DECISION ' The factual background of this case is that appellant Hussain Ahmed got employment as helper with the respondents i,e, The General Tyre and Rubber Co. Of Pakistan Limited with effect from 5-4- 1994. His case is that he was initially appOinted as probationer and on completion of three month's service he became permanent workman by operation of law. On 1-11-1998 he met with an accident resulting in serious injury on his left hand. He was therefore referred for treatment to the Hospital of Social Security Institution. On 7-1-1995 he was declared medically fit by the said Hospital and as such he reported for duty on 8-1-1995 but instead of allowing him to resume his duty the respondents pursuaded him to accept fresh appointment which he declined. As a result his services were terminated but no written order was issued nor served on him. After observing the necessary legal formalities he filed grievance petition under section 25-A, I.R.O., read with Standing Order 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for his reinstatement with full back benefits.
2. The respondent's company opposed the grievance petition, making averment that appellant was employed purely On temporary basis as a helper and his services were terminated on 14-11- 1994. The grievance notice dated 30-3-1995 given by the appellant was time-barred. According to the respondent's version the appellant was not a workman as defined in section 2, I.R.O. And hence his petition was not maintainable.
3. It seems, appellant produced himself as his own witness and filed affidavit-in-evidence and the respondents produced their Factory Manager Tariq Saulat as their witness and produced his affidavit-in-evidence. The learned Labour Court after appreciating the material brought before it dismissed the grievance petition by its order, dated 27th May, 1999. Aggrieved by the said order the appellant has come before this Tribunal in the present appeal.
4. I have gone through the material brought on record and also patiently heard the arguments of Mr. Shafiq Qureshi appearing for the appellant and Mr. Mehmood A. Ghani appearing for the respondents.
5. The controversy between the Advocates of the parties was mainly confined to the nature of employment that the appellant had in the establishment of the respondents. Whether his employment was permanent as has been contended by the appellant counsel or it was purely temporary which is the case of the respondents. For taking decision on this point it may be useful to first refer to the Appointment Order. It is Exh.1/3 at page 105 of the lower Court's record. On perusal of the order it becomes clear that it was issued on 5-4-1994 and the appellant was appointed as a temporary helper on a temporary work which was to be over at any time within a period of six months. It further shows that he was also issued a temporary Card and the Appointment Order was terminable without any notice or pay in lieu thereof. His wages were fixed at Rs,50 per day only. However, the argument of the learned counsel for the appellant was that since the services were terminated with effect from 8-1-1995, it proved that he was in service for over 9 months. No doubt the definition of "permanent workman" as given in clause (b) of Standing Order 1 of Standing Orders Ordinance, 1968 shows that if the workman is engaged on work of permanent nature likely to last more than 9 months he will be treated as permanent workman. The learned counsel has, however, overlooked the nature of appellant's employment and instead has stressed on the length of service in order to prove that he was a permanent workman. As stated above the Appointment Order was crystal clear that he was to work only as a temporary helper and as such appointment could end at any time during the period of six months. Had he not suffered any injury during the employment his services might have been terminated before the date of Termination Order. It was only because he was under treatment of the Hospital of Social Security Institute that his termination was somehow postponed. As soon as he was declared medically fit by the said hospital and on the basis of that declaration he reported for duty, the management took no time in terminating his services which were actually terminated on 8-1-1995, the very day on which he was declared medically fit. Accordingly he cannot be held to have continued in service up to the date of termination for the reason that he was a permanent employee. The authority reported as 1999 SCM R 2557 relied upon by the appellant's Advocate in support of his argument that appellant having completed more than 9 months in service his appointment was of permanent nature, in my opinion is not applicable in this case because the appellants' employment lasted for more than 9 months only for the reason that he was under treatment of his hand injury and not due to nature of his engagement. His argument that appellant was initially appointed for three months on probation and on completion of that period his appointment became permanent was also without substance. The appellant's Appointment Order which is the basic document determining the nature of his appointment does not give any such indication that following his appointment as helper he had first remained on probation for a period of three months. Moreover, the post of helper was not of permanent nature as helpers who are generally taken up on daily wages are frequently changed. Even the appellant was paid Rs,50 per day as is clear from the Appointment Order and therefore, he too was appointed on daily wages.
