1999SCMR2557 (PLP)

SAIDUZZAMAN SIDDIQUI, J.

The abovementioned two appeals with the leave of this Court are directed against the judgment of a learned Judge in Chambers of Lahore High Court, Bahawalpur Bench, dated 28-2-1993. This order will govern disposal of both the above appeals as points of law and facts are identical in both the cases.

2. The appellants in the above appeals were appointed as Delivery Assistant in the Cotton Export Corporation of Pakistan on 1-10-1986 and 12-10-1986 respectively. The letter of appointment shows that the appointment was purely temporary in nature and was likely to last for three months only. The case of appellants throughout has been that although they were described as temporary workers in the appointment letter, their appointment was against permanent posts and that they remained in the employment of respondent No.2 upto 30-4-1989. It was also contended by the appellants that although the management, in order to circumvent the law, terminated their services on successive period of 3 months and then again re-employed them in the same position with a break of one or 2 days, their last assignment lasted for over 13 months and as such, they were covered by definition of 'permanent workman' given in the Schedule to West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be referred as 'the Ordinance of 1968'). The appellants, accordingly, upon termination of their employment approached the Labour Court under section 25-A, of the Industrial Relations Ordinance, 1969 (I.R.O.) and prayed for reinstatement in service in terms of provisions of the Ordinance of 1968. The grievance petition filed by the appellants was resisted by the respondents and the learned Labour Court after recording evidence of the parties, came to the conclusion that the appellants were only seasonal workers, and therefore, they were not covered by the definition of 'permanent workman' given in the Ordinance of 1968. The appellants preferred appeals against the judgment of learned Labour Court before the Punjab Appellate Tribunal, Lahore. The learned Tribunal accepted the appeals and came to the conclusion that as the last assignment of the appellants was for a continuous period of about 13 months and that they were working against a post which was of permanent nature, they were covered by the definition of 'permanent workman' given in the Ordinance of 1968. The respondents questioned the decision of learned Appellate Tribunal before the Lahore High Court, Bahawalpur Bench, in Writ Petition No. 143-S of 1991 which has been allowed on 28-2-1993 against which leave has been granted by this Court as follows:-- "Leave is granted in both the petitions to consider whether the petitioners had been working against permanent posts for more than nine months and were permanent employees and that the intention of respondent No.2 to keep them temporary and grant extensions with short gaps was mala fide not affecting their status as permanent employees. " At the hearing of these appeals, no one appeared on behalf of the respondents. The learned counsel for the appellants has taken us through the record of the case and has contended that in view of the evidence produced before the Labour Court, it was established beyond any shadow of doubt that the last assignment of the appellants with the respondents exceeded nine months period, and therefore, they would fall within the definition of 'permanent workman' given in the Ordinance of 1968. In support of the contention that the appellants were working against permanent posts, the learned counsel has relied on a statement, dated 26-10-1988, filed before the Labour Court, which reads as follows:-- "COTTON EXPORT CORPORATION OF PAKISTAN ZONAL OFFICE AHMED PUR EAST REVISED NO/CEC/APE/88-89/ 1388., Dated 26-10-1988. Monthly return of the officials working in Ahmed Pur East Zone for the Month of September, 1988. S. No. Name of Employee Designation Weather permanent or Temporary

