1987 PLP 935 (PLC)

Twenty one persons employed on daily wages have filed applications for seeking directions to the effect that their appointment as daily wage workers has become permanent in view of the continuity of service and also be given the back benefits since the appointment in the respondent establishment.

2. Each worker has given the facts of the case similar to that of Safdar Hussain with different designations, date of appointment and period of service.

3. The case of Safdar Hussain, Feroze Shah Abid has proceeded in the Court. The evidence is recorded in these cases and it was the desire of the parties that the evidence should also be read in other cases when the point of law is basically the same. By the consent order, all the applications have been read and fixed for decision.

4. Mr. Safdar Hussain has made application that he was working with the respondent in the department of Power Equipment repair shop at Pakistan Steel Mills since 11-8-1983 as the daily wage worker. There was assurance by the respondent that he will be taken as regular worker as soon as there were vacancies.

5. Applicant worked with the respondent for 21 months and was not provided the benefits of permanent workman.

6. The grievance of the applicant is that the respondent appointed applicant always, freshly, to defeat their right of permanency.

7. Respondent also gave them assurance that they would be given the permanent jobs. But every three months the respondent has renewed the gate passes with one or two days interval.

8. Applicant also states that the job was of permanent nature and there is no such apprehension of the closing of the mill as t, deny the right of permanency to the workers who have put up long service.

9. The case of Muhammad Afzal, Feroze Shah, Abid and other applicants is basically the same except with the date of appointment and period they have worked.

10. Respondent has filed written statement and stated that application is barred by time. No cause of action has accrued to the applicants for filing of application. Applicant has not complied with provisions of section 25-A, IRO.

11. On the facts, it is contended that the various plants, complexes, departments, unit offices are spread over large area and numerous machines, plants, equipments etc. are operated day and night, as such there are occasions when casual or temporary work is required to be done. The workers are engaged for short duration for this kind of work and given the casual work.

12. It is also further explained that the gate passes are issued to the casual workers to enable them to enter in the concerned department. The respondent has denied that they were taken on permanent job.

13. All these applications have been consolidated. The evidence recorded in three matters of Safdar Hussain, Mohammad Afzal and Feroze Shah Abid is read in all cases due to common point of law. Similar is the version of the respondent that the evidence of the respondent be also read in all cases for the purpose. This was the consent order.

14. Each worker has given his designation and the date of employment in the separate application to which the Court has made reference. NAME DESIGNATION DATE OF APPOINTMENT PERIOD OF SERVICE

1. Safdar Hussain Rigger 11-8-83 21 months

2. Mohammad Afzal Mechanic (Fitter) 7-7-83 22 months

3. Feroze Shah Rigger 17-7-83 23 months

4. Manzoor Alam Fitter 2-8-83 22 months

5. Mohammad Yousuf Fitter 20-2-84 16 months

6. Fazal Ahmed Fitter 9-10-84 8 months

7. Khan Bahadur Fitter 15-3-84 15 months

8. Mohammad Hassan Rigger 1-3-84 15 months

9. Mian Gul Fitter 20-2-84 15 months 10.Mohammad Abid Fitter 21-2-84 15 months 11.2iaur Rehman Fitter 2-2-84 16 months 12.Syed Mohammad Hafiz X-Ray Welder 8-7-84 11 months

13. Abdur Rauf Rigger 1-8-83 22 months

14. Abdul Aziz Fitter 13-11-83 18 months 15.Syed Faqir Shah Rigger 1-8-83 22 months 16.Mohammad Ali Shah X-Ray Welder 23-10-83 19 months

17. Fajar Ali Fitter 1-8-83 22 months

18. Dost Mohammad Rigger 17-7-83 23 months

19. Mohammad Hanif Fitter 19-7-83 23 months 20.Ghulam Dastagir Fitter 4-7-83 23 months Following are the points for determination: (1) Whether the work was of permanent nature? (2) Whether they have worked for more than 183 days? (3) Whether they are entitled to be made as permanent employees under section 2 of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance? R E A S 0 N S:

1. The permanent workman is a workman who has been engaged on work of permanent nature likely to last more than 9 months and has satisfactorily completed probationary period of three months in the same or in other occupation in the Industrial or Commercial Establishment, including breaks due to sickness accident, leave, lockout, strike or un-voluntarily closure of the establishment and includes a badli who has been employed for continuous period of three months or for 183 days during any period of 12 consecutive months.