On the contrary the aforesaid authority clearly shows that as the nature of the work which determines whether the workman is permanent or temporary, as pointed out earlier the helpers' appointment is not of permanent nature and since helpers are appointed on daily wages they are likely to be changed now and then. Similarly other authority reported as 1996 PLC (C.S.) 385 relied upon by Mr. Shafiq Qureshi, Advocate of the appellant also does not help him which, inter alia, lays down trt period of employment is not the sole determining factor. The said learned counsel has obviously taken advantage the period elapsed between the date of appointment and date of termination without looking to the other factors which clearly show that appointment was purely temporary.
6. On the other hand Mr. Mehmood A. Ghani learned counsel for the respondents has placed reliance on the authority reported as 1990 SCM R 1539 according to which length of employment was not accepted as ground or test for determining the nature of work in the said reported case work of employee was not of permanent nature, however, long may be his employment, therefore, he could not be taken to be permanent workman. Moreover, it was further held in the said case that person to be served as work-charged employee on daily wages cannot claim to be a permanent workman even if he served for 8 years.
7. Apart from above the respondent's counsel has referred to the appellant's application seeking employment with the respondents. It is Exh. AW/1 dated 29-3-1994. It appears from the application that even the appellant himself has requested the respondents for temporary appointment for him. The fact that he was issued Temporary Card also supports the respondent's version that appellant's appointment was temporary and not permanent. The appellant himself has admitted in his affidavit-in-evidence that in the application which bears his signature he had requested for temporary employment. He also admits that Appointment Order which he has produced as Exh.
AW/1/3 bears his signature. His further admission is that Employment Card issued to him carried the stamp of temporary employee which he has produced in original as Exh.AW/1/4. He also admits that he knew that his employment was up to 5-11-1994. For the above reasons I am convinced that appellant's appointment was purely temporary and as such the conclusion of the learned Labour Court is correct in this respect.
8. Relying on clauses (3) of Standing Order 12 of the Standing Orders Ordinance, 1968 the learned counsel for the appellant has raised objection that the appellant's services were terminated by verbal order and further no reason was given for his termination. It is not denied that the Termination Order was issued by the respondents and it is produced in lower Court's file as Exh.AW/5. It also bears the date January 8, 1995 which is admittedly the date of termination of appellant's services. But the contention of the learned counsel was that it was not duly served on the appellant. On its perusal it is found that it carries the signature of the appellant though the appellant had denied its authenticity. On comparing his signature on the Termination Order which he has disputed with his admitted signatures on Appointment Order and declaration filed by him on the application he had made for his appointment, there appears no difference between the said' signatures. The disputed signature rather tallies with the admitted signature. Even otherwise I see no reason why the respondents should have avoided to issue Termination Order in writing.
Since their Written Order is available on record I cannot believe why the respondents had not served the same on the appellant.. Therefore, the statement of the appellant's counsel that though Termination Order was issued yet it was not served on the appellant was not correct.
9. Coming to his other objection that no reason had been given for termination of appellant's services as required by aforesaid provision of law. Suffice it to say that his appointment was purely temporary which was likely to last only for six months but was postponed due to appellant's having received injury on his hand and as soon as he was declared medically fit and he reported for duty his services were terminated without any loss of time.
10. Finally it is to be seen whether the appeal filed by the appellant was time-barred. The details given on the copy of judgment delivered to the appellant indicate that application for copy was made on 27-5-1999, the very date on which the impugned order was passed. It was prepared on 31-5-1999 which was admittedly the last working day before starting of summer vacation though the lower Court reopened on 1st July, 1999 yet copy was delivered on 2-7-1999. It goes without saying that even during vacation necessary arrangements are made by the Court concerned for disposal of all urgent work. Had the appellant cared to enquire even during vacation if the copy was ready he would have come to know that it was prepared on 31-5-1999 and could have been delivered to him on the same date or some other date during the vacation. It seems he did make sure to collect the copy during vacation. Obviously his appeal was hit by limitation. That is why he has made a separate application for condonation of limitation. In order to enable the appellant to contest his appeal on merits I would like to condone the delay he had made in making his appeal.
As such his application for condonation of delay is allowed and the delay made in filing the appeal is condoned.
11. In view of the above discussion, the learned Labour Court has come to the right conclusion that appellant had failed to establish his case and, therefore, the said Court has rightly dismissed his grievance petition. Consequently the present appeal against the decision of the impugned order passed by the learned lower Court is also dismissed.