2026 PLP 143 (PLC)

ABDUL RASOOL MEMON, CHAIRMAN.

The appellant has filed the instant appeal under Section 58 of the Industrial Relations Act, 2012 to assail the order dated 03-08-2022 passed by the learned Single Member, NIRC, Islamabad in petition bearing No. 4B(108)/2015 whereby the petition filed by the present respondents was allowed with the observations "that they have been in service of the predecessor and of respondents in regular service against permanent nature of job since their respective date of appointment as per para 2 of the petition and they had attained status of permanent workmen after three months of initial appointment. Therefore, the petition is allowed and the respondent is directed to consider them regularized w.e.f. the date of appointment as shown in para 2 of the petition within one month." Feeling aggrieved the appellant has filed the appeal in hand.

2. Precisely, the facts of the case as per grievance petition filed by the respondents, inter alia, are that they have been appointed on daily wages / ad hoc / work charge basis and since their appointment they have been performing their duties against permanent posts; that many juniors of the respondents have been absorbed / regularized permanently in the appellant establishment whereas, they have been ignored illegally and unlawfully; that they have submitted various departmental representations / applications for regularization but instead of regularizing them, they were compelled to accept offer of appointment under new terms and conditions (NCPG-5) and they were told by the management of appellant that they have become confirmed employee with effect from 01-09-2004; that under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 a workman with nine months service is treated as permanent one; that they have served the grievance notices to the respondents for their regularization but their grievances have not been redressed, hence, the respondents have filed grievance petition before the learned Single Member which was accepted in the terms stated in para supra.

3. The contentions of the learned counsel for the appellant are that before filing of grievance petition no grievance notice was served on the appellant against the mandatory requirement of law as such the grievance petition was not maintainable before the learned Single Member; that the appellant raised many objections on the maintainability of the grievance petition particularly in respect of grievance notice and that the grievance petition being time barred but the learned Single Member did not consider the objections at the time of passing of the impugned order, hence, the same is liable to be set aside on this score alone; that in earlier round of litigation the grievance petition was allowed vide order dated 12-10-2020 and the said order was challenged by the appellant before the appellate forum and the learned Full Bench of the Commission vide order dated 14-12-2021 remanded the grievance petition for deciding afresh on merits after recording the evidence; that the learned Single Member without touching the merits of the case has passed the impugned order without hearing the appellant; that the documents placed before the learned Single Member on behalf of the respondents were marked at the time of evidence and as per law marked documents have no sanctity in the eyes of law and are not admissible in evidence; that the impugned order has been passed without deciding the point of jurisdiction, hence, the same is against the settled principle of law, result of misreading and non-reading of the material available on record, hence, the same is liable to be set aside. In support of his contentions, learned counsel for the appellant has placed reliance on case law reported as 2007 TD Labour 27, 2018 SCMR 1181, Civil Appeal No.1432/2015 titled PTCL v. Azeem Kibria Bhatti and others and Writ Petition No. 2014/2017 titled Ikramullah v. PTCL.

4. Conversely, learned counsel appearing for the respondents has fully supported the impugned order by stating that the same is in accordance with law and has been passed after discussing the material available on record, hence, the same is liable to be maintained. The learned counsel has contended that the respondents since their appointments are performing duties regularly against permanent posts and by operation of law have become permanent employees of the appellant Company; that many juniors of the respondents have been regularized/absorbed permanently in PTCL, whereas, the respondents have been ignored illegally and unlawfully by the appellant Company which is against the prevailing labour laws and principle of natural justice; that the appellant instead treated the respondents as permanent employees compelled them to accept offer of appointment under new terms and conditions (NCPG); that the respondents served grievance notices upon the employer, which have not been honored, thus the respondents filed grievance petition; that the respondents are in service but the right of declaring them permanent employees have been denied by the appellant from the date of induction in service till date, therefore, the cause of action was /is recurring and no limitation run against such kind of cause of action; that the Superior Courts of Country in a number of cases directed the employers/establishments to regularize/ permanent the employees and the respondents are also entitled for extension of such benefits of the above said judgment. The learned counsel for the respondents has prayed that the appeal may be dismissed and the impugned order may be maintained. The learned counsel for the respondents has relied on case law i.e. 2018 SCMR 1181, 2016 PLC 428, 2016 PLC 491 and 2013 SCMR 1547.

5. Heard the learned counsel for the parties and record has been perused.

6. The status of the respondents being workmen has not been disputed. The respondents are continuously performing their duties in the appellant Company from different dates in the years 1992 to 1996 and they filed grievance petition in the year 2015 after serving grievance notices upon the employer. As their cause of action is recurring because they are allegedly continuously depriving from their right of regularization/permanency of service, thus their claim of regularization cannot be termed as time barred. The main thrust of the arguments of the appellant is that the respondents are not permanent employees of the appellant Company from the date of their initial appointments. It is evident that the services of the respondents are being utilized for span of years on permanent basis. Undisputedly, the respondents have been performing their duties in the appellant Company continuously for decades against the posts of permanent natures. The permanent workman has been defined by the legislature in Standing Orders 1(b), that he should be engaged in work of a permanent nature likely to continue for last more than nine months. For better appreciation of the classification of workman it would be appropriate that the permanent workmen and contract workers as provided in Standing order (1) may reproduced below:-- "

1. Classification of Workmen: (a) Workmen shall be classified as- (1) permanent; (2) probationers; (3) badlis; (4) temporary: (5) apprentices: (6) [contract worker]. (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, 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, 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]." ............ "(g) a contract worker means a workman who works on contract basis for a specific period of remuneration to be calculated on piece rate basis.

