' JAVED IQBAL, J.---These appeals, by leave of the Court, are directed against the judgment, dated 13-4-1999 passed by learned Single Bench of Lahore High Court, Lahore, whereby the appeal preferred on behalf of Province of the Punjab through Secretary Irrigation and Power Department, Lahore, (appellant) has been dismissed and order, dated 18-7-1996 passed by learned Punjab Labour Appellate. Tribunal was kept intact.
2. By this common judgment we propose to dispose of Civil Appeals Nos.1569 to 1579 of 1999 having arisen out of the common judgment.
3. Leave to appeal was granted by means of order, dated 24-11-1999 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:- "We propose to dispose of abovementioned 11 petitions for leave to appeal by a consolidated order as the questions of law and facts involved in these cases are identical and they also arise from the same impugned judgment.
2. Private respondents in the above petitions were working as Chowkidars, gardeners, helpers etc in the Irrigation Department for a number of years. Their services were terminated by the department describing them as work charged employees. The respondents filed grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969 (I.R.O.) before the Labour Court but their grievance petitions were dismissed on 12-1-1994 with the observation that the grievance petitions were not maintainable in law. However, on appeal the learned Labour Appellate Tribunal, Punjab, reversed the judgment of the Labour Court, by judgment dated 18-7-1996 and the private respondents have been directed to be reinstated in service with half back benefits. The Province of Punjab is now seeking leave to appeal against the judgment of learned Labour Appellate Tribunal.
3. The learned counsel for the petitioners in seeking leave to appeal inter alia, contended that private respondents being work-charged employees, could not be ordered to be reinstated in service. It is also contended by the learned counsel for the petitioners that the grievance petitions filed by the petitioners were not maintainable in view of section 1(4)(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
' The contentions raised by the learned counsel for the petitioners require examination and we, accordingly, grant leave to appeal to consider the same."
4. It is mainly contended by Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court that the appellants being "work-charged employees" having their own statutory rules cannot invoke the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance, 1968) in view of the bar as contained in section 1(4) of the Ordinance, 1968. It is urged with vehemence that the respondents were recruited purely on temporary basis and their services could have been terminated in view of the terms and conditions as enumerated in their appointment orders wherein it was made abundant clear that the nature of appointment was temporary. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court on behalf of Government of the Punjab has also referred Rule 1.131 of Chapter 1 of the Establishment Temporary and Work-Charged Regularization/Rules of the Irrigation Department (hereinafter referred to as the said rules).
5. Raja Abdul Ghafoor, learned Advocate Supreme Court appeared on behalf of respondents and vehemently opposed the view-point as canvassed by Mr. Arshad Ali Chaudhry, learned Advocate.
Supreme Court on behalf of appellants by supporting the impugned judgment. It is also argued that respondents were not "work-charged employees" in view of their tenure of service which is more than several years and as such no employee can be termed as "work-charged employee" and ousted from service without any lawful justification. It is also pointed out that the respondents were not Government servants but on the contrary permanent workers who could have invoked the provisions of relevant Labour Laws against their unlawful termination order passed by the appellant.