2. This is a definition of a permanent workman in the Standing Orders where there is classification of the workman namely permanent, probationary, badli, temporary, apprentice. Then the word daily rate wages has been further explained in Standing Order 12 which also defines in the following language: "No temporary workman, whether monthly rate, weekly rated, daily rated or piece rated and no probationer or badli shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment on his own accord".

3. The court also further refers to section 3 of the Standing Orders which defines that in every Industrial or Commercial Establishment the condition of employment of the workman and other accidental matters shall subject to other provisions of this ordinance be regulated in accordance with the Standing Orders. Section 5 further reads that the text of the Standing Orders shall be permanently posted and kept in legible condition by the employer in English and Urdu in the language understood by the majority of its workmen as special board to be maintained for the purpose at or near entrance through which majority of the workmen enter the Industrial or Commercial Establishment and in all departments where the workmen are employed.

4. Section 20 further reads that employer of the Industrial and Commercial Establishment shall personally be responsible for the proper and faithful observance of the Standing Orders, whether or not the workmen of such establishment are employed through contractors.

5. The word workman also defines means any person employed in any Industrial or Commercial Establishment to do any skilled or unskilled, manual or clerical work for hire or reward.

6. The question is whether the applicants are the workmen and were engaged on work of permanent nature, likely to last more than 9 months and satisfactorily completed probationary period of three months in the same or another occupation in the Industrial or Commercial Establishment.

7. In other words, to entitle themselves, to be permanent they have to satisfy the Court on these requirements. Respondent has contended that they were employed on the plants and they were issued the gate passes.

9. Applicants have contended that the work is of permanent nature in the Steel Mills in the section and they had worked for more than three months and also 183 days.

10. In the first place, respondent has not produced the appointment order .to show whether applicants were employed on daily wages, and what were the conditions attached to the terms of the employment whether daily wages, or probationary or in different cadre on, permanent.

11. IRO has nowhere prescribed different procedure except what is mentioned in the classified services of permanent probationary, apprentice, badli.

12. The Standing Orders observance therefore, in the issuance of appointment order apply to all the classified services given in the definition of section 2.

13. By this alone, the workmen should know, the duration of employment and the respondent, if wishes to terminate the services during probationary period, for non-satisfactory performance, the employee' also knows the exact position of his status according to the labour laws. Similarly the Court is of the view that if the word daily wages is used in the IRO, the appointment order as required under B Standing Orders should also be the mandatory requirement because the Standing Orders observance is also responsibility of the employer.

14. In the absence therefore of the appointment order and the non-observance of the Standing Orders, in this case, the Court is of the view that if the respondents have contended that they were employed for temporary or casual work, unless there is express mention in the appointment order, on what plant or complex the employees worked. the respondent has not produced 'the satisfactory evidence.

15. The Court has also further examined the evidence of the Deputy Manager Administration who himself is not possessed of the accurate knowledge what casual or temporary work was to be done by the workmen except he has stated that they worked since 1983. But that is also he had learnt from the officer incharge fir. Imtiaz Ahmed Khan who is also not examined in the Court to show by documentary record or the register of attendance or by the roll of salaries that the particular employee has drawn the pay showing the length of service.

16. If this position is admitted from statement, that they have worked for more than 183 days in a year but shown that they have worked with intervals. At the same time they have stated that they continued to work on the same plant in the year and succeeding year, the next question is whether they have acquired the right of permanency.

17. If the Court holds that the work in Steel Mill is of permanent nature to last more than 9 months, the second question will arise, whether the period of 3 months, they have worked is continuous or the period of service counting from 1983 is calculated, first there is interval and there is again fresh appointment. No order of appointment, they have produced, that their appointment will be subject to the probationary period, for example they have completed period of probation first and have worked for more, than 3 months and their services are terminated.

