By a common judgment, as many as eleven appeals, above titled, involving identical questions of facts and law, are proposed to be disposed of.
2. The appellants were employees of the Irrigation Department of the Punjab Government, having been working against low-paid posts of such description, as Chowkidar, Helper, Gardener, Turner, Security Guard, etc. Their services were terminated, and they approached the Labour Court, Gujranwala, camping at Gujrat, for their reinstatement in service, on being treated as permanent employees. According to the respondent, the Executive Engineer, Store and Workshop Division, Mandi Bahauddin, services of the appellants, being work-charged employees, could be dispensed with, at any the, without notice and without stating any reason. As the Department had its own statutory rules, these persons, it was pleaded by the respondent, could not invoke the jurisdiction of the Labour Court for redress of their grievances, if any. The move made by them was dubbed as mala fide.
3. The last ground of resistance, however, makes no sense; and at least I find it difficult to follow as to how the petitions made to the Labour Court by the employees against their ouster from service could be said to be tainted with mala fides and lacking bona fides. Ch. Abdul Rehman, Executive Engineer, respondent himself, has appeared as a witness, to rebut the averments and contentions of the petitioners before the Labour Court. They to have made their statements as their own witnesses. A number of documents also have been tendered in evidence on both sides.
4. In the opinion of the learned lower Court it lacks jurisdiction in the matter, as no right guaranteed by any law, award or settlement, available to the applicants, has been violated, and an application under section 25-A of the Industrial Relations Ordinance, 1969 is not maintainable. In so far as the status of the appellants as workmen is concerned, I de not think, there should be any doubt or confusion about the same, as the nature of duties performed by them does not fall within the domain of sovereign functions of the State, since undeniably they have been doing manual work.
Learned counsel for the respondent has not found it possible to dispute the aforesaid status of the appellants, although it has been urged that the departmental statutory rules being in existence, the employees will be debarred from knocking at the doors of the Labour Court, by virtue of first proviso to subsection (4) of section 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance No.VI of 1968. While dealing with the cases of employees of the same category, the august Supreme Court of Pakistan had pronounced in cases, with the title, Executive Engineer, Central Civil Division, Pak P.W.D., Quetta v. Abdul Aziz and others (1996 PLC 385), that work- charged employees were not covered by the definition of 'civil servant', as given in section 2(1)(b) of the Civil Servants Act, 1973, and the Rules framed thereunder were also not applicable to them, and it was, as such, not incumbent upon them to approach relevant Service Tribunal, after having failed in their departmental representations/appeals.
5. The appellants have continuously been serving for a number of years, without interruption, although, according to the respondent, they were initially recruited for a term of three months, which period was extended from the to the, subject to availability of funds and the pending work. It has, however, not explicitly been stated if the appellants had been employed to carry out a specific project or to execute a particularised piece of work. As held in 1996 PLC 385, the authority cited above, the length of service of a worker would not be a decisive factor and it has to be seen whether throughout the period of one's incumbency he had no break in service and the work he was doing was of permanent character. Additional aspects to be considered are if he is paid also for the weekly holidays, or only for the days he has actually worked. If emoluments are paid on monthly basis to an employee, he will be deemed to have attained the status of a permanent workman. Period of employment, as already said, is not the sole yardstick, and the real test is the nature of the work, whether it is temporary or permanent. If an employee is doing work of no transitory character or duration, he may become a permanent worker, on expiry of period of nine months, in terms of clause (b) of paragraph I of the Schedule to the Standing Orders Ordinance, provided he is covered by the definition of the term 'worker', given in section 2(i) thereof. But if the work is not of permanent character and is not likely to last for more than nine months, then he is nor covered by the above provision. Burden of proof will be on the establishment or the Department to show that the employee was doing a work of no permanence, that could have remained in hand for a period exceeding nine ` months. If an employee has attained the status of a permanent workman, the Department or the employer will not be eligible to terminate his services, without strictly adhering to the provisions of law; and actually such protection is also available to an employee under the provisions of section 7 of the Civil Servants Act, 1973, which envisage that a civil servant shall remain on prescribed period of probation, and thereafter, if he is not ousted from service, on account of his unsatisfactory performance, he will be deemed to have been saddled with a Governmental job of permanent nature.
6. The President of Pakistan had also issued a policy letter on 16-3-1972, desiring that temporary staff of Pak P.W.D. Be held entitled to such financial terms and conditions, as would be admissible to them, if they were regular temporary Government servants. Following the spirit and intent of the letter, such status had also to be bestowed on employees of the other Departments of the Government. They were even intended to be given the benefit of National Pay Scales, and upon their confirmation in service they were also entitled to earn pension, on the basis of length of period of their temporary service even. In PLD 1980 SC 323 (Pakistan International Airlines v. Sind Labour Court No. 5 and others), it has been laid down that an employer is required' to discharge his obligations under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, even if he appoints a worker on purely temporary basis, with an added stipulation that such an employee may at any the be asked to stage exit from service, without observance of any legal formality. It was also observed that as the terms permanent worker' and 'temporary worker' were capable of many meanings, rule of beneficial construction would be attracted. If nature of employment of a person admits of to interpretations, the one beneficial to an employee, and not an employer, ought to be given preference. In the instant cases, it appears, the Department has been issuing letters of appointment, cunningly coached in term so as to be detrimental to the cause of the down-trodden workers, making them liable to ouster from service, at any juncture, without assigning any reason 'Employers cannot be allow to conduct themselves in a despotic manner, of as to defeat the express provisions of law, especially the Labour Laws enacted for the manifest benefit of the working class, protecting them from excesses and from punitive attitude of the employing establishments, including Governmental set-ups. I have no doubt in my mind that the appellants, in the present cases, had temporarily been recruited against posts of permanent nature, which did not become extinct within a short span of nine months. They were neither served with any show-cause notices or charge-sheets, nor were they made to face any enquiries; and in a mechanical and tyrannical manner, by invoking technicalities, they were asked to leave their jobs, in a calculated bid to divest them of financial benefits available under the Labour Laws.
7. The Labour Court, it appears, has fallen in error, in taking an indifferent view of the issue and in refusing to come to the rescue of the oppressed class of workers, who have been left to face the scourge o: continued unemployment and suffer eternally, in terms of losing their means of livelihood. I would set aside the judgment rendered, by the Court below and would accept the appeals of the employees with costs. They shall be taken back in service and shall also be paid half of the back benefits; and this would obviously also guarantee to them their continuity in service, with consequential service benefits.