This judgment shall dispose of twenty-six appeals (Appeal No.JM-423 of 1992-Punjab to Appeal No.JM-435/1992-Punjab, Appeal NoJM-437 of 1992-Punjab to Appeal No.JM-448 of 1992-Punjab and Appeal No.JM-450 of 1992-Punjab) which involve identical questions of facts and law.
2. The appellants who are twenty-six in number, were the employees of the Gharibwal Cement Limited, District Jhelum. Their services were terminated on 23rd of June, 1983. On 3rd of August, 1983 they, after service of grievance notices, separately filed twenty-six grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969 assailing the termination of their services.
Their case was that they were in continuous service since 15th of July, 1982 and having attained the status of permanent workmen, the termination of their services on 23rd of June, 1983 orally was in violation of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. According to them, after the termination of their services, some other persons were employed by the respondent on the work which they were doing. Therefore, they prayed for their re-instatement with back benefits.
3. The respondent contested the grievance petitions. In the written statements it was alleged that the appellants were employed on purely temporary basis and their employment did not last for more than one month at any particular time. It was further alleged that the order of termination was duly communicated to the appellants. A preliminary objection was also taken that the appellants had not followed the mandatory procedure prescribed in section 25-A of the Industrial Relations Ordinance, 1969.
4. The appellants examined only themselves in support of their grievance petitions.
5. The respondent before, adducing evidence in rebuttal, filed applications on 5th of June, 1985 for the dismissal of the grievance petitions on the ground that the same were neither signed nor presented by the appellants themselves but were signed and presented by their counsel alone.
The appellants opposed these applications. The learned Labour Court vide its order, dated 24th of July, 1985 accepted the applications of the respondent and upholding the objection, dismissed the grievance petitions. Feeling aggrieved, the appellants filed appeals before this Tribunal. It was argued on behalf of the appellants that since they had appeared in the Labour Court personally on 14th of September, 1983. By which date limitation for filing the grievance petitions had not expired, the grievance petitions could not be dismissed even if they suffered from - the defect as pointed out by the respondent. My learned predecessor vide his judgment, dated 12th of October, 1985 accepted the appeals and setting aside the order of the Labour Court, remanded the grievance petitions for their decision afresh after affording the parties proper opportunity to produce evidence on the point whether the appellants had appeared in the Labour Court personally on 14th of September, 1983 and if so, what was its effect.
6. The respondent assailed the judgment of this Tribunal in the High Court by way of Writ Petition No.526 of 1985. Meanwhile a Full Bench of the Lahore High Court had held in Habibullah v. Sargroh Vegetable Ghee and General Mills etc. 1991 PLC 899 that a Labour Court being an outside forum, rather a Civil Court, a lawyer could, as a matter of right, appear and act on behalf of the worker before it. The High Court, therefore, vide its order, dated 22nd of October, 1991 set aside the judgment of this Tribunal and remanded the appeals to it for fresh decision in accordance with the above dictum:
7. Afterwards, my learned predecessor after hearing counsel for the parties, vide his judgment, dated 24th of November, 1991, accepted the appeals and setting aside the order of the Labour Court, remanded the grievance petitions. "for decision of the point if the grievance petition not bearing the signatures of the worker but only bearing the signatures of his counsel is maintainable or not and whether permission to sign the petition can be given. If the learned lower Court finds that without the signatures of the worker a petition is maintainable, or gives permission to the appellants to put their signatures on their respective grievance petitions at this stage, it will decide all the remaining controversies between the parties."
8. The appellants on 16th of April, 1992 applied to the learned Labour Court for permission to sign the grievance petitions. These applications were opposed by the respondent. The learned Labour Court, however, vide its order, dated 8th of June, 1992 accepted the applications of the appellants and allowed them to affix their signatures on their grievance petitions. The respondent challenged this order also in the High Court by way of writ petition No.528 of 1992. The High Court vide its order, dated 13th of June, 1992 declined to interfere and dismissed the writ petition in limine with the observation that the respondent might assail the interlocutory order in the appeals from the final decision.
9. On 29th of October, 1992 one MA. Khan Sabri, Deputy Manager (Admn.) of the respondent appeared in rebuttal as R.W.1 in the; grievance petition filed by Hafiz Muhammad Din with a prayer that his statement be read in the grievance petitions filed by the other appellants. This arrangement was not opposed by learned counsel for the appellants.