9. There is practically no dispute between the parties regarding the services of the respondents, being rendered by them however, the claim of the appellant is that the services of the respondents cannot be considered as permanent from the date of initial appointment as claimed by the respondents. It is admitted fact that the respondents are performing their duties against the work of permanent nature which remained continue for indefinite period and their period of employment is for a much longer period than the one which entitled them to be classified as permanent workmen under the Standing Orders, altogether different from the classification of contract workers as referred herein clause g, of the Standing Order No.

1. The posts against which the respondents are working have not been restricted to any period or duration, hence, for all intents and purposes are permanent posts. It is constant view of the Superior Courts that an employee serving for more than nine months against a regular post acquires the status of permanent employee. The trend of the Superior Courts is very much clear regarding the issue of regularization/ permanency in the employment i.e. under labour law, where any employee/worker performing duty for more than nine months would be entitled to be regularized. The Honorable Supreme Court in a case titled as Board of Intermediate and Second Education, Multan and others v. Muhammad Sajid and others reported 2019 PLC (C.S.) 539, regarding employment has laid down the principle as follow:- It is an admitted position that the respondents before us have been working with the petitioner-Board since long, however, in their clumsy attempt to break the continuity of their service, the petitioner has been employing them for 89 days only, and has been re-hiring them for the next 89 days, and thus continued to avail their service for a long period by creating artificial breaks in their service period. The fact that they have in fact, continuously served the petitioner for a long period of time, albeit the breaks created by the petitioner, as noted above, clearly shows that they have been performing job of permanent nature and have not been serving on casual posts. Admittedly, similarly placed employees of BISC Rawalpindi, have been regularized in pursuance of the judgment of the High Court, and upheld by this Court, as noted above. The learned counsel for the petitioner has not been able to highlight a single feature distinguishing the nature of the respondents, job/employment, disentitling them from regularization. The respondents in the circumstances, were rightly found eligible and entitled for regularization of their service with the petitioner-Board , and have rightly been so ordered through the impugned judgments and we do not find any justification for interfering therewith. The Petitions in the circumstances are dismissed." The Honorable Supreme Court of Pakistan in a case titled Board of Intermediate and Secondary Education, DG Khan v. Muhammad Altaf and others reported as 2019 PLC (C.S.) 647 has held that:-

2. The respondents were employed by the petitioner-Board, they hove been working as Drivers, Clerks, Naib Qasids and Security Guards, for a considerable period of time, on daily wages. Some of them have been so working since the year 1996. However, their employment contracts were terminated after every 89 days and were resumed a day thereafter. All of them have certainly served the petitioner-Board for not less than nine months, however with artificial breaks, as noted above, this was done to break the continuity of their service with mala fide intent to avoid their regularization. The respondents, despite the fact that their services had matured and were under the law required to be regularized, and instead of doing so, as noted in the judgment of the learned Single Judge, contemplated to make fresh appointments through advertisement, which prompted the respondents to file the writ petition which culminated into the impugned judgment.

3. We in the circumstances as noted above, do not find any lacuna in impugned judgment, legal or otherwise, and find no justification for interfering with the same. The petition is therefore dismissed." The Honorable Supreme Court of Pakistan in reported judgment i.e. 2018 SCMR 325 (Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others) has held that:- "...Doily wage employees... Regularization in service...All the respondents had served the petitioner Board for not less than nine months, however with artificial breaks, to break the continuity of their service with mala fide intent to ovoid their regularization ...Despite the fact that services of respondents had matured and they were under the law required to be regularized, the petitioner Board contemplated to make fresh appointments through advertisement... High Court had rightly regularized the services of the respondents with the petitioner Board....Petition for leave to appeal was dismissed accordingly." In another reported judgment titled Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore reported as 1999 SCMR 2557 has held as under:- "(a) West Pakistan Commercial and Industrial (Standing Orders) Ordinance, (VI of 1968)....S.O.1 (b)(c)...Evidence on record had shown that post against which appointment was made was of permanent nature though in appointment letter some was described as purely temporary and that period of employment continued beyond period of nine months.... Employees in circumstances would be deemed to be permanent workman within definition given in S.O.1(b) of West Pakistan Commercial and Industrial (Standing Orders) Ordinance, 1968." The Honorable Supreme Court of Pakistan in another case reported as 2018 SCMR 1181 titled as State Oil Company Limited v. Bakht Siddique has held as follow: - "As regard the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretense and on that pretense to outsource the employment of the posts which are permanent in nature and it is on the record that the respondents have been in service starting from as far back as 1984. This all seems to be a sham or pretense and therefore, it being not a case of any disputed fact and no evidence was required to be recorded. Moreover, we have seen from the order under challenged that in such like cases where the orders have been passed by the Labour Tribunals, the employees, even those who were under the contractors alleged employment, have been regularized by the petitioner. And thus keeping in view the rule of parity and equality, all the respondents even if considered to be the employees of the contractor, which is not correct, they having been performing duties of permanent nature should have been regularized However, at this stage, we would like to observe that the employment of the respondents shall be regularized with effect from the date when they approached the learned High Court through the Constitutional petition but for their pensionary benefit and other long terms benefits, if any, available under the labour law, they would be entitled from the date when they have joined the service of the petitioner" The Honorable Supreme Court in another case titled as Abdul Ghafoor and others v. The President National Bank of Pakistan and others reported 2018 SCMR 157 has set aside the impugned order and held as below: -

