DECISION These three appeals against a common order from the Labour Court No.III Karachi in two applications under section 25-A, I.R.O. Filed by the same petitioner have arisen in the following circumstances:-- The petitioner was appointed by the respondent company as a helper on 5-5-1991 on temporary basis. The appointment letter reads as under:-- "We offer you a purely temporary appointment as unskilled Labour on a temporary basis for a period not exceeding nine months.
Your temporary appointment will be effective from 5-5-1991 and you will get Rs.40 per day consolidated.
Your temporary employment is likely to be terminated on the completion of temporary assignment or on the expiry of period your temporary employment whichever may be earlier.
(Sd.) for Industrial Chemicals (Pvt.) Ltd."
2. After he had put in 3 months' work he started requesting the respondent to make him permanent, and as no heed was paid to his applications, he sent a grievance notice on 28-10-1991.
Not hearing from the respondents he filed the petition before the Labour Court. It is alleged that on the 14th of November, 1991 while on duty he was sent for by the respondents in their office and was threatened with dire consequences if he did not withdraw the grievance notice. Incidentally he had filed the petition the very day. As the petitioner did not agree to the suggestion, his services were verbally terminated forthwith. He had, therefore, sent another grievance notice and filed the petition praying for re-instatement.
3. The respondent in both the petitions maintained that as the petitioner was temporary, the petitions filed by him were liable to be dismissed. In the earlier petition it was said that the same had become infructuous as he had filed the petition against his removal also, while in the latter they had the following to say: "Since the applicant has already invoked the jurisdiction of this Honourable Court under section 25- A of the I.R.O. He cannot file another application almost on the same ground hence the principle of res judicata shall apply in the instant case."
4. The petitioner was his own witness and M. Zaheer Alam a Director, appeared on behalf of the respondents.
5. The Labour Court found that the petitioner having completed his probationary period had become permanent and also that the removal was illegal. It, therefore, allowed both the petitions.
However, no back benefits were awarded as he had not spoken anywhere that he was jobless.
6. The petitioner has preferred an appeal for the denial of the same and the respondent has come with two separate appeals against the acceptance of the two petitions filed by the petitioner.
7. Admittedly the petitioner had remained working with the respondents for over six months when he lost the job without a word in writing. It was contended on behalf of the respondent that the petitioner was a temporary hand and had been employed for a period not extending beyond nine months. Once he became surplus for the requirement of the respondent his services could be terminated any time verbally. That is the only point in issue here.
8. The respondents are manufacturing chemical products and Zahir Alam has spoken in clear terms that the "factory remains in operation round the year". The word specific assignment has been repeated all along. It is to be found in the letter of appointment in the order of termination and also in the affidavit-in-evidence of Zaheer Alam. However, we have not been taken into confidence at all as to what this "completion of temporary assignment" was. There is not the remotest indication of any special order, controvert or contingency work in which connection extra hands, were needed. It was neither any specific assignment as for example the construction of a building, the completion of a project, the installation of a factory or the like, where as soon as the work is completed the workman become absolutely surplus. The working was just normal, wherein the petitioner was working as a helper, which I am told was taking some material from one place to another inside the factory. That will take me to the definition of a temporary workers. He is one:-- "who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months."
9.The definition of the permanent workman is as follows:-- (b)"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, lock--out, 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 eighty-three days during any period of twelve consecutive months.)"
10. It is clearly borne out that there was no assignment of any kind which was likely to be completed within a period of nine months or which for any unforeseen reason could extend even beyond. The petitioner was one of the workers with the respondent and was given the position of a temporary hand as thereby the burdens of the respondent could be reduced. It is nothing but playing with the words with a design to exploit a worker. This cannot be allowed to be used as a talisman in this sordid game. In the circumstances the learned Presiding Officer was perfectly justified in holding that the petitioner was a permanent hand, and if he was a permanent workman as he is, his services could not be terminated without giving an explicit reason in writing. That was not done.
The petitions under the circumstances were properly allowed and I will affirm the same.
11. The learned Presiding Officer, however, refused to award the back benefits as according to him no oral assertion had been made by the petitioner that he was not gainfully employed during the period of his severance from the service. I am afraid that seems to be the result of oversight, because he had expressly mentioned in his affidavit that he was jobless and "is being facing hardship and starvation alongwith his family members".
In the result I will allow the Appeal No.KAR-456 of 1992 filed by the petitioner and dismiss the two Appeals Nos.KAR-457 of 1992 and KAR-458 of 1992 filed by the respondent Company.