1. Mr. Maqsood A. Shah Zonal Manager Permanent

2. Mr. Ghulam Shabir Ansari C. E. C. Permanent

3. Mr. Mumtaz Hussain D.M. (Accounts) Permanent

4. Mr. Ali Zar Khan A. M. (Accounts) Permanent

5. Mr. Muhammad Saleem C. A. (Commercial) Permanent

6. Mr. Said-ur-Rehman Saifi J. A. Permanent

7. Mr. Muhammad Riaz J.A. (Typist) -do-

8. Mr. Imtiaz Ahmad Khan J.A. -do -

9. Mr. Izhar Ahmed Khan. D.A. -do -

10. Mr. Ata-ur-Rehman Khan D.A. -do-

11. Mr. Abdul Aziz Naib-Qasid. Permanent

12. Mr. Muhammad Ashraf Driver Temporary against Perinanent Post

13. Mr. Kadim Hussain S/Guard. -do-

14. Mr. Ghulam Muhammad S/Guard. -do -

15. Mr. Abdul Majeed S/Guard. Temporary as Reliever

16. Mr. Baqa Muhammad Mali/Cook Temporary against Permanent post

17. Mr. Rashid Ahmad Sweeper. Daily Wages (Sd.) (Maqsood A. Shah), Zonal Manager, Ahmed Pur east According to above statement which was produced before the Labour Court, the two appellants namely Imtiaz Ahmad Khan and Izhar Ahmed Khan, were shown as temporary worker against a permanent post. Apart from the above document the appellants have also relied on an Officer Order, dated 7-10-1987 which reads as follows:- Cotton Export Corporation of Pakistan (Private) Dated 7-10-1987 Subject: Appointment of Staff in I upcountry offices during 1987-88 season. With reference to Office Order No. CEC/ESTT. 9-2/86 dated 12 8-1986 on the above subject, all Regional Managers/Zonal Managers are hereby authorised to appoint staff against sanctioned posts for the cotton season 1987-88 with the prior approval of G.M. (Purchase)/Vice-Chairman, subject to the following:-- (1) Appointment. Against Seasonal/Tern or Posts. The Regional/Zonal Managers are authorised to make appointments of seasonal/temporary staff against the sanctioned seasonal/temporary posts of the level of Junior Assistant, Delivery Assistant, Yard Assistant, Naib Qasid, Security Guard and equivalent as per existing procedure as and when required. The seasonal/temporary staff should be appointed on consolidated wages. Appointment against Regular Posts: The Regional/Zonal Managers are authorised to make appointments on temporary basis against sanctioned regular posts of the level of Junior Assistant, Yard Assistant, Delivery Assistants, Naib Qasid, Security Guards and equivalent as :per existing procedure but approval of Head, Office would be required for bringing their services on regular footing. Staff appointed on temporary basis against sanctioned regular posts may be given the time pay scale of the .relevant post. (Sd.) . (Aftab Ashraf Sheikh) (General Manager (P&T). " According to above letter, the General Manager (P&T) had recommended for allowing time scale of the relevant post to the staff who were appointed on temporary basis against sanctioned regular posts. The learned counsel for the appellants very vehemently contended that on reading of above 2 documents, dated 26-10-1988 and 7-10-1987 there can be no doubt that the appellants though described in their appointment letter as temporary, were working against a post which was of permanent nature arid that the break in their services shown in the record was merely to circumvent the provisions of the Ordinance of 1968. The definition of permanent and temporary workmen as given in the Schedule to the Ordinance of 1968 reads 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 and. eighty-three days during any period of twelve consecutive months:. . (e) A 'temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period of not exceeding nine months." A careful analysis of the above definition of 'permanent workman' and 'temporary workman' would show that it is the nature of work on which a workman is employed that determines whether the workman is a permanent or a temporary workman. If the work is of a permanent nature and likely to last for a period of more than nine months, the workman employed on such a work, who successfully completes a probationary period of three months, will be deemed to be a 'permanent workman'. On the other hand, if the nature of work is' temporary and is likely to be finished within a period of nine months, then a workman employed on such work will be deemed to be 'temporary workman'. As a corollary, it follows that mere fact that if the work of a temporary nature continues beyond nine months, it would not make a workman employed on such work a 'permanent workman' as the expression "likely to be finished within a period not exceeding nine months" used in the definition clause does admit within its scope that a work of temporary nature may in certain circumstances stretch beyond nine months. My above conclusion finds support from the ratio of the decision in the case of Pakistan International Airlines v. Sindh Labour Court No.5 (PLD 1980 SC 323). In the case before us, the material brought on record, which has not been contradicted, clearly shows that the post against which appellants were employed was of permanent nature, although the appellants were described in their appointment letters as purely temporary. it is also on record