7. In the present case also, the respondent bank cannot be allowed to persist in its similar practice and machination to exploit its workers and to defeat the spirit and purpose of law and the judgments of this Court, by describing the employment of the petitioners as a contract and calling such workers as "contractors" instead of "contract employment" and "contract employees . As the petitioners for all intents and purposed were engaged/ employed by the respondent bank for manual jobs and were being paid salary/compensation for the services they rendered for the respondent-bank, on monthly basis and from year to year personally/manually, and having so served for more than one year, on several 11 months stints, have earned entitlement for regularization of their services with the respondent-bank

8. In the circumstances, we would convert this petition into an appeal and allow the same by setting-aside the impugned judgment, and direct the respondent bank to regularize the services of the petitioners as their permanent employees." The Honorable Apex Court in a case titled as Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others reported as 2018 SCMR 1405, on the issue of regularization has held as follow:-

8. Turning to the instant case, the respondents-employees have been working with the petitioner-BISEs for a long period of time ranging between 3 to 12 years, as mentioned in the impugned judgments by the learned High Court Though they were initially appointed a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days. It seems that the motive behind such artificial break was to avoid regularization of their services on the pretext that they were not continuously in service. Since the respondents were in service for long time, it clearly shows that the posts they were occupying were permanent in nature and not casual or temporary. It further indicates that the services of respondents were not only required but also beneficial to the department and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities. Nothing has been placed on the record that may show anything to the contrary.-

10. In view of the above, we are of the view that the learned High Court has rightly directed the petitioner-BISEs/Government of Punjab to regularize the services of respondent-employees. Thus, no case for interference in the impugned judgments is made out. These petitions are accordingly dismissed and leave to appeal is refused." Similar view has been taken by the Honorable Apex Court in a case titled Province of Punjab through Secretary Communication and Works Department v. Ahmad Hussain reported as 2013 SCMR 1547. The honorable Court has held that:- "There are so many other such like persons who are working in different organizations of Punjab building Department for the last so many years but as work-charged employees, although the nature of job assigned to them has been continuing for more than the period of 9 months in terms of paragraph 1(b) of the Schedule attached to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which provides as under: - "(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 moths" Thus it is held that service of respondent shall be governed by Standing Orders Ordinance, 1968 and he shall be considered permanent employee, as he is performing his duties continuously for more than 9 months since 1998 and the learned High Court has rightly issued writ in his favour". The Honorable Lahore High Court (Multan Bench) in a case reported as 2018 PLC 224 titled as Tehsil Municipal Administration v. Punjab Labour Appellate Tribunal has observed as follow: - "

8. Even otherwise, a finding of fact having been recorded by the Labour Court and upheld by the Punjab Labour Appellate Tribunal on the basis of reliable evidence that the petitioners are working against posts of permanent nature for a continuous period of more than nine months entitles them to regularization, cannot be interfered while dealing with the constitutional jurisdiction of this Court without there being any illegality, jurisdictional defect or perversity, which is not forthcoming on the record Besides the regularization of such an employee is admissible under, the Industrial Relations Ordinance/Act, hence the findings of the Courts below are upheld.

10. There is no denial to the fact that the respondent was rendering service continuously for the last several years thus as per Order 1(b) of the Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968, attained the status of permanent workmen and in the circumstances, it hardly need any emphasis to say that the work performed by the respondent is surely of a permanent nature.

11. In view of what has been discussed above, and on the strength of the above referred case law, we find no substance in the appeal, however, the appeal is disposed of with some modification in the impugned order in the light of the judgment of the Hon'ble Supreme Court of Pakistan, reported as 2018 SCMR 1181 referred herein above, it is held that the services of the respondents may be regularized from the date of approaching this Commission by filing grievance petition and they will be entitled for pensionary benefits and other long terms benefits, if any, available under the law, from the dates when they have joined the service of the appellant. With these observations the appeal is disposed of. The file be consigned to record room after due completions. MQ/2/NIRC Order accordingly.