DECISION All these fifteen appeals are directed against a common, order, dated 30-8-1989, passed by the learned Presiding Officer, Sindh Labour Court No, IV at Karachi, whereby the grievance petitions of the appellants were dismissed.
' As the points of facts and law involved in all these appeals are similar, I propose to dispose of all the appeals by this single decision.
2: I have heard Mr. Ali Amjad. 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. From the evidence recorded, it appears, that the appellants were appointed on temporary basis by the respondents, but, in spite of putting in service for several years, they were not treated as permanent workers and were not given the benefits and privileges admissible to the permanent workers. The appellants and other several workers, therefore, filed grievance Applications Nos, 162/85, 108/85, 165/85 and 144/85 before the learned Labour Court praying therein, that they should be treated as permanent workmen and they should be given such privileges admissible to the permanent workers. One of these applicants, namely, Syed Mazhar Hussain who was removed from service also claimed reinstatement. The learned Labour Court by common order, dated 7-2-1987 did not grant the claim of the workmen to be considered as permanent workers but held that they were entitled to be considered for the purpose of permanent job. Applicant Mazhar Hussain who was ordered to he reinstated is not party in the instant proceedings. The appeal against the order of Labour Court filed by the respondents in this Tribunal was dismissed by an order, dated 14-12- 1987. It appears that in pursuance of the order of the learned Labour Court some appellants were ordered to be allowed to resume/continue on duty on 7-2-1987 and some on 14-12-1987. The services of the appellants were again terminated by an order, dated 4-11-1987, which they claim was not served upon them. Therefore, after serving the grievance notices upon the respondents, the appellants filed greivance petitions before the learned Labour Court claiming reinstatement as permanent workmen and back benefits. The applicants were resisted by the respondents on the ground that the appellants were temporary workmen and therefore, their services were terminated when the work was completed.
4. The appellants were apparently not issued appointment orders as neither the appellants nor the respondents have produced any appointment order in the instant proceedings before the learned Labour Court. The only order produced is Annexure `R/2' which is dated 7-2-1987 in certain cases and 11-3-1987 in other cases. This stereotyped order is common in all the cases which reads as under:-- "This refers to the order, dated 7-2-1987 of the Hon'ble IVth Sindh Labour Court, Karachi, disposing of 43 applications including the one filed by you by this common order and your letter, dated Nil and joining dated 9-3-1987. You have worked as a casual/temporary worker on daily wage basis if and when required. You may continue to he employed to work as a casual/temporary worker on daily wage basis, if and when so required by the Corporation without any benefits of the permanent workers of the Corporation.
' Your case of permanency shall be considered alongwith others depending upon permanent vacancy by a Selection Committee by interviewing keeping in view merits, suitability, continuity/length of casual/temporary service, experience, medical fitness etc., mentioned in the said order and the rules of the Corporation.
Yours faithfully, for PAKISTAN STEEL (Sd.) O.K. BALOCH For Senior Manager (G.S.)"
5. It is a very vague order. It can hardly be considered as a fresh appointment order. It will at the most be considered an order continuing appointment of the appellants as temporary/casual workers on daily wages if and when required. No other appointment order or termination order of the appellants has been produced to show if there was any break in their service from the date of this letter to the date of termination letter which is dated 4-11-1987. The respondents have produced two memorandums. One memorandum is dated 18-5-1987 under which certain posts were sanctioned for 105 workers on daily wages for 89 days, w,e,f, 3-5-1987 to 30-7-1987. The other memorandum is dated 1-10-1987 which accords sanction for the engagement of 90 workers on daily wages. However, no appointment orders have been produced to show as to whether those appellants were appointed against the posts, created under the abovesaid memorandums.
6. I have already pointed that the appellants had initially filed grievance applications in 1985, wherein they did not claim for reinstatement, but, they claimed to be treated as permanent workmen. It would clearly show that the appellants were continuing as workmen much before they filed the grievance petitions in 1985. Their continuing in service was accepted by the learned Labour Court, who, though did not give them relief to be treated as permanent workmen, nevertheless held that they had acquired a right because of their long continuous appointment to be considered for the permanent jobs. In the opinion of the learned Labour Court which was upheld by this Tribunal, a workman did not automatically become permanent, unless he had appeared before the Selection Committee who after considering his conduct and the work, would hold him to be fit or unfit for permanent job. There is however, no evidence on record to show that at any time during the pendency of previous proceedings, the services of the appellants were terminated.
