DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No,IV at Karachi, dated 16-1-1990, whereby he dismissed a joint grievance application filed by nine appellants.
2. I have heard Mr. Mirza Muhammad Kazim, learned Advocate for the appellants and Mr.S.M.
Yaqoob, learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. The case of the appellants, in brief, is that they were appointed on a permanent job in the Power Equipment Repair Shop Complex of the respondent in the years 1983 and 1984 on the dates mentioned in their grievance petitions. They were removed by oral orders on 28-9-1987 and therefore after serving grievance notice upon the respondents they filed grievance petition. The respondents admitted the initial appointment of the appellants on the dates as alleged by them, but avered that they were appointed on temporary basis from time to time and their services used to be terminated after expiry of period of temporary appointment of appellants. It is, averred that their last appointment was from 2-7-1987 to 28-8-1987 whereafter their services were terminated in terms of their appointment.
4. The main question that requires consideration is whether the appellants had acquired status of permanent workmen and whether their termination order was illegal.
5. It may be pointed out that there had been a previous round of litigation between the present appellants alongwith 12 other workers and the respondents. They had filed grievance applications in 1985 which were decided by learned Labour Court No,IV by a single order, dated 2-3-1986. The grounds taken in those applications were also more or less similar to the grounds taken in the present grievance application and the appeal. The learned Labour Court observed that 'the work in the steel mills was of permanent nature regardless of the fact that the workers were working on daily wages. However, the second requirement of 183 days or 3 months probationary period as appeared in the definition of workman had not been satisfactorily completed. The learned Labour Court therefore partially allowed the grievance petition to the extent that the appellants and other workmen should be given preference as far as possible to the appointment of permanent posts because they were the same persons who had been called every time for daily work, being trained on the particular specialised job. However, the Court left it to the discretion of the management to the number of permanent vacancies. It may also be pointed that in their grievance petitions the workmen including present appellants had not prayed for reinstatement, but only prayed that they may be treated permanent workmen implying thereby, that they were in service at the time of moving of the application. This order of learned Labour Court was considered by this Tribunal in Appeal No,KAR-85 of 1986 decided on 22-7-1987. This Appellate Tribunal agreed with the view of the learned Labour Court and dismissed the appeal.
6. In the present grievance applications the appellants have shown their dates of appointments and fur they claimed that they were appointed against permanent posts on daily wages. In their affidavit in evidence they are not clear as to whether they continuously worked since their initial appointment or there were intermittent breaks in their services and then they were appointed afresh. However, they claimed that they had put in more than 183 days service in the respondent establishment in last one year as such they were permanent workmen. Only one of the appellants Muhammad Afzal was tendered for cross-examination and it was decided by consent of the parties that his cross-examination would be deemed to be cross-examination of all the appellants.
He has admitted that his last employment in the respondent mill was w,e,f, 2-7-1987 to 28-9-1987.
He has further produced 'general notice' dated 20-9-1987 as Exh. A/6 whereby the appointment of 97 daily wage workers were terminated w,e,f, 28-9-1987 and further stated that he had received this general notice in reply to his grievance notice, after three months of the termination of his services. It is further admitted by this appellant, that the permanent workers in the respondent mill are paid their salary on monthly basis. He has further admitted that he was issued specimen gate pass Exh. A/1. Again stated that he was also issued another type of gate pass also but he has not produced the same. He has further admitted, that the service of daily wage workers terminates on the expiry of service period mentioned in the gate pass, but at the same time, after expiry of the period mentioned in the gate pass, they were called on duty. He has produced applications from appellants A/2 and A/3 which were given after the expiry of period mentioned in the gate pass.
Thus, from the evidence of the appellants it is clear that they were appointed from time to time on daily wages for which they were issued gate passes and their services stood terminated on the expiry of the period shown in the gate passes and they used to move fresh applications for fresh appointment and their last appointment was w,e,f, 2-7-1987 to 28-9-1987.
