitled to get back benefits under the law including all emolument is held to be without jurisdiction. Accordingly, the titled constitutional Petition is accepted and consequently, the impugned order dated 17.05.2018 passed by the Labour Court and Judgment dated 05.12.2018 passed by the Appellate Tribunal are set aside.