6. We have carefully examined the respective contentions as agitated on behalf of the appellants and for respondents. The entire record has been perused with the eminent assistance of the learned counsel. The judgment dated 12-1-1994 passed by learned Punjab Labour Court, judgment dated , 18-7-1996 passed by learned Punjab Labour Appellate Tribunal and impugned judgment were also perused with care and caution in the light of relevant provisions of Ordinance, 1968 and section 25-A' of the Industrial Relations Ordinance, 1969, (hereinafter referred to as the I.R.O.). The pivotal question which needs determination is as to whether the respondents were competent to file grievance petition under section 25-A of I.R.O. In view of section 1(4)(e) of Ordinance, 1968 and more so, as to whether being "work-charged employees" can be ousted from service at any time without assigning any reason. We intend to discuss the latter question first. In this context it is to be examined whether the so-called "work-charged employees" of Irrigation Department are being appointed, confirmed, promoted and terminated under any Rule having statutory backing or their entire career and fate depends upon the one stroke of pen of the concerned functionary of the Government by ousting them from service without assigning any reason. There is no denying the fact that if statutory Rules exist, the "work-charged employees" cannot invoke the provisions of Ordinance, 1968 and section 25-A of I.R.O. When the learned Advocate Supreme Court on behalf of Government of the Punjab was asked to point out the relevant statutory rules, a mention was made about rule 1.131 of Chapter 1 of the said rules which is reproduced hereinbelow for ready reference as the prime contention of the learned counsel for appellants revolved around it on the basis whereof the respondents were declared as "work-charged employees":-- "1.131 Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision, of a specific work of or sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such a work or sub-works provided that as an exception to the above mistries and mates employed in the interests of Government on the technical supervisions of contractors work and Khalasis attached to subordinates for assisting them out on work employees--borne on the temporary establishment should for the time being the charged direct to the work."
7. A careful perusal of the provisions as contained in the said rule would reveal its components and ingredients, which in our considered view, are as follows:--
(a) Employment for a specific project or sub-work of the specific project.
(b) Such employment would be distinct from general supervision.
(c) The supervision of departmental, labour, stores and machinery concerning the specific project.
(d) The Mistries and Mates employed for technical supervision of the contractor work in the interest of Government.
(e) The Khalasis appointed for the assistance of the employees category whereof has already been mentioned.
8. We have purposely bifurcated the said rule in different categories and components to ascertain the status and category of the respondents and further to see as to whether the said rule can be made applicable to respondents. We have examined the nature of appointment of all the respondents who are working as Turners, Helpers, Chowkidars, Security Guards and Gardeners. The provisions as contained in rule 1.131 of Chapter of the said rules cannot be made applicable to the respondents for the reason that their employment was not for a specific project or for sub-work of a specific project. They were not excluded from the general supervision of Irrigation Department, they have no concern whatsoever with supervision of departmental labour, stores and machines either concerning the specific project or sub-work of specific project. They were never assigned the task of Mistries and Mates for technical supervision of the contractor work in the interest of Government. Their job description is altogether different from Khalasis. In view of what has been discussed above the provisions as contained in Rule 1.131 of Chapter 1 of the said rules cannot be interpreted and fetched up to the extent of respondents declaration as "work-charged employees".
Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court conceded frankly that he could not mention the name of that specific project against which the respondents were appointed and as to whether the said project was still in existence or completed. He also fairly conceded that a few of the respondents are having more than two decades of service. It is worth-mentioning here at this juncture that once it was proved that the respondents remained employees for years together, the burden of proof was on the Irrigation Department to have shown that the respondents were purely "work-charged employees" and the nature Of their work was purely temporary which could not have denied for more than nine months. We are conscious of the dictum as laid down in case titled Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others (1990 SCM R 1539) wherein it was observed that "length of service of a worker would not be of a decisive factor but it is to be seen whether throughout the period of this incumbency he had a break in the service, particularly, whether worker was paid for the weekly holidays. Because initially if a person is engaged to perform duties on work-charge basis he would be entitled to get wages for the days, for which he actually worked, but as on the holidays, he had not worked, therefore, he would not be compensated. In the instant case, perusal of the case file abundantly makes it clear that after the date of appointment, respondents continuously worked. So much so, they were paid monthly emoluments, therefore, in view of the definition of the 'permanent worker' under Standing Order 1(1) of the Ordinance of 1968, undoubtedly the respondents have attained the status of 'permanent workers' and the petitioner-department was not competent to terminate their services without strictly adhering to the provisions of law. This proposition can also be attended keeping in view the provisions of section 6 of the Civil Servants Act, 1973, which envisages that a civil servant shall remain on two years' probation period and thereafter unless his service is not terminated on account of unsatisfactory performance, he shall be deemed in the permanent job of the Government. Accordingly with whatever angle the case of the respondents is viewed, in our opinion, after continuous satisfactory employment for a period of two years they had attained the status of permanent employees and the forums below have appropriately considered the respective rights of the parties and had arrived at a conclusion which is not open to exception." The said dictum would, however, cannot be made applicable in the case in hand as no existence of whatever project irrespective of its nature whether permanent or temporary could be shown against which the respondents were employed.
