This is an application under section 25-A, Industrial Relations Ordinance 1969, filed by Shahnawaz of Pakistan Steel Mill for re-instatement against the wrongful dismissal.
2. Applicant was working with the respondent in the Department of Township, Estate and Farms
(TAT) at Pakistan Steel, Karachi since 20-7-1973 as a daily-were worker and was assured by the respondent that he will be taken as a regular worker as soon as there was a vacancy.
3. Applicant was given an offer of appointment on 8-11-1984 for the regular job of a skilled worker which he accepted yet he remained as a daily-were worker.
4. In spite of assurance by the respondent of the permanent job respondent dismissed him arbitrarily without giving him the right of permanency in spite of clear vacancy. Applicant also claim that he had worked for the period of 183 days in the proceeding 12 months prior to notice of grievance of 25-8-1985 and this right of permanent workman has also become his secured right under the I.R.O.
5. Pakistan Steel Mills Corporation has raised number of factual aspects besides the point of law regarding limitation and non-compliance of the provisions of section 25-A, I.R.O. Without specifying as to what was the non-compliance of section 25-A. However, on the factual aspect Steel Mill has stated that various plants, complexes, units, offices, etc. Are spread over a large area and numerous machines, plants equipment, etc. Operate day and night, as such there are occasions when casual or temporary nature of work is required to be done and persons are engaged for short time at the gate of the Mill and offer services. Applicant was also one of those who was engaged for casual or temporary work. Steel Mill management has also further explained that the issuance of gate pass does not necessarily indicate that he was engaged on every day to establish the right of continuance.
6.Following are the points for determination: (i)Whether the applicant was employed as, daily-were workman in the respondent Establishment or whether he was permanently employed with all the privileges due as a permanent workman in the establishment.
REASONS:
1. In para. 6 of the notice of grievance, applicant has shown that he was unlawfully dismissed from service on 16-6-1985 without assigning any reason. In other words he has shown, that time of limitation, starts from 16-9-1985 when he was dismissed unlawfully. In para. 8 of the petition he has shown that he was removed from the job on 25-8-1985 when the first grievance notice was sent on 25-8-1985. The time of limitation therefore is the important point for decision as to when the cause of action arose. The first dismissal is shown on 25-8-1985 and in the notice of grievance, dated 5- 11-1985 the dismissal is shown on 16-9-1985. The grievance notice sent on 15-11-1985 was received on 16-11-1985 Annexure-A/6. Respondent on the other hand has not come out, with the specific plea, that no notice of grievance was served or sent except to contend that there is no compliance of the provisions of section 25-A. Respondent has been, more guarded and had taken extreme care to disclose, the fact of the non-maintainability without mentioning whether the non- maintainability is due to the fact of the non-service of notice or some other reasons. The Court has examined the postal receipt on 4th November produced by the applicant, in the case. If this is the starting point of limitation taken from the date of dismissal that is 16-9-1985 the application by the applicant Shahnawaz is in time within three months.
2. The second aspect, which is very important, in the case is whether Shahnawaz was a permanent employee. The letter Annexure-A/1 which is, dated 8-11-1984 addressed to him has shown the reference to his application and the specific interview by offering the post of skilled workman subject to the clause, that he will be on probation for a period of three months. At the same time, entry pass which is produced as Annexure-A/2 shows, that he was a daily were worker in the position as helper in the Civil Maintenance Department. There is also gate-pass, which also confirms that he was on daily were from 1-5-1984 to 28-7-1984. In the earlier entry pass, he is shown from 4-12-1984 to 31-1-1984.
3. In this context, also factual aspect, in the evidence is also recorded, to confirm whether Shahnawaz was initially offered the post of skilled worker, on the probation for three months, and how far he has become entitled to permanency of the job.
4. It is significant to mention here that in the cross-examination to which he has been confronted by the respondents counsel he has admitted in the first place, that the offer of appointment order, form is not produced in the original. It is a carbon copy. He has also shown that there was no interview prior to the issuance of the appointment letter nor he gave the joining report or appeared before the Medical Superintendent for Medical Examination. Shahnawaz has also stated that he did not work on daily were. He used to get monthly wages. At the same time he has confirmed that he used to get Rs.35, per day which came to Rs.1,000 monthly. He has also not produced the salary slip of the personal number on which he draws the salary from administration.
5. With his evidence, the Court has referred the evidence of the officer of the T.E.F. Department Mr.Ejaz Hassan. He has admitted that there was appointment letter in the term of offer issued on 8- 11-1984 by Deputy Chief Engineer. He has also admitted that Shahnawaz was working in the Steel Mill from 20-7-1983 as the daily-were worker. He has admitted that permission was granted to Shahnawaz to travel from bus from 1-5-84 to 28-7-84. He has been shown certain annexures where he shows the seal of Fayyaz but he is not sure whether this is signature of Mr. Fayyaz. At the same time when he is confronted with notice of grievance he says that the seal which was on the notice is not the seal of the T. E. F. Department. Finally his evidence has been impeached, by the applicant's counsel on this point whether he has knowledge of the facts of the case. He. Has very frankly admitted that he has no knowledge of the facts of the case nor he is in a position to say that Shahnawaz had worked for 90 days.
