1996 PLP 385 (PLC)

"The perusal of the above dictum visualizes 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 his 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. "

14. The ratio of the above judgment in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employer is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 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 nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant‑department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than not a months. From the side of the appellant nothing has been brought on record in this behalf. The appellant‑department is engaged in maintaining the Government residential and non‑residential buildings and constructing itself and/or causing construction thereof. The above work as far as the appellant department is concerned is of permanent nature. In this view of the matter, the finding recorded by the Labour Courts in this respect cannot be said to be not founded on evidence on record.

15. There are three points, which require consideration, namely: ‑‑ (i) Whether the respondents are civil servants in terms of section 2(1)(b) of the Act? (ii) Whether the respondents can press into service the provisions of the Standing Orders Ordinance? mid (iii) Whether the respondents are entitled to press into service section 25‑A of the I.R.O.?

16. 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, 934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII 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 Workmen's Compensation Act, 1923.

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 Workmen's 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 process or 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 "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 persons employed in the construction, repair 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 moorings 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 Workmen's 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.

19. Adverting to the above second point, namely, whether the respondents can press into service the provisions of the Standing Orders Ordinance, it may be pertinent to observe that first proviso to clause (c) of subsection (4) of section 1 of the Standing Orders Ordinance lays down that nothing in the said Ordinance shall apply to Industrial and Commercial Establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. The second proviso to above clause (c) is not germane to the controversy in issue as it lays down that the provisions of the Standing Orders Ordinance referred to therein would not be applicable in the first instance to any industrial establishment wherein not more than 49 persons are employed on any day during the preceding 12 months. It also confers power on the Government by notification in the official Gazette to extend the application of any of the said provisions to any such industrial establishment or any class of such establishments.

20. In the case in hand, it seems that Section Officer of the Government of Pakistan, Works Division, through his letter dated 24‑1‑1974 addressed to the Chief Engineer, Pak. P.W.D., Karachi (at page 65‑D of the paper book in Civil Appeal No.48‑Q of 1993) had informed him that it was decided by the Government that the Government Servants (Efficiency anti Discipline) Rules, 1973, shall be equally applicable to the temporary and work‑charged employees of Pak. P.W.D., who having been made regular vide Works Division's Letter dated 23‑5‑1973 already referred to hereinabove. The appellant has not brought anything on record to show whether the above Efficiency and Discipline Rules were made applicable to temporary and work‑charged employees other than those referred to in the letter dated 23‑5‑1973. In the absence of any material, it cannot be said that there are statutory rules applicable to the respondents. In any case, even if I were to hold that the application of the above letter was extended even to the temporary and work‑charged employees who were employed subsequent to employees referred to in the above letter dated 23‑5‑1973, the fact remains that the above rules relate to disciplinary action and they do not contain the rules governing the terms and conditions of service. In this view of the matter, the above first proviso to clause (c) of section 1 is not attracted to the present case. I may also observe that since I have held that the respondents are not covered by the definition of "civil servant" given in clause (b) of subsection (1) of section 2 of the Act, it must follow as a corollary of the above finding that the rules framed thereunder are not applicable to them. Additionally, the application of the rules by the above letter dated 24‑1‑1974 cannot have the sanctity of statutory backing.

21. This leads me to the question, whether the respondents are covered by the definition of "workman" provided for in clause (i) of section 2 of the Standing Orders Ordinance, which provides that "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. The terms "industrial establishment" and "commercial establishment" have been defined in clauses (f) and (b) of section 2 respectively, which read as follows: ‑‑ "Industrial establishment.‑‑'Industrial establishment' means‑‑ (i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or (ii) a factory as defined in clause (j),of section 2 of the Factories Act, 1934 (XXV of 1934); or (iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or (iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party. and includes the premises in which, or the site at which, any process connected with such execution is carried on: or (v) the establishment of a person when, directly or indirectly, employs workmen in connection with any, construction industry. Explanation.‑‑' Contractor' includes a sub‑contractor, headman or agent. Commercial establishment.‑‑'Commercial establishment' means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen,, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance." A perusal of the above‑quoted definition of the terms "industrial establishment" indicates that it includes industrial establishments as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936, clause (j) of section 2 of the Factories Act, 1934, clause (4) of section 3 of the Railways Act, 1890, the establishment of a contractor who directly or indirectly employs workmen in connection with the execution of a contract to which he is a party and includes the premises in which, or the site at which, any process connected with such execution is carried and it also includes the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry. It may be pointed out that clause (ii) of section 2 of the Payment of Wages Act, 1934, has very wide definition as it provides that it means any‑‑ (a) tramway or motor omnibus service; (b) dock, wharf or jetty; (c) inland steam‑vessel; (d) mine, quarry or oil‑field; (e) plantation; (f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale; (g) establishment of a contractor who, directly or indirectly, employs persons to do any skilled or unskilled, manual or clerical labour for hire or reward in connection with the execution of a contract to which, he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on.

