DECISION Both these appeals are directed against the orders of learned Presiding Officer, Sindh Labour Court No, IV, dated 22-5-1989. As the points of law and facts involved in both the appeals are similar, I will dispose them of by this single decision.
2. In Appeal No, Kar. 316 of 1989 originally 14 applicants filed grievance petitions, but grievance application of only 12 was admitted as two applicants remained absent at the time of presentation and also thereafter. However, only one of the applicants namely Saeed Ahmed led evidence in support of his grievance, therefore only his grievance petition was allowed, while grievance petitions of the remaining applicants/respondents were dismissed and no appeal has been filed by them against the order of dismissal of their grievance petitions. Similarly in Appeal No, Kar. 317 of 1989 six respondents had filed separate petitions before the learned Labour Court, which were disposed of by single order and grievance petition of only applicant/respondent Abdul Qayyum, who had produced evidence in support of his claim was allowed, while the grievance petitions of the rest of the applicants/respondents were dismissed and no appeal has been filed against the order of dismissal. These appeals are, therefore, only with respect to the impugned orders of the learned Labour Court allowing grievance petitions of respondents Mohammad Saeed and Abdul Qayyum, who would be referred to hereinafter as 'respondents'.
3. I have heard Mr. Aftab Ahmed Alvi, Advocate for the appellants and Mr. Mohamood Mubbassir, representative for the respondents.
4. Mr. Aftab Ahmed Alvi did not dispute the contention of the respondents that they were workmen.
In the grievance petitions, the respondents claimed that they were working as workmen for more than nine months and therefore prayed, that the appellants be directed to confirm them in their service from the date of appointment, issue permanent tickets to them and to pay their consequential difference of emoluments. The fact that they had been working for more than nine months is also not disputed.
5. The categories of workmen are classified in Standing Order No, 1, as (1) Permanent, (2)
Probationer, (3) badlies, (4) temporary and (5) apprentices. The "Permanent Workman" has been defined as a workmen, 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.
"Temporary Workman" has been defined as a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months.
6. Admittedly the two respondents Mohammad Saeed and Abdul Qayyum have been working in the posts for more than nine months. There is no evidence to show, that the posts against which they were working were of temporary nature likely to be finished within a period not exceeding nine months. Similarly there is no evidence to show, that they have not satisfactorily completed probationcry period of three months. The fact that they had completed more than nine months would also prove, that they have satisfactorily completed probationary period of three months.
7. The only contention of Mr. Aftab Ahmed Alvi is that under the settlement arrived at between the C.B.A. and the management all the chowkidars / workmen were to be regularised from 1-6-1988 and that out of 59 chowkidars 57 have been regularised from the said date in accordance with settlement and have not filed grievance petitions. Be that as it may, as pointed out by the learned Labour Court in the impugned order this settlement does not debar the workmen from claiming their right to be confirmed earlier to that, if B they had acquired such right.
8. I have already pointed out, that under the 'Classification of the Workmen' under the Standing Order I the respondents fall within the category of "Permanent Workmen" and therefore are entitled to be declared and treated as "Permanent Workmen". This right is guaranteed under Standing Order No, I. It is settled law that parties cannot contract' out of law. Under Section 9 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Ordinance would not affect any settlement or award which was in force before promulgation of the Ordinance, if the conditions of employment under that settlement or award were more favourable to the workmen. Conversely the agreement or settlement would also not affect terms and conditions of Employment under Standing Orders if they arc more favourable to the workmen, than the conditions and terms under the settlement.
9. Mr. Aftab Ahmed Alvi has relied upon Section 39 of the I.R.O. which provides, that the settlement and awards between employer and C.B.A. would be binding on all the parties. He has also relied on PLD 1976 Lah. 601, wherein it has been held that the Tribunal could not go into vires of enactment under which it had been created, but it is its duty to determine if it had the jurisdiction in the given circumstances. The settlement, no doubt, is binding upon the parties provided under the settlement, the parties do not contract out of law and impose upon workmen such conditions, which are less favourable than those under the law viz. Standing Orders Ordinance which are admissible to them. Furthermore, under the settlement, it was binding upon the appellants to regularise all the workmen from 1-6-1988 but there is no such condition imposed upon the workmen that they would not claim regularization from earlier date. He has also relied upon 1978 PLC 105. In that case the demand for reinstatement of the workman, which was included in the Charter of Demands, was withdrawn at the time of arriving at a settlement between the parties.
The Memorandum of Settlement further provided that no further demands under heads agreed upon or withdrawn shall be raised or considered during the validity of agreement. It was therefore held by N.I.R.C. that the demand made by workman for reinstatement was not maintainable and the petitioner was estopped from agitating issue of reinstatement once again. I need not go into cause there is no corresponding binding agreement in the instant case in the settlement whereby the workmen undertook not to raise demand for regularization from a period prior to 1-6-1988.
10. In PLD 1960 supreme Court 151 their Lordships have observed that agreement entered into under settlement is binding on employers and employees. There appears to be no dispute about this proposition of law. For the reasons already discussed, under this settlement the respondents are not barred from raising claim for regularization prior to 1-6-1988.
11. In view of aforesaid discussion the appeals of the appellants are dismissed.