10. The learned Labour Court after appraising the evidence led by the parties, by its impugned decision, dated 31st of October, 1992 dismissed the grievance petition holding that the appellants were not permanent workmen and the order of termination of their services had been recorded on their employment cards which was a "substantial compliance" of the Standing Orders Ordinance, 1968.
11. Feeling aggrieved, the appellants have filed these twenty-six appeals.
12. I have heard learned counsel for the parties and perused the record. Learned counsel for the respondent has contended that since the grievance petitions were not signed by the appellants at the time of institution, they are liable to rejection. The counsel who had been duly engaged by the appellants signed the grievance petitions. The omission on the part of the appellants to sign their grievance petitions was only a technical and curable irregularity and does not furnish basis for their rejection. For this view I rely on Ismail and another v. Mst. Razia Begum and others 1981 SCM R 687 and Iqbal Muhammad v. Sindh Labour Appellate Tribunal and others 1992 PLC 549 which is a Division Bench authority of the Karachi High Court. This irregularity has already been got rectified by the learned Labour Court by allowing the appellants to sign their grievance petitions.
13. As regards merits, the first question which falls for determination is as to what was the nature of the employment of the appellants. According to the appellants, they were permanent workmen as they had continuously worked for more than nine months on a job which was of permanent nature.'
On the other hand, the plea of the respondent is that the appellants were engaged casually on daily wages to assist the permanent workmen in the execution of their jobs whenever necessity for the same arose. The appellants, as pointed out above, contended on examining only themselves in support of their case. Except their oral testimony, there is no evidence on record to substantiate that they worked continuously on jobs of permanent nature for more than nine months. No orders of appointment were brought on record as none was ever issued to them. This evidence obviously is inadequate to prove their continuous service for more than nine months on jobs of permanent nature. MA. Khan Sabri, Deputy Manager (Admn.) deposed as R.W.1 that the appellants were never given appointment letters and whenever there was additional work in the factory, they were engaged on daily wages and the duration of their employment never exceeded one month. He further testified that since the appellants were daily wagers, they were not allowed weekly holiday.
In order to establish that they were permanent workmen, the appellants were required to adduce evidence firstly, that they were engaged on works of permanent nature likely to last more than nine months and secondly, that they had completed a probationary period of three months, according to the definition of "permanent workman" given in Standing Order 1(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The evidence led by the appellants does not satisfy both these requirements: Therefore, it cannot be held that they were permanent workmen.
14. Learned counsel for the respondent has argued that the appellants were not even temporary workmen. He has asserted that the appellants did not fall in any of the categories of workmen classified in Standing Order 1 referred to above. This assertion runs counter to the written statements wherein it was admitted that the appellants were temporary employees. The witness of the respondent also stated that the appellants were engaged on daily wages and their employment never lasted more than a month. Therefore, for all intents and purposes the appellants were temporary workmen.
15. Now the question arises as to whether services of the appellants were terminated in accordance with law. According to Standing Order 12(3) which applies to all categories of workmen, 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 this case, no order in writing terminating services was ever given to the appellants. The plea of the respondent is that the order of termination was recorded on the time-punch cards of the appellants. Of course, there is a note on the punch cards that the services of the appellants were terminated on 23rd of June, 1983 on account of completion of the work. Nevertheless, this does not at all fulfil the requirement of the Standing Order. The punch cards always remained in the time office. Whenever the appellants entered the factory for work, they were given the punch cards and after recording time thereon, they were placed back in the time office. The recording of the note about which also there is no evidence as to when it was done, is not tantamount to communication of written order of termination to the worker concerned. In this view of the matter, the termination of the services of the appellants offended against the mandatory provisions of Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
16. In the result, these appeals are accepted, the impugned decision is set aside and the respondent is directed to re-instate the appellants in service within one month.
17. As regards back benefits, the same are declined on the grounds firstly, that the appellants were temporary workmen, secondly, that the termination from service has been set aside on a technical ground and thirdly that a period of more than ten years has elapsed since the grievance petition were filed and there is no indication that they have remained jobless meanwhile.