' NASIR-UL-MULK, J.---This judgment shall dispose of 13 Writ Petitions Nos.1187 to 1199 of 1994 filed by the General Manager, Pakistan Telecommunication, Northern Zone, Peshawar against the judgments dated 20-7-1994 of the Chairman, Labour Appellate Tribunal, N.-W.F.P., Peshawar.
2. The relevant facts leading to the filing of these writ petitions are that 13 persons, hereinafter called respondent-employees each of them has been arraigned as respondent No,3 in each writ petition, were appointed in the Pakistan Telegraph and Telephone Department, Peshawar Zone on different posts of Wireman, Technician Mastlaskar on various dates, on purely temporary basis in grades varying from Grade No,1 to Grade No,6. Their services were terminated on different dates after having served, in the department for periods varying from one year to 3 years. Each of the respondent-employees filed petition before the Labour Court, Peshawar under section 25-A of the Industrial Relations Ordinance, 1969 praying for reinstatement. On the strength of the evidence produced by the parties the Presiding Officer of the Labour Court dismissed the petitions through separate judgments delivered on different dates mainly on the ground that the respondent- employees appointment was a stop gap arrangement and that they were not trained Technicians as they had not undertaken the training examination. Appeals were filed by the respondent- employees before the Labour Appellate Tribunal, N.-W.F.P., Peshawar which allowed the appeals, set aside the judgments and orders of the Labour Court and ordered reinstatement of the respondents, which have now been challenged in these writ petitions.
3. The main grounds taken in the writ petitions as well as urged by the learned counsel for the petitioner at the time of the hearing are; firstly, that the respondent-employees are civil servants and therefore the Labour Court lacked jurisdiction to entertain the petitions under section 25-A of the Industrial Relations Ordinance, and secondly, and in the alternative, that the respondent- employees employment were temporary and their services could be terminated at will by the employer.
4. To substantiate the first contention, the learned counsel for the petitioner placed reliance upon an unreported judgment of the august Supreme Court of Pakistan delivered in C.P No,334/93 on 10- 11-1993 where on a petition by the Federation of Pakistan against an employee of the Telegraph and Telephone Department, who was given relief by the Federal Service Tribunal, it was held that the employees of the Department continued to be civil servants even after the transfer of their services to the Pakistan Telecommunication Corporation established under Act XVIII of 1991. For the second limb of his argument, the learned counsel referred to the letters of appointment of the respondent-employees which specifically provided that their services were purely on temporary basis and which were liable to be terminated at any time without assigning any reason or prior notice. In this context it was submitted that the services of the respondents not being permanent were liable to be terminated in accordance with the terms of their appointment.
5. Mr. Rehm Badshah Khattak, Advocate, representing some of the respondent-employees had raised a preliminary objection, that the question of jurisdiction cannot be raised in the constitutional petitions as the same was not taken up before the Labour Court nor before the Labour Appellate Court. To substantiate this point, our attention was drawn to the written statement filed by the petitioners before the Labour Appellate Court as well as to the judgments of the Labour Appellate Tribunal wherein it was stated; "the learned counsel for both the sides conceded at the Bar that the law applicable to the case would be the Labour Law, that is, Standing Orders Ordinance and Industrial Relations Ordinance as the appellant is neither a Government servant nor he was performing any managerial or executive duty".
6 Mr. Abdul Waheed Khan, Advocate counsel for some of the respondent-employees took us to the various provisions of the Labour Laws as well as the Civil Servants Act, 1973 to show that the respondents were workmen under the Labour Laws and not civil servants and thus could only approach the Labour Court for redress of their grievance. Reference was made to section 2(1)(b)
(iii) of the Civil Servants Act, 1973, section 2(1)(N) of the Workmen's Compensation Act, 1923 and Items Nos. 9 and 13 of Schedule II to the Act and clauses (bb) and (f) of section 2 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the schedule to the Standing Orders.
