Anwaar Hussain, J. Through this single judgment, the present as well as connected petitions detail whereof is given in the Schedule attached to this judgment are simultaneously being decided as a common question of law is involved.
2. The private respondents before this Court, in present and connected matters ("the respondents") were employed, inter alia, as Maali/Gardeners, Plumber, Drivers by the petitioner- PHA, as 'daily wagers', who, having put approximately 10 years in service as daily wagers, approached the Labour Court, for declaration as a permanent workman as also the regularization of their service. Labour Court No.2, Lahore through the impugned orders, of different dates, decided the matter in favour of the respondents by declaring them as permanent workmen, however, their prayer to the extent of regularization was declined. Against the said orders, both sides preferred appeals and through judgments of different dates, the Labour Appellate Tribunal ("the Tribunal") accepted the appeals of the respondents, whereas, the appeals preferred by the petitioner-PHA were dismissed, hence, the present as well as connected constitutional petitions have been filed.
3. Learned counsel for the petitioner-PHA submits that the findings in general, and that of the Tribunal in particular, are without appreciating the applicable law and the jurisprudence developed thereof. He submits that in particular, the judgment of the Tribunal is bereft of any reasoning and in this regard, para 11 of the impugned judgment dated 21.06.2023 (in present case) is referred. Elaborating his stance, learned counsel submits that in order to avail benefit of the labour laws, the aggrieved person has to first establish that he falls under the definition of the term 'Workman' as provided in the Punjab Industrial Relations Act, 2010 ("PIRA") and once this threshold is met, the enforcement of rights conferred under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ("the Ordinance") is to be considered. Places reliance upon case reported as Messrs Pak Telecom Mobile Limited v. Muhammad Atif Bilal and 2 others (2024 SCMR 719). While referring to definitions of the terms 'Workman', 'Establishment' and 'Industry', under the PIRA, submits that a conjunctive reading thereof established that the grievance petition can only be filed by the workman who is employed in an Industry or a Commercial Establishment, in relations to an industrial dispute and in the present case, the petitioner-PHA neither falls under the definition of Industry nor under a Commercial Establishment let alone that there was any industrial dispute between the parties. In this regard, places reliance upon cases reported as Province of Punjab through Secretary Population Welfare Department and 2 others v. Farzana Basharat and 2 others. [2020 PLC (CS) 260]; Parks and Horticulture Authority and others v. Ijaz Ahmad Sial (2020 PLC (C.S) 214); Bashir Ahmad and others v. The Director General, Lahore Development Authority, Lahore and others (2020 SCMR 471) and a reported decision rendered in W.P. No.15270 of 2023 titled Province of Punjab and 05 others v. Jaffar Ahmed and 02 others and W.P. No.15295 of 2023 titled Province of Punjab and 04 others v. Mubashar Ali Shahzad and 02 others, available at Website of this Court as (2023 LHC 2596). He further contends that even if the grievance petitions of the respondents were maintainable before the Labour Court, the respondents do not fall under the definition of the term 'Workman' as contemplated under the Ordinance. He draws attention of this Court to Section 1(4)(c) of the Ordinance to contend that the employees of an industrial and commercial organization, which does not have statutory rules of service falls under the ambit of the term 'Workman' whereas in the present case, the petitioner-PHA has statutory rules of service in terms of Section 31 of the Parks and Horticulture Authority Act, 2012 ("PHA Act"). While concluding his arguments submits that without prejudice to the earlier submissions, even if the respondents are considered as permanent workmen, their regularization could not be ordered albeit through a non-speaking order inasmuch as the term 'regularization' is not envisaged under the labour laws and is dealt with under the Punjab Regularization of Service Act, 2018 ("Regularization Act") and/or the policy of the Government, formulated from time to time, which is not applicable in the present case. Places reliance upon case reported as Vice-Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others (2024 SCM R 527). He submits that since the judgment of the Tribunal is non-speaking and the respondents are otherwise safeguarded after conferment of status as permanent workmen, the regularization in particular was not permissible.
4. Conversely, learned counsel for the respondents submit that the objections raised by the petitioner-PHA that the jurisdiction did not vest with the Labour Courts as well as the Tribunal on account of petitioner-PHA having statutory regulations is irrelevant inasmuch as Regulation No.1(3) of the Parks and Horticulture Authority (Appointment and Conditions of Business/Service)
Regulations, 2014 ("the Regulations") itself contemplates that the same are only applicable to the regular employees of the petitioner-PHA and unless the respondents are regularized and/or declared permanent, they do not fall within the clutches of the Regulations, more particularly, when the definition of a regular employee excludes the persons who are employed on daily wages.