7. The witness of the respondent Munir Ahmed had admitted in the cross-examination that the appellants were working with the respondents since the period mentioned in the application except the break of few days in between. He has also admitted that no individual order of termination was issued or served upon on any one of the appellants nor any appointment letter was issued to any of the appellants. He had further admitted that after termination of services of the appellants four other persons have been appointed on places where some of the appellants were working. He denied that appellants were working on permanent jobs or that they had appointed some other persons against some of these vacancies.
8. The evidence on record indicates that since 1983 and 1984 the appellants are being appointed on daily wages in the mill for period of 89 days each time and after break ()flew days after expiry of said period they are again reappointed. It is argued by Mr. Mirza Muhammad Kazim, that continuous appointment of the appellants for such a long period, would show that they were being appointed against work of permanent nature as had been held by the learned Labour Court in the previous litigation by its order, dated 2-3-1986. He, however, contended that the respondent had deliberately appointed the appellants for 89 days at a time in order to circumvent the law which requires the respondents to consider the appointment of appellants as permanent, if they had put in more than three month's service. He further argued that the fact that the appellants had been re-appointed time and again would indicate that their services were found satisfactory and they would, thus, be deemed to have completed their probationary period satisfactorily. It is submitted by Mr. Mirza Muhammad Kazim that the respondents should not be allowed to adopt a procedure of such periodical appointments in order to defeat the provision of law or circumvent the law.
9. Mr. S.M. Yaqoob, on the other hand, contends that the appointments of the appellants were purely temporary on daily wage basis and as admitted by them their services were terminated before the expiry of three months service after the expiry of the period mentioned in their gate passes and therefore they could not acquire the status of permanent workmen. It is further argued by him that the respondent had already got in service thousands of permanent workmen, who were surplus and therefore they did not require any more permanent staff but required 'casual staff' of daily wage workers to meet with exigencies of the work.
10. Mr. Mirza Muhammad Kazim has relied upon an earlier decision of this Tribunal in Appeals Nos, 386 to 402 of 1989 decided by single decision, dated 18-10-1990. These appellants were also workmen of the present respondents and also entered into litigation with the respondents in 1985 seeking relief of being considered as permanent but the learned Labour Court did not grant the claim of workmen to be considered as permanent workmen but held they were entitled to be considered for the purpose of permanent job. However in the cases of these workers evidence showed that since 1985 to 4-11-1988 they worked continuously and therefore this Tribunal held that they were permanent workmen and ordered their reinstatement vide order, dated 18-10-1990. In the instant case, however, there is no evidence to show as to since when the appellants are continuously working, but only admission of one of the appellants, as pointed above, to the effect that their last appointment was from 2-7-1987. A 'permanent workman' is defined under clause (b) of Standing Order 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (hereinafter referred to as the 'Ordinance') as under:- "(b) A 'permanent workman' is a workman who has been engaged in work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lockout, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months."
' A 'temporary workman' is defined under clause (e) of Standing Order 1 as under:- "(e) A 'temporary workman' is 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."
A bare reading of these definitions would show that the requirement for being considered as permanent workman is (1) that workman is appointed against D work of permanent nature likely to last more than nine months and (2) he has satisfactorily completed a probationary period of three months.
11. As already held by the learned Labour Court in the earlier litigation the work on which the appellants were working, was of permanent nature. I am also in agreement with this finding in view of the fact, that appellants have been intermittently appointed against the same work since last five or six years with break of few days in each appointment. The claim of the respondents that they have got thousands of permanent workers in surplus stands belied by the fact that in spite of the so-called surplus permanent staff, they continued to engage workers on daily wage basis.
Either the respondents has no surplus staff or there is such mismanagement in the respondent establishment that surplus staff is kept without work and work is being taken from daily wage workers. The mere fact that appellants were daily wage workers would not disentitle them from acquiring rights as permanent workmen, as held by this Tribunal in the case of Qamaruddin v. Rice Export Corporation of Pakistan 1989 PLC 1009. However, still the appellants had to show that they had worked continuously for more than three months so as to raise presumption that they had satisfactorily completed the probationary period. In the case of Punjab Agricultural Development and Supplies Corporation and another v. Punjab Labour Court No,1, Lahore and another 1980 PLC 457 a learned Single Judge of Lahore High Court held the workman to be permanent, where continuity in his employment from 11-5-1973 to 5-12-1973 had not been interrupted. Even from this decision it will be clear that continuous appointment for more than three months was necessary before a person could be considered to have acquired status of permanent workman.
