DECISION ' These four appeals are directed against the single order of learned Sindh Labour Court No,VII at Sukkur, dated 14-2-1980, whereby the grievance applications filed by each of the four appellants were dismissed.
2. I have heard Mr. Syed Safdar Hussain, learned Advocate for appellants Subhan Bux and Allah Warrayo, Mr. M.L. Shahani, learned Advocate for appellant Muhammad Siddique. Mr. M.A. Muatti, learned Advocate for appellant Muhammad Jameel, Mr. Shabbir Ahmed Awan, learned counsel for the respondents/Railway and have also gone through the record and proceedings of each case.
3. The admitted facts of the case are that the appellants are employed by the respondent Railways. Appellant Muhammad Siddique was appointed as P.W. Mistry from 16-2-1977 and continued as such till he was reverted on 10-9-1985. Appellant Muhammad Jameel was appointed as P.W. Mistry on 16-3.1980 and was reverted on 3-5-1988. Appellant Allah Warrayo was appointed as P.W. Mistry on 27-4-1978 and reverted on 31-5-1988. Appellant Subhan Bux was appointed as P.W. Mistry on 4-12-1980 and reverted on 13-2-1988. The post of P.W. Mistry is in BPS 8 or 9 whereas the posts to which the appellants have been reverted are in BPS 1 or 2. The appellants allege that they have been reverted without any show-cause notice which is against the Rules as well as principle of natural justice and therefore after serving grievance notices upon the respondents filed grievance petitions. The respondents however claim that the appellants were working in the work charge posts, as P.W. Mistries and they have been reverted because the posts against which they were working had not been sanctioned for any further period. They contend that the appellants had not acquired any right over the post of P.W. Mistry and that their reversion to their substantive post does not amount to any punishment for which any show-cause notice was required.
4. In all the four cases the appellants had examined themselves and had been cross-examined.
Whereas one Ghulam Hussain, a U.D.C. Of the respondents was examined by the respondents in all the four cases: It may be pointed out that the person who filed the reply statement in all the four cases had not been examined in any case. As these reply statements are not on oath, under the circumstances they cannot be considered as evidence to rebut the evidence of the appellants on oath.
5. It appears that in all the cases in the first instance the appellants were appointed as P.W. Mistry on the work charge basis for certain period mentioned therein. The question that requires consideration is whether after expiry of that period shown in the order, and after working for such a long period extending to five to eight years, the appellants had acquired a vested right in the post of P.W. Mistry. It may be pointed out that Standing Orders Ordinance, 1968 is not applicable to the cases of the appellants as even for those employees of the respondent, who are not civil servants, the respondents have admittedly their own Statutory Rules.
6. In original applications the objection was raised by the respondents, that the appellants were not workmen but that point was not pressed in appeals as the appellants are working on railway track as 'coolies' and Permanent Way Mistries and therefore would be workmen as defined in the Workmen's Compensation Act and would therefore be excluded from the definition of 'Civil Servant' as defined in the Civil Servants Act, 1973 and Services Tribunal Act, 1973.
7. In all the cases respondents had not produced any document to show that after the initial period of their appointment on work charge basis, they continued to work on work charge basis till their reversion. No orders were produced extending the period of such posts on work charge basis from time to time till the said appellants were reverted. There is only oral word of the respondents' witness Ghulam Hussain that they were working against work charge posts. It may also be pointed out that even the appellants have not produced any document to show that they were made permanent or were regularised. It is however argued by the learned counsel for the appellants, that failure of the respondents to issue such orders would not deprive the appellants of their rights and further that all the record being available with the respondents, non-production of the orders concerning the period of work charge posts, would raise presumption against them.
8. Admittedly certain decisions of the Government were published in the `Pakistan Railway Gazette'.
The first 'Gazette Notification' is dated January 18, 1975 under which the Government had decided: "that all staff, except work charge staff or those working in the temporary projects, with three years' service should be confirmed and the posts against which they were working should be made permanent as far as possible. All others who cannot be so confirmed should be given all the benefits/privileges of confirmed staff.
' Work Charge Staff and those working on temporary projects on completion of the works/projects would be given preference for absorption in regular service."
' This decision was again repeated in P.R. Gazette, dated 24th August, 1980. In the P.R. Gazette, dated March 1, 1982 it was decided: "that promotions made on ad hoc basis prior to 4th June, 1980, be regularised without any further delay."