that the period of continuous employment of appellants on these posts with the respondents admittedly continued beyond the period of nine months, arid therefore, they shall be deemed to be 'permanent workman' within the meanings of the definition given in the Schedule to the Ordinance of 1968. This , aspect of the case, however, was not noticed by the learned Single Judge while reversing findings of the First Appellate Court. The respondents before the learned Judge relied on the following cases in support of their contention that the appellants will not be deemed to be 'permanent workman':-- (1) Messrs Pakistan National Produce Company Ltd., Shikarpur v. Nawab Ali Budhani and another (1990 PLC 585) and (2) Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others (1990 PLC 213), In the first noted case the respondents, who were the workers of the appellants, were initially employed on a contract project, which was taken on lease by the appellants for one season. Their services were terminated and in token of receipt of the termination letters, the respondents in that case received their dues in full and final settlement without challenging the actions of the management in any manner. The appellants, thereafter, offered a fresh to the respondents in that case which they accepted and their services were again terminated by the appellants in that case alongwith number of workers. In a dispute raised under section 25-A of I.R.O. 1969, it was contended before the Appellate Tribunal that they shall be deemed to be a permanent employee as their period of employment exceeded the period of nine months but the contention was repelled as follows:- "From the perusal of the above admissions, it is apparent that the respondents had themselves accepted all fresh appointments and did not care to seek legal remedy which was secured and guaranteed under the Labour laws. Therefore, the present grievance petitions were nothing, but, an afterthought and as such, these are not legally maintainable, Mr. Ali Amjad, the learned Advocate for the respondents could not point out any fact or law in rebuttal of the. contentions of Mr. Muhammad Hamayoon, the learned Advocate on behalf of the appellants establishment. In view of the matter, 1 would hold that the respondents had no right to maintain their grievance notices or grievance petitions before the Labour Court and that the learned Labour Court was not right in passing the impugned order. I would, therefore, set aside both the impugned orders and uphold the actions of the appellants establishment against both these respondents. The above observations of learned Tribunal is hardly of any assistance to the respondents in the above cases. In the 2nd noted case, a learned Division Bench of High Court of Sindh dismissed a writ petition filed by the aggrieved worker, who was employed with respondent No. l as Empty Godown Supervisor to maintain the record of Empty Bottles. The learned Judges of the Division Bench, however, during the course of discussion in that case made the following observation:- "After going through the decision of the learned Appellate Tribunal we find that the same is not open to exception. Even if, it is accepted that the petitioner was a permanent workman or that the nature of his job was not temporary, the same would still fail to advance the petitioner's case as the impugned order shows that the petitioner had failed to establish that the action of the respondent No. l was tainted with mala fides or that the petitioner had been victimised or singled out for such action or that the juniors had been retained but he was ousted. Standing Order 12 (3) only imposes an obligation upon the employer not to remove, retrench, discharge or dismiss from service any workman, except by an order in writing which shall explicitly state the reasons for the action taken. The order issued by the employer terminating the petitioner's services in no way fails to meet the above requirements as it has been clearly stated that the factory was being closed due to off-season, and therefore, the services of the petitioner were not required by the employer. This is a case of termination simpliciter and in that case the onus was clearly on the petitioner to establish mala fides as pointed out by the learned Appellate Tribunal. " The above observations have no application to the facts of the present case. The learned Appellate Tribunal on a finding of fact reached the conclusion that the last assignment of the appellants with the respondents was far in excess of nine months which included three months probationary period. This finding of fact could not be controverted before the learned Single Judge and as such in absence of that, there was no justification to reverse the finding of learned Appellate Tribunal. We accordingly, allow these appeals, set aside the order of learned Judge in Chambers and restore order of the learned Appellate Tribunal. As the respondents have not appeared and defended the cases, we will make no order as to costs. H.B.T./I-29/S Appeal allowed.