6. With this evidence available it is surprising, that respondent witness Ejaz Hassan, if has appeared on behalf of the administration in the Court to defend the petition of the Steel Mill he has no knowledge of the facts of the matter. By this ignorance of the knowledge of the fact he has not only wasted .The time of the Court but also did not do proper justice to the merits of the respondent's case, which otherwise the respondent witness would have done on behalf of the Steel Mill to put up the case before the Court in the proper perspective where not only the Court is assisted to reach the truth by doing justice to both the sides but also found that he simply wasted the time.
7. However, whatever evidence is available, there is also question of law to be raised how, far Shahnawaz has become permanent if according to Ejaz Hassan, he has worked since 1983. The Court has found absolute contradiction in the statement of Shahnawaz himself, and, therefore, has rather taken further care to examine this document Annexure-A/l, how far this is reliable document.
In this document of the offer of appointment, if the Steel Mill witness has admitted that this is issued by the Deputy Chief Engineer, it should be accepted that there was application and there was interview, and the test. Whereas Shahnawaz has said, in the evidence, that there was no interview before the issuance of the appointment letter of which he has given the reference. He did not give even joining report. The document, therefore, becomes the question able document to, have the basis of reliance whether this mischief was played by the lower subordinate without the knowledge of the higher officers of the administration. Otherwise why there should not be consistency in the version of the applicant, who himself ha: produced, his offer and himself has said, that appointment letter was signed, by him and sent to the concerned section for acknowledgment. He has not produced the copy of the offer signed, by him nor Mr. Ejaz Hassan has produced. Obviously from the trend of the cross-examination it appears to show that no interview has taken place when Shahnawaz himself has accepted this position.
8. If Shahnawaz has said that, he was helper and had worked for more than 183 days or according to Mr.Ejaz Hassan since 1983 with continuous service, the main question is whether he has become permanent by continuity of service.
9. In this context, reference is made to the definition of section 2(g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The workman has been classified in the categories of permanent, probationer, Badli, temporary, apprentice. Section 12 of the said Ordinance further has referred to those workmen who are also shown monthly-rated, weekly-rated, daily-rated or piece rated. Of course the word daily rate worker, is not found in definition of section 2 (g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance.
10. Permanent has been shown as a workman who is, engaged on work of permanent nature, secondly the work of permanent nature which is to last more than 9 months, and thirdly he has satisfactorily completed a period of three months in the same establishment, and then it also includes a Badli who has been employed for continuous period of 3 months or 183 days during the period of 12 consecutive months. Badli is also defined, means a workman who is appointed in the post of permanent workman, or probationer who is temporarily absent.
11. In view of the definition, therefore, to enjoy the right of permanency under the law the element of probation apart from the nature of work of permanent nature is the important requirement, at the time of selection. Shahnawaz himself has contradicted, that there was no interview and, therefore, any attempt made by producing the offer of appointment is a suspected document that he was offered the job with certain conditions of probation to create the cause of action, for the permanent job after completing the period of daily-were worker Daily-were worker remains the daily-were worker whose category if is not found, in section 2 (g) is found in section 12 means the daily rate employee. If has recognized the daily were employee he remains the daily were employee till he satisfies those qualifications which are given in section 2(g) of the probationary satisfaction. There is no element of probation in the daily were working. However in view of the matter if applicant has worked in the same Steel Mill for a considerable period of time, he must be considered at the time of future selection for permanency.
12. So far as the reinstatement is concerned Mr.Shahnawaz who complains of the wrongful dismissal, if the Court accepts the plea of the respondent that he was the daily were worker and not permanent workman or even temporary workman, the respondent Steel Mill representative may argue the case that no order of termination was I necessary in the case of daily-were worker and, therefore, the contention of the alleged dismissal. Raised by the applicant did not arise. The Court has examined this aspect on the merits and agrees with Mr. Mansoor Alam to this extent that he may not claim the right of permanency for, he has not passed through those stages of probationary nature of working and other legal requirements but notwithstanding that disability Shahnawaz is still a workman within the meaning of section 12 of the I.R.O. Where the workman whether be of ad hoc nature, temporary as a workman for the purpose of the application of the sub-provision 3, the statement of reasons must be given in writing. There may be conflict of contention by the counsel that notice in the case of the daily-were worker even may not be necessary. But the Court is of the view that statement of reasons is the mandatory requirement for the Court to have the idea that the discretion was exercised in accordance with the settled principle to avoid the arbitrary decision of the employer when the labour law protects the workman within its framed work in the matter of employment and to redress the wrong. Consequently in the absence of the order stating the reasons the impugned termination instead of calling it as a dismissal cannot stand. He is re-instated as a daily wageworker till the terminated affected in accordance with law. The respondent will have regard to this fact that his continuity of service also be considered both at the time of selection and the skill he has used for any casual work, if there is a work of that nature on the same job.
Application is allowed.