18. If the case is brought within the definition of section 2 it appears that this right matures for entitlement, firstly the applicants have to show that the work is of permanent nature and secondly they have to show that they have satisfactorily completed period of probation. If there is no appointment order and they have admitted C that they were taken on daily wages basis, unless, the period of probation has expressly mentioned. The right of permanency as per definition cannot be claimed as of right if there is interval. There is no presumption of permanency in law.

19. In the present case the facts are all together distinguishable. It is not the case in their appointment that they were appointed, for particular duration, and not taken up after 3 months and therefore they can come and say that they have completed period of probation and yet not made permanent. Their case is differently placed that they were appointed on daily wages. Their services were terminated and again taken on the fresh employment. There is nothing in the labour law that the person cannot be appointed on daily wages. In the present case if the applicants have contended that their services were terminated and again taken on the same work by fresh invitation of application, the Court at the most can say that the respondent's policy of inviting every time fresh application of the. same person is against the policy of labour law, because by inviting application after D every 3 months of the same person defeats the provisions. The Court also is of the view that the daily wages workman is not unknown to the I. R.O. If the job is given to the same person upto 3 months there must be terms of the employment that their services will be probationary to mature their right of permanency, the Court cannot presume otherwise in the absence of the appointment order. For any contravention of the Standing Orders there is also penal provision, for example it is provided that if employer does any act in contravention of Standing Orders applicable to the Industrial or Commercial Establishment shall be punishable with fine which may extend to 500/ rupees. If the Standing Order provides that particular policy of appointment shall be followed in accordance with the Standing Order, then any policy contrary to the provisions of Standing Order if in conflict to the labour law becomes questionable. But due to the contravention of Standing Orders, as it is stated that no appointment order was issued to show the terms of employment. There is no E presumption of permanency of the status in the job. The permanent job is to be followed in accordance with the procedure of section 2 as provided in section 2 of the Standing Orders. The Court has also further referred the provisions of section 3 and section

4. It is provided that in every Industrial or Commercial Establishment, the condition of the employment of workmen and other incidental matters, shall subject to other provisions of this ordinance, be regulated, in accordance with the Standing Orders. Section 4 reads that Standing Orders may be modified by means of collective agreement shall not have the effect of taking away or diminishing any right or benefit available to the workman under the provision of the Schedule.