Contends that the objection that the respondents cannot take benefit of the Ordinance since the petitioner-PHA does not fall under the definition of an 'Establishment', is belied when Sections 2(f)
(v) and 2(b) of the Ordinance are read in conjunction with the powers and functions of the petitioner-PHA contemplated under the PHA Act. Regarding regularization of the workmen, by the Tribunal, after they are declared permanent submits that the same is a consequential relief, which is inbuilt under the law and gets traction from Standing Order No.12 and the Tribunal has correctly passed the impugned judgment(s).
5. Arguments heard. Record perused.
6. The pivotal issues for determination before this Court are as under: i. Whether the respondents who are employees of the petitioner-PHA, on daily wages mostly for more than 10 years, fall under the definition of 'workman'? ii. If the answer to the above question is in affirmative, what is the distinction between the regularization of service and the declaration as a permanent workman and whether the Tribunal was justified in directing the regularization of services of the respondents?
7. In order to answer the first question, it will be imperative to examine various provisions of the PIRA, the Ordinance, and the PHA Act to determine whether the respondents before this Court are workmen.
8. The Ordinance was enacted to regulate employment conditions in an industrial and commercial establishments, across the country, whereas the PIRA governs the formation of trade unions, regulation of relations between the employers and employees, and the resolution of labour disputes within province of Punjab. It provides a legal structure for collective bargaining and safeguards of workers' rights. The Ordinance defines a 'Workman' as any person employed in an industrial or commercial establishment to perform skilled or unskilled, manual or electrical work for hire or reward [Section 2(i)] whereas an 'Establishment' refers to any organization where any industry, trade, business, or occupation is carried out [Section 2(ix) of PIRA]. The term 'Industrial Establishment' includes entities engaged in manufacturing, production, or related activities [Section 2(f) of the Ordinance] whereas 'Commercial Establishment' encompasses establishments involved in trade, business, or services [Section 2(b) of the Ordinance]. In so far as the PHA Act is concerned, there is absence of a specific definition of 'Workman' therein, however, it necessitates reliance on definition of the term 'Workman' under the Ordinance and the judicial interpretations thereof to ascertain the status of the respondents.
9. At this juncture it will be appropriate to consider the case law relied upon by learned counsel for the petitioner-PHA in support of his argument that the respondents do not fall under the definition of 'Workman' - both under the PIRA and the Ordinance. In case of Messers Pak Telecom Mobile Limited supra, the aggrieved employee therein was appointed as Senior Executive (Core Network Planning) in the Technical Wing of the employer department and the Supreme Court of Pakistan, inter alia, held that initial burden is on the person asserting the fact to prove that he falls under the purview of the term 'Workman', both under the PIRA as well as the Ordinance. In present case admittedly the respondents are in service for more than 10 years and they are performing manual work and not any executive function, therefore, meet the criteria set out under the PIRA and the Ordinance, hence, the ratio laid down in said case is not applicable to the case of the respondents.
In so far as the case of Farzana Basharat supra is concerned, in the said case, the issue was regarding the employee of the Population Welfare Department, Government of the Punjab and it was held that a government department does not fall under the definition of the term 'Establishment' under the PIRA, which is not the position in present case. The respondents are not working in a Government Department but under the control of an Authority (the petitioner-PHA) established under the PHA Act. Even otherwise, the Supreme Court of Pakistan held that the individuals engaged on a daily work charge/wage basis, performing duties similar to the regular employees, in the government department are entitled to the benefits under the labour laws. Case reported as Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547) is referred in this regard.
10. Suffice to observe that the nature of the duties performed is crucial in determining the status of a workman irrespective of the employment terms. Mere existence of the statutory rules does not exempt an organization from the application of labour laws if the employment conditions align with the definition under the relevant statutes. Much emphasis was laid down on the decision in case of Ijaz Ahmad Sial supra, whereby a learned Division Bench of this Court upended findings of a learned Single Bench, which allowed regularization of the petitioner therein (incidentally the PHA), as Maali. I am of the opinion that the reliance is misplaced inasmuch as in the said case, the employee who admittedly worked as a Court Clerk, directly approached this Court and claimed regularization and the learned Judge-in-Chambers allowed the petition and direction was passed to regularize the petitioner therein, as a Maali. In present case, there is no controversy as regards the posts, which the respondents (mostly Maali) are occupying, for the last approximately 10 years.