9. Now here at this juncture the question arises that if the respondents do not fall within the ambit of "work-charged employees" what would be their status. In view of the peculiar circumstances of the case, their tenure of services, nature of job and in absence of any specific project would bring them within the ambit of permanent worker as mentioned in paragraph (1)(b) of the Schedule of Ordinance 1968 and resultantly they could press into service section 25-A of the I.R.O., for the redressed of their grievances. In this regard we are fortified by the dictum as laid down in case titled Executive Engineer v. Abdul Aziz (1996 PLC 385) wherein it was observed as under:-- "17. According to the appellant-department, the respondents were employed on work-charged basis, therefore, they are excluded from the definition of "civil servant" by virtue of sub-clause (ii) of clause (b) of subsection (1) of section 2 of the Act. They will also be excluded if they are workers or workmen as defined in the Factories Act, 1934 or the Workmens Compensation Act, 1923. It seems that the respondents are not covered by the definition of "worker" given in section 2(h) of the Factories Act, 1934, as they are not employed directly or through an agency in any manufacturing processor in cleaning any part of the machinery of premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, whether for wages or not. Whereas the definition of "workman" given in section 2(1)(n) of the Workmen's Compensation Act, 1923, appears to be very wide in its scope as it provides as follows:-- "2(1)(n) 'Workman means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is--
(i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(ii) employed on monthly wages not exceeding three thousand rupees, in any such capacity as is specified in Schedule II."
A perusal of the above definition shows that "workman" means any person other than a person whose employment is of casual ,nature and who is employed otherwise than for the purpose of the employer's trade or business. The definition includes railway servant as defined in section 3 of the Railways Act, 1890 not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as specified in Schedule II. It also includes persons employed on monthly wages not exceeding three thousand rupees in such capacity as is specified in Schedule II.
18. It may be noticed that the proviso to the above sub-clause (ii) of clause (n) lays down that it does not make any difference whether the contract of employment was made before or after the passing of the said Act and whether such contract is express or implied, oral or in writing. It may be pointed out that originally the above proviso excluded any person working in the capacity of a member of His Majesty and in Indian Service.
' The above amendments were made by Ordinance No,XXVII of 1981 and by amending Ordinance No,XXXVII of 1937 respectively. It may also be stated that item 8 of the II Schedule referred to in the above clause includes within the definition of 'workman the person employed in the construction, repairs or demolition of any building or structure, any dam or embankment which is 20 feet or more in height from its lowest to its highest or any road or tunnel or any war qua, sea-wall or marine work including any mooring of ships. There is long list of the items in the above II Schedule including the persons working in the various walks of life referred to therein for the purpose of including in the definition of 'workman'. It may be observed that prima facie respondents are covered by item No,8 of the above II Schedule to the Workmens Compensation Act and, therefore, they are also excluded from the definition of 'civil servant' on that account. It is, therefore, evident that the respondents cannot be treated as civil servants for the above two reasons." .
' It was also observed while discussing the applicability of I.R.O. In such like cases as under:- "26. I may now deal with the third point, whether the provisions of the I.R.O., could have been pressed into service. In this behalf, it may be pertinent to observe that section 1 thereof deals with the extent, application and commencement of the I.R.O., subsection (3) thereof provides that it shall not apply to any person employed in the establishments referred to in sub-clauses (a) to (f).