22. It may be noticed that the definition of "commercial establishment" given 'i clause (b) quoted hereinabove is not pertinent for the purpose of determining the controversy in issue and, therefore, it needs not be dealt with. However, in the definition of the term "industrial establishment", the establishment of a person, who directly or indirectly, employs workmen in connection with any construction industry is included as pointed out hereinabove. The "construction industry" has been defined by clause (bb) of section 2 of the Standing Orders Ordinance, which was added by Act XXIII of 1922, and which reads as follows:‑‑ " 'Construction industry' means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, barber, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, guess work, or other work of construction as well as the preparation for, or laying the foundation of, any such w r or structure; "

23. These above definition of the term "construction industry" appears to be very wide. It would include the work of the appellant‑department. However, the above definition is to be read with sub‑clause (v) of clause (f) which defines the terms "industrial establishment" and which has been referred to hereinabove. But, in order to attract the application of the above sub‑clause (v), the establishment should be of a person who, directly or indirectly, employs workmen in connection with construction industry. The word "a person" has not been defined. It can have two meanings‑‑ (i) a human being; and (ii) a legal person. If I were to hold that it will have the latter meaning, in that event, the appellant department will be covered by the above definition of "industrial establishment". Since the provisions of the Standing Orders Ordinance are beneficial provisions for the working class, the meaning which would advance the object for which the above statute was enacted, be preferred. I am, therefore, inclined to hold that the word "a person" used in sub‑clause (v) of clause (f) of section 2 of the Standing Orders Ordinance will include a legal person. In this view of the matter, the provisions of the above statute are available to the respondents. The Courts below have, therefore, rightly held that upon expiry of the period of nine months as provided in clause (b) of paragraph I of the Schedule, the respondents had become permanent workmen. However, Mr. Tariq Mehmood has heavily relied upon the case of Province of Punjab and 3 others v. Gul Hassan and 33 others 1992 PLC 924, in which the respondents were working in work charge establishment of the Punjab Government Department. This Court allowed the appeal of the Province of the Punjab and set aside the judgment of the Courts below in favour of the employees on the ground that the Standing Orders Ordinance was not applicable as there were statutory rules containing in the West Pakistan Buildings and Roads Department Code, regulating the terms of the persons employed in the work‑charge establishments. The above case is distinguishable as I have already held that the appellant has not been able to produce any statutory rules dealing with the terms and conditions of the respondents.

24. Mr. Tariq Mehmood has placed a photo-stat copy of some manual, which deals with the basic principle regulating the appointment of temporary and work‑charge staff. It is not indicated whether the above manual has any statutory force or is it merely departmental instructions or policy matter. Be that as it may, para. 2 whereof indicates that there are two types of work‑charge staff; i.e. temporary nature and the other of permanent, nature. The above para. 2 reads as follows:‑‑ "(2) On the other hand the Work‑charged Staff employed on the works of the second class remain in service from year to year and on this account remain in continuous service right up to the age of 55 years or 60 years or even beyond; provided they are found physically fit and proficient. Till August, 1946 their claims to tenure in service, confirmation, benefits of leave. W.C. Contributory funds, pensionary rights, etc. etc.. were not accepted by Government. It was under the ex Government of India Letter No. Est. l6, dated 17th August, 1946, Para. 70 that these were accepted for the first time. "

25. There is nothing on record to indicate to which category the respondents belong. Additionally, tile above manual was not placed before the Courts below and, therefore, it would not be just and proper to rely upon the same at this stage without providing any opportunity to the other side to verify the authenticity and its legal status.

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 the 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 the 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 that 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 SCMR 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 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 or the executive machinery or the operation of the various organs of the sovereign 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 sovereign 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 Savings 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‑taw: held as follows:‑‑ "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, on ducting 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, educational 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 person's '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 ire the Ministers and Departments of the Central Government even in technically be described workmen would, by virtue of the exclusion contained in section 1(3) (b) of the I.R.O., he 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, (?) be said to be contributing towards facilitating the functioning of the 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, I 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.

29. The upshot of the above discussion is that the impugned judgments are unexceptionable, the above appeals are dismissed. However, there will be no order as to costs. M.B.A./E‑57/S Appeals dismissed.