7 The undisputed facts are that the respondent-employees were appointed on temporary basis but on permanent posts and served the department for period ranging from one year to three years before their services were terminated. It is also admitted that the grades in which they were employed varied from Grade No,1 to Grade No,
6. The first question that requires attention is the jurisdiction of the Labour Court to entertain the petitions under the Industrial Relations Ordinance, which depends upon the status of the respondent-employees; as to whether they are civil servants under the Civil Servants Act, 1973 or workmen under the Labour Laws. Section 2(1)(b) of the Civil Servants Act, 1973, while defining a civil servant excludes from its definition, under its sub-clause a person who is "worker" or "workman" as defined in the Factories Act 1934 (XXV of 1934) or Workmen's Compensation Act, 1923 (VIII of 1923). Thus, to take the respondent-employees out of the ambit of definition of civil servants it is to be seen if they can be termed as workmen as defined in the Acts referred to in section 2(1)(b)(3) of the Civil Servants Act. The definition of workman as given in section 2(1)(N) of the Workmen's Compensation Act, 1923 includes a person who is employed on monthly wages not exceeding Rs,3,000 in any such capacity as is specified in Schedule H. Item No,IX of Schedule H brings persons employed in setting up repairing, maintaining or taking down any telegraph or telephone line or cable or post or standing for the same within the definition of workman. Item No,XIII further extends the definition to persons, inter alia, employed in any occupation ordinarily involving outdoor work in the Post and Telegraph Department. The learned' counsel for the petitioner was unable to controvert the fact that the nature of works done by the respondent-employees would fall within the activities mentioned in Item No,IX of Schedule II above for the same were exhaustive in that it covers all kinds of works of setting up, repairing, maintaining and taking out of any telephone line or post etc. Furthermore, the nature of the respondent- employees work required them to work outdoor which bring them within the ambit of Item No,XIII.
The learned counsel for the petitioner did not dispute that the wages-of the respondent- employees were below the limit of Rs,3,000. It follows that the respondent-employees were workmen within the meaning prescribed by the Workmen's Compensation Act, 1923. Answer to the objection of the learned counsel for the petitioner that no protection can be given to the employment of the respondent-employees on the ground of they being temporary is provided by the Industrial and Commercial Employees (Standing Order) Ordinance, 1968. Section 2(f) whereof defines "industrial establishment", which under clause (v) includes construction industry, which under section 1(bb) includes telegraphic or telephonic installation. The Standing Order defines workmen under section 2(i) as any person employed in any industrial or commercial establishment to do any skill or unskilled manual or clerical work for hire or reward. The workmen are further classified in the schedule to the Standing Orders and permanent workman has been defined as one who "has been engaged on work of permanent nature likely to last more than 9 months " Section 3 of the Standing Orders provides that the condition of employment of workman and other incidental matters shall be regulated in accordance with the Standing Orders. The binding effect of this section has been confirmed by the august Supreme Court of Pakistan in Pakistan International Airlines v. Sindh Labour Court and others (PLD 1980 SC 323) where, while interpreting letters of appointment that termed the employment of an employee as purely temporary, it was held that employer purporting to appoint workman purely on temporary basis cannot contract out of his obligations under the Ordinance. The respondent-employees were appointed to permanent posts and the tenure of their employment not only actually lasted for, but even at the time of their appointment were likely to extend to periods of more than 9 months. Thus, in view of the judgment of the Supreme Court aforestated, irrespective of terming their employment as temporary in the letters of appointment, the respondent-employees are to be regarded as permanent workmen within the meaning of Standing Order (1)(b) of the Schedule to the (Standing Orders) Ordinance, 1968.
8. The grievance petition was brought to the Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, section 1(3) of which enumerates the establishment to which the Ordinance do not apply. Section 1(3)(b) provides that it (the Ordinance) shall not apply to any person employed in the administration of the State other than those employed as workmen by the Railway, Post, Telegraph and Telephones Departments. Thus by the exclusion from the application of section 1(3) the provisions of the Industrial Relations Ordinance, 1969 have been made applicable to the workers of Telegraph and Telephone Department. Consequently, the grievance petition was competently filed before the Labour Court.
9. The unreported judgment of the Supreme Court in Federation of Pakistan ibid, relied upon by the learned counsel for the petitioner is inapplicable to the present case in that the respondent- employees therein was a Director in the Telegraph Department and would not therefore fit into the definition of worker or workman either under the Factories Act, 1934 or Workmen's Compensation Act, 1923 as mentioned in section 2(b) of the Civil Servant Act, 1973. Furthermore, the Lahore High Court in Arif Ali v. Government of Pakistan (1994 PLC (C.S.) 178) relying upon two unreported judgments of the Supreme Court of Pakistan held that the employees of the Pakistan Telecommunication Corporation were not treated as civil servants for the purpose of Service Tribunal, notwithstanding their transfer from Telegraph and Telephone Department to Pakistan Telecommunication Corporation.
10. For the foregoing reasons we hold that the respondent-employees were not civil servants but permanent workmen within the definition of the Labour Laws and no exception can be taken to the judgments of the learned Chairman, Labour Appellate Tribunal in coming to the same conclusion.
The writ petitions therefore are dismissed with no order as to costs.
' Above are the detailed reasons in support of our short judgment dated I 31-5-1995.