' In the P.R. Gazette, dated 15th June, 1985 by Order No,38 it was decided: "Promotions of Railway Employees in the next higher grades are being made pending finalization of their cases by the Departmental Promotion Committee. Unwarranted delay in arranging the D.P.Cs lead to serious problems regarding fixation of pay of the employees in their prompted pay scales.
' It is once again emphasised that the Divisional Personnel Officers on the Division be directed to deal with cases involving the promotion of staff expeditiously on Top Priority basis to avoid unnecessary hardship to the employees."
9. Admittedly the appellants were promoted as Permanent Way Mistries on the various dates as pointed out above and worked as such till they were reverted on the dates which are also pointed out in para 3. Ante. The intention of the Government can be gathered from para. 2 of Railway Board's letter reproduced in the aforementioned P.R. Gazette, dated 24-8-1980. It may be reproduced as under:-- "The intention of the Government's decision referred to above is to confirm all staff who have 3 years' service by bringing the posts against which they are working on permanent footing and to give benefits/privileges of confirmation to those who cannot be confirmed for want of permanent posts but have 3 years' service, so that they may not suffer on account of their non-confirmation, but since no specific date has been indicated by the Railway Board from which this decision is to be implemented, the same has been enforced, with effect from 1st January 1975, i,e, the date on which it has been notified to all concerned, as per rules."
10. However exception has been made in the case of work charge staff and those working in temporary projects. Work charge staff has not been defined in any Railway Rules or manual or even in dictionary. The phrase work charge staff is generally used in conjunction with words 'and those working in the temporary projects'. The work charge staff in its ordinary parlance would signify, that staff which is temporarily appointed against the work of temporary nature. Mere designation as work charge staff would not deprive appellants of the benefits conferred by the decision of the Railway Board, which is further clarified by the intention of the Government as is evident from the aforementioned para. 2 unless it is shown, that the appellants had been posted and were working for all these years in some post in a work of temporary nature. Work charge staff is also temporary staff and would be covered under the policy of the Government, the intention of which was, to regularise all the workers, who worked for three years. This intention also appears to be clear from the letter, dated 10-7-1983 bearing Pakistan Railway No,220/20/Pt-I/P, with caption "Regularization of P.W. Mistries promoted prior to 4-6-1980". This letter has been produced as Annexure "D/1" in the case of Muhammad Siddique. Under this letter certain employees were ordered to supply the photo copies of educational qualification certificates for further disposal.
Amongst the names mentioned in this letter, are the names of appellants Muhammad Siddique, Allah Warayo and Muhammad Jameel. This letter leaves no doubt that in pursuance of the Government Policy even those P.W. Mistries who are alleged to be work charge Mistries were being considered for regularization after they had worked for more than three years.
11. There is no evidence on record to show that the appellants were working E all these years in the works, which were of a temporary nature lasting for the period of less than three years. In the absence of such evidence and in view of the admitted fact that they have put in service of 5/8 years as P.W. Mistries, without break, they are entitled to regularisation after completion of three years service under the aforementioned decision of the Government of Pakistan. In view of the above, I am of the opinion that the appellants would be deemed to be regularised as P.W. Mistries after they completed three years service and the posts against which they were working would also be deemed to be regularised. Inefficiency or failure of the concerned staff of Railway Administration in issuing the formal orders, would not deprive them of the rights conferred upon them under the decision of the Government. In this connection reference may also be made to the Ministry of Finance OM No,1(2)-N.G. Imp/71, dated 3-4-1972 on the subject of regularisation of employments of establishments paid from contingencies which is also reproduced as under:- "The undersigned is directed to invite attention to this Ministry's O.M. No,122-Imp.IV/65, dated the 31st May, 1965 and to say that consequent on the latest revision of scales of pay and allowances with effect from 1st March, 1972, the emoluments of the employees paid from contingencies should be regulated with reference to the Scheme of the National Scales of Pay and, Allowances and other Fringe Benefits sanctioned vide this Ministry's O.M. No,1(2)-N.G.-Imp/71, dated the 8th March, 1972."
12. It would be seen, that in this O.M. There is no distinction between the 1 r work charge staff and the other staff paid from the contingencies.
13. For all the aforesaid reasons, I set aside the order of the learned Labour Court and allow the appeals and hold that the appellants stand regularised as P.W. Mistries on completion of three years of service and their reversion without any charge sheet or show-cause notice was illegal and void. It is, therefore, ordered that the appellants be regularised as P.W. Mistries from the date they completed three years' service. They should be reinstated as such if they have been reverted and also be paid the consequential benefits. Orders to be implemented within two months.