7. Mr. S.M. Yaqoob, the learned Representative for the respondents has argued that for the temporary and daily wage workers, no appointment orders are issued, but only tickets are issued to show the duration of their appointments and the nature of the appointments. It may be pointed that no such tickets have been produced by the respondents. Mr. Yaqoob claimed that the workers did not return the tickets. However, he could not satisfactorily reply to the question put by this Tribunal, as to why the appellants who did not return the tickets were appointed afresh. In fact I would not agree with this contention, that no appointment order is necessary in case of a temporary worker. The services of the appellants are admittedly governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as Ordinance). In this Ordinance, the workman is defined under section 2(i) and it is not disputed that the appellants are workmen. Standing Order 2-A lays down that "every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service." This Standing Order makes it mandatory for the employer to issue orders, in writing, at the time of appointment of workman showing terms and conditions of service which would include duration of service if he is temporarily appointed. Tickets are issued under Standing Order 2. Therefore, issuance of tickets under Standing Order 2 would not absolve the employer from issuance of orders, in writing, under Standing Order 2-A.
8. The classification of the 'workmen' is described in Standing Order 1. There are only 5 classes of workmen viz., permanent, probationers, Badlis, temporary, and apprentices. In the instant case, we are concerned with the definition of 'permanent workman' and the 'temporary workman' as the appellants claim to be permanent workmen, whereas the respondents claim that they were temporary workmen. A permanent workman is defined in Standing Order 1(b) as a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisficatorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment. This Standing Order does not talk of any Selection Committee before which the workman has to appear for being appointed or treated as permanent workman. No doubt, the employer has an option to determine whether the work of the workman is satisfactory or not, but this option he has to exercise within 3 months of probationary period and then to decide either to retain the workman or to remove him. If the employer retains the workman after the expiry of period of probation, the presumption would, unless otherwise proved, be that the workman has satisfactorily completed his probationary period.
9. A temporary workman has been defined in Standing Order 1(e) as a workman who has been engaged for work which is of an essentially temporary nature likely to be fmished within a period not exceeding nine months. The deciding factor in both the cases would be the nature of work. The question as to whether the work was of temporary or permanent nature would be within the knowledge of the employer who has to produce evidence to show the nature of work if it was of temporary nature. In absence of such specific and authentic evidence, if workman continues to work for long period exceeding 9 months, it will be presumed that the workman was working against the work of permanent nature. In the instant case as already pointed the appellants appear to have been working since before 1985 till they were removed from service by order, dated 4-11-1988. The fact that they were working for- more than 3 or 4 years would definitely raise a strong presumption that they were working against the work of permanent nature and that they had satisfactorily completed their probationary period.
10. Mr. S.M. Yaqoob contends, that the services of the appellants were not continuous but they were being appointed from time to time. As pointed above, no termination orders as required under Standing Order 12(3) have been produced in case of any appellant to show that during the period up to 411-1988, their services were terminated at any time. The Standing Order 12(3) makes it mandatory for the employer to issue termination order, in writing showing the reasons of termination which should be communicated to the workman. The word used in the Standing Order 12(3) is 'workman' and does not make distinction between any type of workman. Mr. S.M. Yaqoob had relied upon certain decisions of this Tribunal, reported in 1974 PLC 284 and 1979 PLC 207; wherein it was held that if the, workman was removed in terms of his appointment which showed the period of appointment, even if no separate order of termination was passed, there was no breach of any right. Similar view was taken by this Tribunal in the case reported in 1982 PLC 503.
However, these cases are distinguishable from the instant cases, as no order of appointment has been produced with regard to the appellants showing the specific period for which they were appointed. The two memorandums produced by the respondents are not appointment orders of the appellants, but only sanctions for creation of certain posts retrospectively. They cannot be considered as appointment orders of the appellants, so that their services could be terminated automatically after expiry of the period mentioned therein.
11. Mr. S.M. Yaqoob has further argued, that even if it is accepted that the appellants had worked for more than 9 months still it will not confer upon them the status of permanent workman. He has relied upon a case of Pakistan International Airlines v. Sindh Labour Court No, V and others reported in PLD 1980 SC 323. The facts of that case are distinguishable. In that case, the workman was employed by the contractor to work against the contract which lasted for more than 9 months.
