1996 PLP 731 (PLC)

This common order will dispose the above‑titled three cases, in which the identical questions of law are involved. In all the three petitions the petitioners have contended that they are serving the establishment of Capital Development Authority, for a period of more than five years and therefore, in due course of time and by the operation of law they have attained the status of a permanent employees of the establishment. It was submitted that by the process of time they have also become the members of the C.D.A. Employees Federation which is registered as an industry wise trade union and is also the non‑collective bargaining agent of the Establishment. It was contended that all the petitioners are working against the posts which are of permanent nature but the respondents, due to the annoyance with their trade union activities, are bent upon victimization of the petitioners by way of dismissal, termination, retrenchment or otherwise removal from service, which constitute an act of unfair labour practice within the meaning of section 15 of the I.R.O., 1969. Considering such` averments interim injunction was granted in favour of the petitioner.

2. The petition was strongly contested by the respondents by way of filing written statement and rejoinder to the stay application wherein certain preliminary legal objections as to the maintainability of the petition were also raised. 3.I have heard the learned counsel for the parties and hence also considered the record of the case.

4. It is an admitted feature of the cases that all the petitioners in three petitions have served the establishment of Capital Development Authority as "Malies and Baildars" for a period of more than nine months. Some of the petitioners have served the establishment for a period of more than three years. However, it is further an admitted position that all the petitioners have joined the C.D.A. Employees Federation and have performed their lawful trade union activities accordingly. It is another strange and interesting and also admitted feature of the case that all the petitioners have been appointed on various occasions for a period of 89 days only and this practice continued for a period of years. It is evident that this practice has been adopted by the respondent establishment because of the provisions of section 22(4)(a), whereby a worker becomes entitled to take part in the trade union activities and also becomes a member of a trade union of the establishment, if his services are more than three months. It would be necessary to reproduce the said provisions as under:‑‑ 22(4). Every employer shall‑‑ (a) on being so required by the Registrar; submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and. the place in which he is employed, his ticket number and the date of his employment in the establishment; and (b) provide such facilities for verification of the lists submitted by him and the trade union as the Registrar may require ...... Provided that, in computing the period of three months referred to in clause (a) in the case of a workman employed in a sessional factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding seasons shall also be taken into account." After going through these provisions, the employment of employees for 89 days becomes clear because if a worker/employee have a service, career of less than three months then his name shall be excluded from the list of workmen employed in the establishment as required by the Registrar, Trade Union for the purposes of ascertaining the membership of the union. The intention of the respondents by employing a person for 89 days also become clear that the respondent intends to deprive the workmen from becoming a member of a trade union and from taking part into the lawful trade union activities, therefore, on, the face of it, it is evident that the respondents intentionally rather with mala tide intention are employing workmen/employees/petitioners again and again for period of 89 days only in order to deprive them from their lawful right of taking part into the trade union activities. It is necessary to observe here that the petitioners have been accepted as member of the C.D.A. Employees Federation and have become the members of the said union to the notice and knowledge of the respondents. Therefore, the respondents now cannot deny to the performance of lawful trade union activities by the petitioners.

5. There is also no denial to the fact that the posts of "Malies and Baildars" in the establishment of Capital Development Authority, are of permanent nature. The provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Schedule 1, of section 2(g) provides the classification of workers and it would be necessary to reproduce the definition of a permanent workman as enumerated in section 1(2) of the said Schedule: "

1. Classification of workmen. ‑‑‑(a) Workmen shall be classified as: (1) Permanent, (2) Probationers, (3) Badlis, (4) Temporary, (5) Apprentices (b) A "permanent workman" is a workman, who as 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, 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, including breaks due to sickness, accident, leave, lock‑out or 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." After going through the said definition and keeping in view the admitted fact that the petitioners have continuously served the establishment of Capital Development Authority for a period of more than 9 months some of them more than 3 years there is nothing to restrain this Commission from holding that the petitioners have attained the status of permanent employees of the establishment of Capital Development Authority and, therefore, the services of the petitioners cannot be terminated/dismissed/retrenched but in accordance with the provisions of law. The provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, have also become applicable upon the petitioners therefore, strict compliance of provisions of Standing Order 12(3) is required for any such purposes. Besides, it is also an admitted feature of the case that the petitioners are primarily engaged for the affairs and business of the establishment. It may be connected with agriculture but they were not engaged perform any work of small nature, therefore, in view of the findings of the Hon'ble Supreme Court of Pakistan in reported case by Mr. Justice Shafiur Rahman i.e. 1989 SCMR page 888, the petitioners are the permanent workers or the establishment of Capital Development Authority, Islamabad. Furthermore, the posts against which the petitioners, are engaged are of permanent nature, therefore, there is no reason with the employer/respondents to retrench, dismiss or terminate the services of the petitioners and recruit other persons of their choice. The job is of permanent nature and in view of the above findings, the employee has successfully completed his period of probation and a further service of 9 months, then he has qualified the definition .of a "permanent worker". In this connection the findings/guidelines can also be achieved from the judgment written by Mr. Justice Dorab Patel reported in PLD 1980 SC

323. Another case‑law, which is although cited by the learned counsel for the respondents i.e 1993 PLC 303, whereby the Division Bench of the Karachi High Court has mainly relied upon the findings of the Hon'ble Supreme Court of Pakistan in the case PLD 1980 SC 323, also supports the contention of the petitioner that if the job is of permanent nature and if the worker has successfully completed a period of 9 months then he becomes a permanent workman within the meaning of the definition provided by the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The learned counsel for the respondents has also made reference to certain other case‑laws but the facts of those cases are very much distinguishable from the case in hand and he has also failed to show any cogent reason that why the process of employment of 89 days is repeated again and again with the petitioners if the intention is not mala fide i.e. to deprive them from their lawful rights of taking part in the trade union activities or otherwise. The respondents cannot be allowed to circumvent the provisions of law and illegally and mala fidely deprive the petitioner from the benefits provided by the law to them. It is nothing but an act of unfair labour practice within the meaning of section 15 of the I . R. O. , 1969.

6. As a result of the above discussion, in the exercise of the power under section 22‑A(8)(g) of the I.R.O., 1969 all the three petitions are accepted and the petitioners to all the petitions are declared to be the permanent employees of the establishment of Capital Development Authority and the respondents are restrained from termination, dismissal. or "retrenchment of the petitioners, through unfair labour practice. In the exercise of my powers under section 22A(9) of the Industrial Relations Ordinance, 1969 the respondents are further directed to regularise the services of all the petitioners in the three cases.

7. The petitions are disposed of in the above terms without any orders as to costs. H.B.T./275/NIRC Petitions accepted.