20. In context of this, Standing Order 3 and 4, the Court is of the view that the applicants have not produced any collective agreement of CBA and the management to show that such was the understanding that the daily wages workers if they have put up long service can be absorbed. Secondly the right of the workmen, is not infringed when there is agreement with the C.B.A. there is a provision in the Ordinance itself that the employer is within jurisdiction to appoint workman on daily wages. The only difficulty of the applicants is that F in the policy of the management in terminating services after every 3 months and again inviting application of the same persons, the right of permanency is to be presumed, the Court is of the view that there is no presumption. The worker on daily wages if recognized by I.R.O. remains daily wage worker. The post of permanent becomes permanent when a person is appointed on probation and despite satisfactory performance not taken up and becomes permanent. Permanent post is always filled against vacancies. Further if the probationer's definition is examined it will appear that probation also fills the provisional employment. The distinction therefore of the probationer employment and the daily wage employment is wide enough in the Court's opinion. For example if a person is appointed on probation and completes three months and yet not taken up becomes permanent. In the case of daily wage if he is daily wage worker, is recognized by law he becomes daily wage worker because there is no probation. In all the service whether the civil service or, in the labour law it appears that probation is not in a different context. If definition of section 2(g) Standing Order further is looked the definition of each workman, is given namely permanent, probationer, badli, temporary and apprentice. The definition of permanent workman requires condition of the work of permanent nature lasting for more than nine months and satisfactory completion of probationary period of three months, in other words it should be expressly mentioned in the appointment order that he is to undergo I probationary period. In the Court's opinion the probationary period has a legal significance that is, this is a condition attached that a particular person will work to the satisfaction and then alone he enjoys the right of permanency whereas in the daily wage working, he is ordinary daily wage worker and there is no probation attached. Similarly the time given of three months or further 183 days is also placed to those workers who are badlies. The definition of badli is given separately in the standing order. The definition of probationer fills a permanent vacancy. Badli is appointed in the post of permanent workman or probationer who is temporarily absent. With this definition in view the Standing Order appears to classify the workman in a different categorization with a different condition attached. The question, if it is contested that a worker has put up more than three months period, by this alone it cannot change status. He remains daily wage worker if law also recognize the daily working in Standing Order 12 where the word daily wage has also separately given the meaning. The Court further is of the view that in the organization like Steel Mill, the financial aspect is also the main requirement, where by keeping all the persons as permanent, the organization, which is for the national interest whether can bear the financial burden due to permanent employment because each organization has got its own policy of recruitment which of course the rights of the workers are safeguarded to the extent of removal or termination only within the legal bounds of the Industrial law. In the result if all the applicants have filed application showing, the number of days having worked as per statement produced by the representative Mr. Khalid which has remained undisputed. If the length of service is counted, all, that the Court can recommend that their length of service be considered, in the terms of seniority with preference, whenever the permanent vacancy falls. The Court is also of this view that this will be discretionary, by the management but the length of service must be taken into consideration if the employer has placed the worker on daily wages of the same persons, although the daily wage working was the discretionary for the employer to employ any person, if it is found involving the skill in a particular section of the employee. There is no vested right of permanency as the applicants have claimed that by long service they must be made permanent. The Court has already referred that if there would have been CBA agreement with the management then there was a different question of the acquisition of the right for permanent titlement through mutual consent of both the employer and the worker. Besides if it is contended that the purpose of lying down Standing Order is to regulate in respect of certain matters conditions of the service of workman in industrial organisation, therefore the absence of appointment order presumes that the worker having put up service for more than 3 months is presumed to be permanent, the Court is of this view that the infringement of the Standing Order is a different cause of action. But the terms and conditions are to be read from the appointment order. In the Court's opinion it cannot be presumed due to the absence of appointment order that he is permanent. Reference is made to the decision of 1982 PLC page 436' on the point of violation of Standing Order. Applicants representative has also referred to number of citations in this context. Court has referred these judicial decisions and found that all the decisions are given on particular facts which are in different context. There is one decision of the Presiding Officer in 1977 P L C 310 to show that if there is no appointment order with the terms and conditions, the employee is said to be permanent due to continuity of service. This Court has different views from the views of other Presiding Officer. So in view of the decision referred 1977 P L C 310, 1984 PLC 1185, 1984 P L C 812, P L D 1982 S C (A J & K) 76, 1983 P L C 262, 1982 P L C 132, 1982 P L C 307, 1982 P L C 436, 1984 P L C 1430, 1984 P L C 378, 1984 P L C 197, 1980 P L C 353, the facts are distinguishable on the different principles involve. In the present case the applicants are employed on daily wages purely which has also the separate status under Standing Order 12 as a daily rate employee. Applications are allowed only to the extent that they cannot claim as a right of permanency in the facts as contended. But due to long service it is discretion for the Steel Mill management to give preference. The case of Shakeel Ahmed is also on the same points. When the matter was fixed