11. Keeping in sight the above analysis of the judicial pronouncements, inter alia, relied upon by the petitioner side, it has been noted that the PHA Act does not define the term 'Workman', and in terms of dicta laid down in case of Messers Pak Telecom Mobile Limited supra, the initial burden was on respondents to prove that they fall under the purview of the term 'workman', both under the PIRA as well as the Ordinance. The definitions of the term 'Workman', 'Establishment' etc., are to be conjunctively examined while keeping in sight the scope of the PHA Act. Under the PHA Act, the petitioner-PHA has been established which is responsible for the regulation, development, and maintenance of the public parks, green belts, and green areas in Punjab. Its functions include landscaping, plantation, and beautification projects, as well as regulating billboards and outdoor advertisements to promote open and unrestricted views. This Court is of the opinion that the definition of an 'Industrial or Commercial Establishment' under the Ordinance, broadly includes any entity engaged in systematic economic activities that involve labour and service delivery. The PHA Act establishes the petitioner-PHA as a regulatory and operational body for maintaining public parks and green spaces. While its primary function may not be industrial or commercial in the conventional sense, the engagement of petitioner-PHA in systematic horticultural maintenance falls within the scope of 'Commercial Establishment', particularly, given its structured employment model and the revenue-generating activities. Admittedly, the respondents, who are mostly gardeners/Maali , are engaged in execution of the manual labour, which typically involves planting, watering, pruning, and maintaining green spaces, garden and other horticultural activities, pursuant the core object for which the petitioner-PHA has been established under the PHA Act.
Work of the respondents does not involve managerial or supervisory responsibilities as was the position in case of Messers Pak Telecom Mobile Limited supra. Their work is permanent in nature, which aspect gets traction from the fact that they are working for the last many years. Similarly, the question of presence or absence of the budgetary allocation becomes irrelevant in view of the fact that the respondents have been engaged by the petitioner-PHA, for more than a decade. The manual functions which the respondents perform are integral to the petitioner-PHA's operations and involves physical exertion and skill. While the petitioner-PHA is a governmental body, its activities such as landscaping, maintenance of parks, and urban beautification--align with services provided by the commercial establishments.
12. Based on the legislative definitions under the PIRA, the Ordinance and the above referred judicial pronouncement of Supreme Court of Pakistan in case of Ahmad Hussain supra, I am of the opinion that for the purposes of the Ordinance, the petitioner-PHA is a commercial establishment and the respondents are workmen. Consequently, they are entitled to the rights and protections outlined in the Ordinance and/or the PIRA. The respondents having demonstrated continuous service and engagement in functions integral to the objectives of the PHA Act as outlined in Section 4 thereof and hence, were rightly held entitled to be recognized as permanent workmen by the Labour Court(s). Suffice to observe that for a workman to be declared as permanent, it is nowhere mandated under the law that the said post should be a sanctioned post rather a workman working on a post for a statutory recognized period ipso facto becomes a permanent workman, by operation of the law. Therefore, permanent status of a workman cannot be made contingent upon the existence of a sanctioned post as the same would amount to reading into law what the law does not provide for.
13. At this juncture, it is imperative to observe that the Government of Punjab in its policy notification bearing No.SO(ERB)5-44/2019/WC-DW-Policy dated 29.01.2021 ("the Notification") while delineating the status of work charged employees, daily wagers and contingent paid staff itself provides that in future, all work-charged employees, daily wagers and contingent paid staff shall be treated as workmen within the meaning of the term 'Workman' under the Ordinance. The Notification was issued pursuant to the decision of Hon'ble Supreme Court of Pakistan in case of Ahmad Hussain supra. The relevant part of the Notification reads as under: "Pursuant to the approval of Provincial Cabinet through circulation among the Provincial Ministers under Rule 25(1)(b) of the Punjab Government Rules of Business 2011 and in terms of Rule 27 and Rule 28(15) of the Punjab Government Rules of Business 2011, the Policy for work charged/contingent paid and daily wage employees is hereby notified as under POLICY FRAMEWORK FOR WORK CHARGED EMPLOYEES, DAILY WAGES AND CONTINGENT PAID STAFF 1.....