The above sub-clauses read as follows:-- '(3) It shall not apply to any person employed (a) in the Police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government; or
(b) in the administration of the State other than those employed as workmen by Railway, Posts, Telegraph and Telephone Departments; or
(c) as a member of the Security Staff of the Pakistan International Airline Corporation, or drawing wages in such pay group, not lower than Group V, in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of Airlines, by Notification in the official Gazette, specify in this behalf; or
(d) by the Pakistan Television Corporation or the Pakistan Broadcasting Corporation; or
(e) by the Pakistan Security Printing Corporation or the Security Papers Limited; or
(f) by an establishment maintained for the treatment or care of sick, infirm, destitute as mentally unfit person."
27. It may be stated for the purpose of the present controversy, clause (b) is pertinent which excludes the application of the provisions of the I.R.O. To the persons employed in the administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Departments. The question, therefore, arises, whether the respondents can be said to have been employed for the purpose of the administration of the State. In this regard, reference, may be made to the following judgments:--
(i) Employees' Old-Age Benefit Institution v. National Industrial Relations Commission and others 1988 SCM R 765;
(ii) Project Director, Karkhana Alaat-e-Zari, Bahawalpur v. The Presiding Officer, Punjab Labour Court and 6 others PLD 1989 SC 152;
(iii) The Controller, Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sindh and others PLD 1991 SC 353;
(iv) Faqir Muhammad v. The Director of National Savings, Multan Region, Multan PLD 1992 SC 127.
' In the above first case, a Full Bench of this Court, while dealing with the question, whether the employees of Old-Age Benefit Institution are covered by the above expression, namely, "in the administration of the State", has pointed out that the employees of every Government department are not covered by the above expression. An extract from the judgment in the case of Sindh Road Transport Corporation v. Staff Union 1975 PLC 261 was quoted with approval as under:-- "In Sindh Road Transport Corporation v. Staff Union 1975 PLC 361 this expression came up for consideration before a Division Bench of the Sindh High Court and the learned Judges took the view: ' the expression 'administration of the State' is to be interpreted in the limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the soverign or the conducting or carrying on of the details of the Government...'
' We see no reason to place a different interpretation on the clause. The appellant institution is entirely concerned with providing old-age benefits to persons serving in industrial, commercial and similar organizations. Its functions are not relatable to any soverign functions of the State nor are they such that these may be said as pertaining to conduct or carrying on of the details of the Government. Clearly, its employees are not covered by the exclusion clause (b)."
' In the second case, the question in issue before this Court was, whether the persons employed in the Cooperative Industrial Establishment run by the administrator are persons employed in the administration of the State. It was held that the expression "administration of State" means the persons employed by the State in connection with the activities of the State in exercise of its political powers including action of legislative, judicial and executive wings, but the same does not cover the employees working in the Cooperative Industrial Establishments as they were "workers" or "workmen" within the meanings of the Labour Laws.
' In the third case, the question involved was, whether the workers of the appellant establishment i,e, the Controller, Stationery and Forms, Government of Pakistan, were covered by the expression 'in the administration of the State' used in clause (b) of subsection (3) of section 1 of the I.R.O. This Court, after referring to the various provisions and some case-law, held that because of the nature of their work, they are covered by the above expression.
' In the last case, the above expression again came up for consideration in connection with the employees in the National Saving Office, Multan Region. The appellant in the above case was a Chowkidar. There was disagreement between Abdul Shakurul Salam, J. And Muhammad Afzal Zullah, C.J. On the interpretation of the above expression the former, after referring the case-law, helds as follow s:-- "A State stands on three pillars, Legislature, Executive and Judiciary. Legislature legislates...Does not administer. Judiciary administers justice. Does not administer the State. We are left with the Executive. Does it administer the State? It does ... In respect of the sovereign functions of the State, like maintaining law and order, conducting foreign affairs, defence of the realm etc. But besides these sovereign functions, in the modern State the Executive is also entrusted with multifarious functions pertaining to the ordinary needs of the people like providing them shelter, education facilities, medical assistance etc. Either through its own employees or other organisations.