for arguments it was the desire of Mr. Khalid that the same be decided on the identical question of law. Mr. Shakeel has also admitted that he was daily wage worker. He was called for interview. Nobody was selected. He was given the assurance that he will be made permanent. He has also not shown to the Court who were the new persons appointed without interview. However the point of daily wage working is basically the same. Court has discussed this aspect. Mr. Mansoor Alam has also brought certain objections, which should also be disposed of. The first objection is that notice was not served under section 25-A IRO. This objection taken in the written statement has not been made expressly clear whether notice was not served or section 25-A application is not maintainable due to non-compliance of certain requirements such as the cause of action. The Court has examined this aspect and found that registered receipt has been produced by the applicant as in the case of Safdar Hussain which is the main case for decision. It follows that the notice of grievance was sent which was presumed to have been communicated through postal communication The contention of the respondent is not accepted for being vague, indecisive in the written statement regarding the notice of grievance Mr. Mansoor Alam has also further touched the points that 183 days period of working applies in the case of badli and there is word probation used in Standing Orders. Section 2(g) where there is classification of the workman given. The contention of Mr. Man soor Alam for the Steel Mill is correct that word probation is used where the worker has completed three months continuously. The word "satisfactory of completion of probationary period of three months in the same", it appears to the Court, has considerable legal significance which is not in the case of ordinary worker or daily wages which is also privilege of the employer to employ any workman on daily wages which is also recognised by law as daily wage worker. Under the provisions of the Industrial Relations Ordinance, it further appears that the employer cannot be placed on clog that he cannot employ the worker on daily wages which is his choice. The rules of permanency has been recognised by law in section 2(g) when these judicial requirements are complete. A permanent workman becomes workman when three months period is completed and also if there is satisfactory completion of probationary period which satisfaction is also to be gained by the employer. Of course the satisfaction of the completion of probationary period is also to be supported by the employer not on fanciful ground but on the basis of documentation such as that the worker was informed that his work was satisfactory or not satisfactory. In view of this matter therefore the Court has examined the contention of the applicants looking all the days they have worked and when the matter is taken into examination of the definition, it appears that continuous period of three months alone or 183 days applies to the workman, who is a badli. And then the definition of badli is given in the Standing Orders that he is appointed to the post of permanent workman or probationer who is temporarily absent. The applicants are facing difficulty to place the list of permanent post or probationer because the appointment order in the first place is not produced before the Court through the terms and conditions and therefore the presumption has been supported by the applicants of claiming permanency. In the view of the Court, the permanency cannot be presumed merely because there is no appointment order. But that the Ordinance appears to have placed as it is understood by this Court, it appears that for any violation of the Standing Order there is a remedy. Section 3 in that case governs the rules and condition that in every Industrial and Commercial Establishment conditions of the employment of workmen and other R incidental matter was subject to other provisions of this Ordinance, be regulated in accordance with the Standing Orders: If section 3 was not followed. No terms and conditions were brought to the notice of the applicants through appointment order. At the most there is non compliance seeking redress of the grievance in the manner as the IRO prescribes but the permanency is the right which can only be decided by the Court on the basis of the evidence to be shown that such terms and conditions were in the appointment order that their working will be subject to the probationary period to bring the case within the meaning of the definition of section 2(g). Mr. Mansoor Alam has referred to P L D 1980 of the Hon'ble Supreme Court page 323 to show that a workman cannot become permanent workman if the work for which he came to be employed expected to be finished within nine months but in fact completed after expiry of nine months. There is another decision also referred of 1983 P L C page 901 that if a workman is working against temporary vacancy he cannot acquire status of permanent workman irrespective of the period of service. In the present case in the first place of the permanent work is concerned the Court has taken view that the work in the Steel Mills is of permanent nature regardless of the fact that he was working on daily wages. The Court has not accepted the contention of the Steel Mill management. But the second requirement that 183 days or 3 months they have completed the Court again further clarifies that even if they have worked 183 days it was not the probationary period as appears in the definition of section 2(g). In the opening part of the definition of permanent workman where three months period which is continuous is qualified with the word probation in other words, probation is the main requirement of the service of being permanent in the jobs of different categories. The working days is not deciding factor irrespective he may continue to work for days together when the daily rate employee is) option of the employer. Every organisation has its own rules and policies and financial working. In view of the reasons discussed there Pare the Court has already touched this aspect that the case of these applicants can be considered only to this extent that they should be given preference as far as possible because they are the same persons who have been called every time for daily work, being trained on the particular specialised job. But the Court also finds that this is absolutely discretionary for the management to consider all the aspects of financial working to number of permanent vacancies. Application is partly allowed only to that extent. Reference is also made to this Court's decision in application No.125/84 Muhammad Shoaib v. Steel Mill. This case has its own facts. M.Y.H. / 952/ Lb. S. Application partly accepted.