2.....
3.....
4. POLICY GUIDELINES FOR WORK-CHARGED EMPLOYEES, DAILY WAGERS & CONTINGENT PAID STAFF As regards management of the work-charged employees, daily wagers and contingent paid staff employees currently working with various departments, following policy provisions are laid down: i. The cases where services of work-charged, daily wage and contingent paid employees have already been regularized as civil servants through wrong interpretation of court judgments MAY be reconsidered in the light of relevant laws under which such judgments were passed. As the matter involves interpretation of court rulings, the opinion from the Law & Parliamentary Affairs Department would be obtained in each such case. If, after proper scrutiny of the case, it transpires that the regularization of work-charged services as civil servants was not warranted by Court decisions/orders, fresh orders shall be issued strictly in accordance with the terms decided by Courts. ii. The cases already decided by the Higher Courts or Labour Courts which have attained finality shall be disposed of accordingly. iii. All those employees who have completed 09 months or more may be considered for status of permanent workmen in terms of Industrial & Commercial Employment (Standing Orders)
Ordinance, 1968 / The Punjab Industrial & Commercial Employment (Standing Orders)
Ordinance, 1968. They shall be entitled to all the rights and benefits of permanent workmen."
(Emphasis supplied)
In view of the Notification, issued by the Government, the petitioner-PHA is estopped to challenge the status of the respondents as workmen.
14. Adverting to the second question, it is imperative to point out that regularization is the formal administrative process by which an employee's status in the organization shifts from the temporary, contractual, or ad-hoc to the regular by adhering to the prescribed procedures and the criteria established by the employer or under the relevant statutes. This process often involves considerations of the tenure, performance, and the fulfillment of specific conditions. Though the Courts have used a term regularization with respect to workman entitled to be declared permanent as if both regularization and permanent connote one and the same thing, it is observed that the concept of regularization is embedded in the civil service law and the regularization introduces the regularized employee into the realm of civil service. This drives its basis from the legislative content in which both these terms have been used. Regularization has been used in the Regularization Act and the preceding policies of the government with respect to regularization transforming such employees into civil servants. Conversely, a declaration as a permanent workman pertains to the recognition of an employee's status based on the nature and duration of his employment, irrespective of the formal regularization procedures envisaged under the Regularization Policy or the Regularization Act, as the case may be. This status is typically determined by the statutory definitions and protections afforded to the workers who have rendered continuous service over a specified period in accordance with the applicable labour laws.
15. This Court is of the opinion that the Labour Courts do not have the authority to introduce the regularization, which applies to the contractual, ad-hoc, or daily wage employees in public authorities under the civil service rules and/or a specific government policy. Courts cannot lose sight of the fact that the workmen engaged in non-administrative roles, are covered by the Ordinance and the PIRA and are entitled to certain statutory rights as permanent workmen, as held in case of Ahmad Hussain, supra. These rights include job security, fair wages, gratuity and the ability to form or join trade unions. On the contrary, regularization is an administrative discretion rather than a statutory or vested right. Employees, like the respondents, in semi-autonomous bodies such as the petitioner-PHA, cannot claim an automatic right to regularization inasmuch as if such employees are not carrying out manual work, their regularization is subject to the government policies and availability of sanctioned posts and if they are engaged in manual work their rights are determined by the Ordinance, which does not include regularization. The argument of learned counsel for the petitioner-PHA has force that any situation opting for regularization of its employee must be either mandated by law and must carry out regularization through a well formed policy of the institution concerned as held in case of Vice Chancellor Agriculture University supra. However, the declaration of an employee, engaged in non-administrative and manual workmanship such as gardeners, drivers, plumbers as a permanent workman can be a judicial determination based on the factual matrix of continuous service, nature of duties, and fulfillment of criteria established under applicable labour laws. While labour laws ensure automatic permanency after fulfilling the statutory conditions, regularization is an administrative process applicable only to the public sector employment under the Regularization Act and/or the government policies. Suffice to note that the respondents have failed to refer to any such regularization policy applicable to the employees of the petitioner-PHA.
16. The above discussion propels to hold that the Tribunal erred in directing the regularization of services of the respondents, hence, the impugned judgments passed by the Tribunal, in present and the connected cases, are set aside to this extent only, whereas the judgments of Labour Court, Lahore, are maintained.
17. The present as well as connected petitions are disposed of in above terms.