SHAFIUR RAHMAN, J.---Leave to appeal was granted to the Province of Punjab and its functionaries to examine whether the work charge establishment of the Government could be declared to be permanent employees on the strength of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and whether certain instructions of the Government itself were not otherwise available for the benefit of the respondents/employees.
2. The respondents/employees were in the employment of the appellants since 1972 onwards. They were on work charge establishment. They approached the Labour Court under section 25-A of the Industrial Relations Ordinance claiming that they be declared as permanent employees and entitled to all the benefits of all the permanent employees including seniority and promotion in accordance with seniority. This claim of the respondents/employees was challenged and contested. The Labour Court proceeded on the assumption that Standing Orders Ordinance was applicable and held that under it there was no category of work charge employees. It was either of temporary employees or of permanent employees and as the respondents had satisfied the conditions under the Standing Orders Ordinance for becoming permanent employees, they were to be treated as permanent employees. It granted them the necessary relief and also directed the Government that they should be promoted in order of their seniority. The matter was taken to the Labour Appellate Tribunal but without success. A Constitution Petition was also filed and the High Court upheld the judgment by observing as hereunder:- "It is on the record that the respondents are on the roll of department for the last several years.
They are working on the water supply scheme. Such a work is of permanent nature. Under para 1 of the Standing Orders embodied in the Schedule to the West Pakistan (Standing Orders) Ordinance 1968 a permanent workman is defined as a workman 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. The respondents undoubtedly satisfy requirements of this definition and thus qualify to be treated as permanent workmen. The successive creation of vacancies by the department for a term of three months each, extending over a period of several years does not militate against the aforesaid definition of the term "permanent workman". In any case the provisions of the Standing Orders Ordinance shall override the Rules embodied in the Public Works Code on which the learned Advocate General heavily relies.
' Further even rule 1.109 indicates that work charge employees are entitled to leave on Friday (previously Sunday) and gazetted holidays, Travelling Allowance and in some cases even casual leave is admissible to them. These provisions are in line with some of the privileges of the permanent workmen under Labour Laws. In any case Rule 1.109 being in conflict with the Standing Orders Ordinance shall have to give away to it. The view taken by the learned Labour Appellate Tribunal is not open to any exception. This writ petition is, therefore, dismissed in limine."
3. The very first proviso to section 1 of the West Pakistan Ordinance No, VI of 1968 known as West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provides that "nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein". Article 240 of the Constitution of 1973 provides that the "appointments to and the conditions of service of persons in the service of Pakistan shall be determined in the case of the service of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly". Article 241 provides "until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government". The Civil Servants Act does not cover within its ambit certain categories of workmen. However, there exists statutory rules on the subject in the form of "The West Pakistan Buildings & Roads, Department Code". The Preface to the First Edition mentions the following statutory authority for its existence and enforcement:- "The provisions of this Code in respect of financial and other powers define the limits of power of authorities subordinate to the West Pakistan Government in Irrigation, Communication and Works Department. Fundamental Rules, Civil Services Rules of ex-Punjab, Sindh, Frontier, Bahawalpur, Khairpur, Balochistan States Union, Departmental Finances Rules, Volume III and rules in the Audit Code, the Account Code of the Government relating to classes of transactions which occur in the Buildings and Roads Department as well as in other Departments of Government are binding on the Buildings and Roads Department except in so far as they may be over ridden by express provisions in this Code or in the Account Code.
(2) The rules in this Code also apply to Central Works (including Posts and Telegraphs) carried out by the West Pakistan Government as Agents to the Government of Pakistan.
(3) This Code is issued by the Chief Engineer, West Pakistan Buildings and Roads Department. It has been approved by the Finance Department and Irrigation, Communication and Works Department of West Pakistan as well as by Director Audit and Accounts (Works), West Pakistan. The administrative and executive instructions contained herein are practically the same as given in the Public Works Department Code, 2nd Edition, 3 reprint, Public Works Department Code of North-West Frontier Province (Ist edition 1942) and Bombay Public Works Department Departmental Manual (1st edition) reprinted under the orders of Sindh Government in 1944, and it also included corrections and amendments necessitated as a result of constitutional changes brought out by the unification of the Provinces.
(4) This Code is self-contained inasmu ch as the references to other books have been avoided by reproducing the text required. Some of the new Annexures and Appendices have also been added with a view to achieving this object."
4. Rules 1.107, 1.108, 1.109 of the Buildings & Roads Department Code deal with the working conditions of work charge establishment in extenso. In view of such statutory rules being in existence and applicable to the respondents, the application, invocation and reference to the provisions of the Standing Orders Ordinance was out of place and misdirected. The work charge establishment cannot be declared permanent under the rules applicable to them, nor can they be granted all the benefits available to permanent employees including seniority, promotion and service being treated as pensionable etc.
5. When leave to appeal was granted the Government had been asked to put in its policy with regard to absorption of work charge establishment. A copy of one such circular has been placed on record wherein employees not exceeding 50% of the work charge establishment were to be so absorbed starting with those who had rendered the longest service on work charge establishment.
We find from the narration in the Constitution Petition that the respondents do not have very long service prior to their invocation of the jurisdiction of the Labour Court. In such circumstances they have to seek absorption on their own turn and in terms offered by the Government and not through Constitutional jurisdiction.
6. In the circumstances, the appeal is allowed and appropriate writ is directed to issue quashing the decision of the Labour Court and the Labour Appellate Tribunal. The impugned order of the High Court is set aside. No order is made as to costs.