DECISION ' This is an appeal against the order, dated 24-5-1990, passed by the learned Presiding Officer, Sindh Labour Court No, IV at Karachi, whereby the grievance petition of the appellant was dismissed.
2. I have heard Mr. Ibne Ayub, the learned Representative for the appellant and Mr. S.M. Yaqoob, Representative for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that admittedly appellant was working as Coolie/workman with the respondents when his services were terminated by an order, dated 13-5-1989. The appellant claims to have been appointed as a Badli worker from 5-2-1989 in place of Mateen-ud-Din who had proceeded on leave and that he was stopped from resuming duty from 12-5-1989 and that on 1-8-1989, he was verbally told that his services were terminated. He thereafter served grievance notice upon the respondents and then filed the grievance petition before the learned Labour Court.
The respondents resisted this application claiming that the appellant was not Badli worker but was a temporary workman and his services were terminated on 13-5-1989 which letter he refused to accept therefore, the same was sent to him by Registered Post vide, covering letter, dated 16-8- 1989.
4. The only question that requires consideration is whether the appellant was a temporary workman or a Badli workman and whether he had acquired the right of a permanent workman.
5. Admittedly Mateenuddin in whose place the appellant was alleged to have been appointed as a Badli workman was a Chargeman whereas the appellant was a Coolie and his job was to lift spoiled material and keep it in the back yard. The respondents'have produced an office order, Annexure '1', dated 4-12-1988, which shows that Mateenuddin Chargeman, Noop Mill had proceeded on long leave from 3-12-1988, consequently Abdul Mailk, Fitter had been appointed as Acting Chargeman; while M. Bashir, Helper-Fitter would work as Acting Fitter; and Liaquat Shah Coolie was appointed as a Helper Fitter. The respondents have also produced individual orders of these consequential changes. The appellant under the circumstances cannot be considered to have been appointed as Badli worker in place of Mateenuddin. At the most he could claim to have been appointed in place of Liaquat Shah, Coolie but again Liaquat Shah was appointed as Helper Fitter on 4-12-1988, whereas the appellant was appointed as a Coolie on 5-2-1989 viz., after about 2 months of the promotion of Liaquat Shah. There is no evidence to show nor does appellant claim to have been appointed as Badli worker in place of Liaquat Shah. He admits that he was only issued Time Card with Red Cornor which Card is issued to temporary employees. The Card issued to the appellant was produced by the respondents. Admittedly the word 'temporary' was scored off in that Card and the appellant was shown as a Badli worker, which according to the respondents was clerical error. The respondents had also produced a sanction order which is Annexure `R-2' which shows that in consequence of the aforesaid appointment made vide office order `R-1', a sanction was given for one temporary/Badli Coolie/Khalasi in Noop Mill for about 3 months. The respondents have also produced Annexure R-3 which shows that one M. Sharif, a Coolie in Healing Section, who had become surplus was transferred to Noop Mill in place of Liaquat Shah. The appointment order of M. Sharif has been produced by the respondents as annexure `R-7' which is dated 30-1-1989. The documents clearly show that vacancy caused by the promotion of Liaquat Shah was filled by the appointment of Muhammad Sharif on 30-1-1989, whereas the appellant was appointed in a temporary vacancy for about 3 months by order, dated 22-1-1989 on 5-2-1989.
6. In this context, it will be pertinent to reproduce the definition of `permanent workman' as defined is Standing Order 1(b) which reads as under:- "A permanent workman' is 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 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."
' This definition no doubt includes Badli worker who works for 3 months but, in my opinion the condition that a permanent worker had to successfully complete the probationary period of 3 months, would be applicable even in the case of a Badli worker. The appellant in his cross- examination had admitted, that he had not been medically checked up for the purpose of appointment nor was he issued any letter of confirmation as Annexure 'E'. The mere fact that the appellant had worked for more than 3 months would not automatically confer upon him the right of a permanent workman irrespective of length of employment. Mr. S.M. Yaqoob, the learned Representative for the respondents has relied upon a case of Muhammad Yaqoob V. The Punjab Labour Court No, I and 5 others, reported in 1990 SCM R 1539; wherein it has been held that "the length of employment by itself having not been made ground or test for determining nature of work where work of employee was not of a permanent nature, however long may be his employment, he could not be taken to be a permanent workman."
7. The order of termination of service Annexure 'I' to the reply statement, dated 13-5-1989 shows that the services of the appellant were no longer required and as such he was relieved from service with effect from 13-5-1989 after completion of the temporary job on which he was appointed. The order clearly shows that the temporary job in which the appellant was appointed had been completed. The appellant in his cross-examination had stated that the job still existed. Neither he alleges nor it was suggested by the appellant to the witness of the respondents that anybody else had been appointed in place of the appellant.
8. To sum up the evidence as discussed above, it will clear that the appellant was appointed on 5- 2-1989 in a temporary/Badli vacancy created under sanction, dated 22-1-1989, whereas the vacancy caused by the promotion of Liaquat Shah was filled in on 30-1-1989 by the appointment of a surplus worker, Muhammad Sharif. The subsequent appointment of the appellant on 5-2-1989 cannot be considered as appointment as Badli worker due to proceeding on leave by Mateen-ud- din or due to the promotion of Liaquat Shah as a consequential change. The mere fact that in the Card issued to him, the word 'temporary' had been scored off and the word `Badli' was not scored off would not convert him into a Badli workman. The circumstances support the averment of the witness of the respondents that word 'temporary' was scored off due to clerical mistake. The appellant was not appointed in a permanent vacancy. Admittedly he had not filled in the appointment application in the regular form of the company of which specimen Form has been produced by the respondent-company; nor he was medically examined for regular appointment.
Mr. Ibne Ayub, the learned Representative has relied upon the case of Mumtaz Ali v. Habib Bank Ltd., Faisalabad and another, reported in 1980 PLC 1115; where the Punjab Labour Appellate Tribunal has held that "workman working against permanent post as Badli worker for more than 3 months cannot said to be temporary employee." Obviously the case is distinguishable. 1 would, therefore, entirely agree with the learned Labour Court that the appellant was a temporary workman whose services had been terminated by written order, dated 13-5-1989. Even a Badli worker has to be appointed on a permanent post before he could claim the relief to be treated as permanent worker.
9. The order of termination as pointed above is dated 13-5-1989. Admittedly, the appellant was not allowed to work after 12-5-1989. The respondents claim, that the appellant did not accept the order of termination, therefore, they sent the order through registered post. The postal receipt and A/D slip had been produced as Exhs. R-2 and R-3. Which show that vide covering letter, dated 16-8- 1989, the termination order was sent on 16-8-1989 and A/D receipt was returned back on 17-8-1989, therefore, the learned Labour Court had assumed that this letter was served upon the appellant on 16-8-1989. The learned Labour Court relying upon the decision of this Tribunal in Appeal No, KAR- 336/1989, decided on 6-3-1990; and also upon the Decision of the Hon'ble Supreme Court, reported in 1981 SCMR 651; allowed dues to the appellant till 16-8-1989, which is the date of service of termination order.
10. Considering all the above facts and law, I find no merit in this appeal which is accordingly dismissed.