Therefore, when the Executive is performing its sovereign functions of 'Administrating the State', its employees will fall in the category of persons 'employed in the Administration of the State' ... Not otherwise."
' Whereas the latter took the following view:- "The appellant undoubtedly is employed in the said Department as a Chowkidar likely any time to guard/protect Government money. The employees of the Supreme Court in this category or for that matter in the Ministers and Departments of the Central Government even if technically be described workmen would, by virtue of the exclusion contained in section 1(3)(b) of the I.R.O., be excluded from the application of the said law."
' The matter was referred to a third learned Judge, Saad Saood Jan. He concurred with the view of Abdul Shakurul Salam, J. As under:- "Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a Directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of the State."
28. The work of construction or maintenance of buildings, which is performed by the respondents, does not have nexus with the sovereign functions of the State, and therefore, they cannot be described as persons employed in the administration of the State. The above work can be carried out through contractors. The respondents have nothing to do with the running of the Government which can be said to be contributing towards faciliating the functioning Government. I am, therefore, of the view that the respondents are not employed in the administration of the State and, hence, the above clause (b) of subsection (3) of section 1 of the I.R.O., is not attracted to. It must, therefore, follow that the provisions of the I.R.O., could have been invoked by the respondents. Since the respondents' grievance was that their services were terminated in spite of the fact that they were permanent employees in view of above paragraph 1(b) of the Schedule to the Standing Orders Ordinance in violation of Standing Order No,12, they could have filed the applications under section 25-A of the I.R.O."
10. We would like to clarify that the respondents cannot be treated as Government servants and admittedly not in view of definition of "Civil Servant" as defined in clause (b) of subsection (1) of Civil Servants Act, 1973. This Court has already examined a similar controversy in Executive Engineer's case (supra) and observed as follows:-- "As regards the above first point, it may be advantageous to reproduce clause (b) of subsection (1) of section 2 of the Act, which reads as follows:-- "(b) 'Civil servant' means a person who is a member of an All Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include-
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker' or 'workman as defined in the Factories Act, 1934 (XXV of 1934), or the Workmens Compensation Act, 1923 (VII of 1923);"
' A perusal of the above clause indicates that "civil servant" means a person who is a member of All-Pakistan Service or of a Civil Service of the Federation or who holds civil post in connection with the affairs of the Federation including any such post connected with defence. However, the definition does not include a person who is on deputation in the Federation from any Province or other authority or a person who is employed on contract or on work-charged basis or who is paid from contingencies or if a person who is a 'worker' or 'workman as defined in the Factories Act, 1934 or the Workmens Compensation: Act, 1923."
11. We are absolutely in agreement with the observations as made by learned Punjab Labour Appellate Tribunal duly concurred by the learned High Court that "in the instant cases, it appears, the Department has been issuing letters of appointment, cunningly couched in terms, 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 allowed to conduct themselves in a despotic manner, so 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 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 calculated bid to divest them of financial benefits available under the Labour Laws."
12. In the light of what has been stated above the respondents who are neither "civil .Servants" nor "work-charged employees" can invoke the provisions of I.R.O. For the redressal of their grievances being "permanent workers". The Secretary Irrigation Department may examine each case on its own merits keeping in view the tenure of service and nature of job and the respondents who are employed against any specific project or to whom rule 1.131 of Chapter 1 of the said rules is applicable (guidelines provided at paragraphs 7 and 8) and their services may be terminated after completion of all the legal formalities.
13. Before parting with the judgment we may observe that the dictum as laid down in case titled WAPDA v. Khanimullah (2000 SCM R 879) cannot be made applicable to this case as the facts are 'distinguishable and the services of "work-charged employees" were terminated as they were appointed against a specific project while the present respondents were never appointed against any project.
14. The upshot of the above discussion would be that the conclusion as arrived at the learned Punjab Labour Appellate Tribunal and learned High Court being unexceptionable and well based hardly calls for any interference The appeals being devoid of merits are dismissed with no orders as to costs.