Their Lordships have, however, held that the very contract was of limited duration, therefore, the very nature of work was temporary and even if the worker had worked for more than 9 months, it would not confer upon him the right of 'permanent workman'. Their Lordships have considered the import of words "likely to be" used in the definiton of `temporary workmen' and have held that the words were inserted because given the nature of human beings, 'work' expected to be finished within nine months might not be finished during that period, because of human error, miscalculation, negligence or any other cause. Their Lordships have also considered the import of words "the work likely to last for more than 9 months" used in the definition of 'permanent workman' and have held that the job of a permanent nature could be imagined as might not last nine months. Their Lordships have further held that even if the employer purported to have appointed the workman on a purely temporary basis, it cannot contract out of its obligations under the Ordinance. Section 3 of the Ordinance provides-- "Enforcement of Standing Orders.--In every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders."
12. Mr. S.M. Yaqoob, learned representative for the respondents have further submitted that the status of the appellants as temporary workmen had been determined by the learned Labour Court earlier and was confirmed by this Tribunal and, therefore, this question had attained the finality and could not be re-opened. I am afraid, I cannot agree with Mr. S.M. Yaqoob. The learned Labour Court and the Labour Appellate Tribunal decided the status of the appellants as stood in 1985 when they had filed the grievance petitions. If they had acquired any right subsequently, the order of the Labour Court or the Tribunal would not bar the acquisition of such right. Even otherwise the respondents did not call the appellants before the Selection Committee in terms of decision of the learned Labour Court to determine their suitability for permanent jobs. As a matter of fact, the witness of the respondents, namely, Syed Aminuddin had admitted in his cross-examination that there was no Selection Committee in their Organization. He has further admitted that the appellants were being paid on monthly basis.
13. As pointed above, the continuous work of the appellants since 1985 to 4-11-1988 without any legal evidence to show that there was any break in their service would bring them within the definition of permanent workmen as defined in Standing Order 1. By merely describing their jobs or appointments to be temporary, would not bring the appellants within the definition of temporary workmen. It may be pointed that there is no category under Standing Orders of daily wage workers or monthly wage workers. These terms only denote the mode of payment of wages to the workmen and not their status. The appellants had acquired the right to be treated as permanent workmen under the Ordinance. There being no Selection Committee and the employer not having exercised its discretion to decide whether the work of the appellants was satisfactory or not within the aforesaid period of probation, cannot, after a period of 4 years claim that the work of the appellants was not satisfactory. The termination order Exh. R-5 only shows that the services of the daily wage workers named therein were terminated with effect from 4-11-1987 on completion of temporary jobs. Mr. Syed Aminuddin, the witness of the respondents had admitted that the appellants were paid salaries on monthly basis and, therefore, they cannot be said to be daily wage workers. Further, have already held that the long duration of the appellants' working in the establishment of the respondents, without any legal evidence of the break in ' service, would bring them within the definition of permanent workman as defined in Standing Order 1. Therefore, their services cannot be terminated as temporary employees or daily wages workers. These termination orders are not in accordance with Standing Order 12(3) which requires that explicit reasons should be given for the removal. The removal of permanent workman as temporary employee cannot be considered as proper and reasonable compliance of spirit or requirement of Standing Order 12(3).
Therefore, such orders are not sustainable.
14. Mr. S.M. Yaqoob has further argued that the appellants having accepted their dues cannot be considered as aggrieved persons. It is admitted by Mr. Syed Aminuddin, the witness of the respondents that the appellants had received only their salaries and nothing more. Receiving the amount of salary would not deprive the appellants of their right, if any, to seek redress of their grievances under section 25-A of Industrial Relations Ordinance, 1969. In this context, I would agree with the judgment of Lahore High Court (D.B.) in the case of Climax Engineering Company Ltd., Gujranwala v. Shabib Ahmad and another reported in 1985 PLC 400, wherein their Lordships of the Division Bench of Lahore High Court have observed that "Employee accepting money for period during which he had served, could not be presumed to have accepted termination of his service as well thus debarring him from challenging same before a competent Court or Tribunal." Therefore, this argument of Mr. S.M. Yaqoob also has no force.
15. For the aforesaid reasons, I set aside the impugned orders of the learned Labour Court and allow the appeals of the appellants. I order the reinstatement of the appellants as 'permanent workmen' with the respondents. But, under the circumstances, I would award them fifty per cent (50%) back benefits. This decision is to be implemented within one month.