1988 PLC 295 (PLP)

Bashir Ahmad for Respondent. Date of hearing‑ 10th May, 197

8. SHAFIUR RAHMAN, J.‑‑This review petition has been placed before us for hearing in accordance with Rule 5 of Chapter 3‑B, High Court Rules and Orders Volume V.

2. The facts are that Muhammad Mukhtar Khan, the respondent writ petitioner was employed by the petitioner as an apprentice under Apprenticeship Ordinance, 1962. The contracted period of apprenticeship was from 10‑4‑1971 to 9‑4‑1974. The period of apprenticeship so prescribed was not extended in accordance with law. Nevertheless the writ petitioner was allowed to continue to work in the establishment till the end of January 1975. His services were discontinued thereafter. He then moved a petition before the Junior Labour Court which by an order dated 16‑8‑1975 re‑instated him in service with back benefits treating him to be a workman after the expiry of the contracted period of apprenticeship. On appeal The Labour Court applying the formula "once an apprentice always in apprentice" denied him the relief holding that "the respondent by no stretch of imagination could become a permanent worker unless an order in writing had been passed". The writ petition came to be heard ex parte against the employer and the learned Judge in Chambers held that even if an apprentice the respondent was governed by the Standing Orders Ordinance and, therefore, his services cannot be terminated without reason therefore being disclosed and by an order in writing. The learned Judge when moved by the review application admitted it with the following observations: "Mr. M. Asadullah Siddiqi, Advocate has drawn my attention to section 2‑A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was not brought to my notice earlier, as the proceedings against the present petitioner were ex parte. It is contended that as there was no relationship of employer and employee between the parties the question of passing a termination order did not arise. Admit. Notice for an early date." We have heard the parties. It is conceded by the learned counsel for the petitioner seeking review of the order that the contracted period of apprenticeship came to an end on 9‑4‑1974 and as it was not extended in accordance with the statutory provisions applicable to the case, the provisions of Apprenticeship Ordinance is also not disputed that the respondent‑writ petitioner continued to be employed till at least end of January 1975. What is pleaded for claiming legal effacement of this period of service is that no written order was ever passed by the employer employing him, that the record of the employer was sealed by the auditors was not available and he continued of his own in the establishment of the petitioner. All these factors are rooted in the conduct of the employer himself. A statutory default cannot be pleaded by the employer to his own benefit. Similarly, if the employer had got its record sealed it could not over a long period justify the commission of illegality or its continuance. The employment after the period of apprenticeship was over cannot but be treated as one as a workman. There is no principle known to law that once an apprentice always an apprentice. This is against common sense, against the statutory provision made. in the Apprenticeship Ordinance. The employer cannot treat its own failure to deny to the respondent the right due to him under the law. A written order is not a sine qua non for establishing the relationship of the employer and the employee. It is a question of fact which can be proved independently of an order in writing. We, therefore, find that there is no legal error in the order which may require correction by review. The petition is, therefore, dismissed with costs. S.Q/S‑141/L Petition dismissed.