12. In the case of Pakistan International Airlines v. Sindh Labour Court No, 5 and others PLD 1980 Supreme Court 323 the PIA had given contract of construction of school to one contractor and the terms of contract stipulated that the school had to be constructed in fifteen working months from the commencement of the contract period. The appellant in that case also engaged some ten or twelve workmen to supervise the work of contract. The services of these employees were terminated by the PIA on 26-7-1974 after they had put in nearly fifteen months service on the ground that the project work had been suspended indefinitely and their services were no longer required. In that case it was pleaded that appointment letters of these workers showed that they were appointed on temporary basis but their Lordships held that though appointment letters showed the workers were appointed on purely temporary basis, the employer could not, in view of section 3 of the Ordinance, contract out of his obligation under the said Ordinance. Therefore, their Lordships considered the question of status of workmen in the light of the definition of workman as contained in Standing Order 1. Their Lordships came to the opinion that as the workers had been appointed on a work of limited duration, therefore, they could not be said to be employed on permanent basis on a work of permanent nature and as such they were not permanent workmen.
13. No doubt the appellants have not been able to conclusively prove that at the time of their termination of services they had worked for more than three months, but as held above, they had been appointed against work of permanent nature, therefore, they cannot be held to have been appointed as temporary workers. The definition of temporary workers under Standing Order 1(e) would show that only those workers were temporary who had been appointed on work of temporary nature. The appointment of these appellants therefore would be deemed to be on probation as in view of the decision of their Lordships in the case of PIA, the employer could not contract out of the provisions of the Ordinance.
14. The employer has a right to terminate the services of probationer if he finds his work to be unsatisfactory during the period of probation. In the aforesaid decision of PIA their Lordships have discussed provisions of Standing Order 12(3) and have held that the provisions of Standing Order 12(3) are applicable to all workmen whatsoever. Thus same will be applicable to probationers as well as to the temporary workmen. In the case of Pak Cement Company Limited, Iskandarabad v.
Punjab Labour Appellate Tribunal and another 1990 PLC 233 the learned Single Judge of Lahore High Court held the probationer being one of the category of the workmen within the purview of Standing Order 12(3), his services cannot be terminated by employer without an order in writing explicitly stating therein the reasons for such termination. It may be helpful to reproduce Standing Order 12(3) as under:- Q(3) The services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
15. Word "explicit" used in the said Order is defined in the Black's Law Dictionary to mean 'that which is not obscure or ambiguous, having no disguised meaning or reservation i,e, clear in understanding, speaking out all that is meant, definite and unreserved in expression, outspoken'.
Even if it is held that 'general notice' Exh. A/6 was a termination order in writing, still it cannot be said to be in accordance with the Standing Order 12(3). The reason shown therein for the termination of services of the appellants is that they were temporary and their term of temporary appointment had expired. I have already held appointment of appellants was on probation and this reason therefore cannot be considered as an explicit reason for terminating their services. This order of termination of services therefore is not tenable and has to be set aside.
16. Mr. S.M. Yaqoob has also relied upon the decision of this Tribunal in the case of Amin Fabrics Ltd. v. Sindh Labour Court No, VI, Hyderabad 1979 PLC 207 where in this Tribunal held 'worker appointed temporarily for specific period cannot claim status of being permanent after three months.' This decision is not applicable to the present case, as I have already held appointment of appellants was not temporary because they were appointed against the work of permanent nature.
17. In view of the above discussions I allow the appeal, set aside the impugned order of the learned Labour Court as well as order of termination of services of the appellants and direct their reinstatement in service with hail back benefits.