2000 PLP 879 (SCMR)

IRSHAD HASAN KHAN, C J.

Through this common judgment, we propose to dispose of the above 65 appeals arising out of a common judgment dated 5-8-1997 of the Peshawar High Court passed in various Writ Petitions involving a common question of law.

2. The facts of the case are succinctly stated in paragraphs 2 and 3 of the leave granting order, which read as under; "

2. The respondents in the above petitions were employed by the petitioners on work-charged basis, in different capacities in their project known as `Mardan SCARP' during the year 1986. On completion of the said project, the respondents were declared surplus and were, accordingly, discharged from service with effect from 26-7-1992 (afternoon). The respondents first approached the Service Tribunal for redress against the termination of their services but their petitions were returned as the learned Tribunal found that it had no jurisdiction in the matter. The respondents then filed a grievance petition under section 25-A of the Industrial Relations Ordinance (I.R.O.) before the Laboure Court which was accepted. The learned Labour Court found that the respondents were permanent workers of the petitioners having worked continuously for about 12 years and therefore, their termination from service offended against the provision " of section 12(3) of the Standing Orders Ordinance The learned Labour Court, accordingly, after setting aside their termination from service, directed their reinstatement in service with all back benefits.

3. The above decision of Labour Court was challenged in appeals before the learned Labour Appellate Tribunal by the petitioners but without any success. The writ petitions filed by the petitioners before the Peshawar High Court to challenge the orders of Labour Court and the Labour Appellate Tribunal also failed giving rise to the present petitions.

3. Leave was granted to consider whether the respondents in the above appeals were appointed in connection with a specified project and, if so, the length of the period of employment by itself could be made the ground for treating them as permanent employees.

4. Mr.Gul Zarin Kiani, learned counsel for the appellants reiterated the contention that the respondents having been appointed in connection with a specific project, their employment came to an end with the completion of the said project. In support of his contention, he placed reliance on the following decisions; (1) Pakistan International Airlines v. Sindh Labour Court No.5 and others (PLD 1980 SC 323). (2) Muhammad Yaqoob v. The Punjab Labour Court No. l and 5 others (1990 SCMR 1539). (3) Deputy Director, Administration and Coordination, Faisalabad Development Authority and another v. Muhammad Amin and others (1995 SCMR 21). (4) Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557).

5. Mr.Khushdil Khan, learned ASC for the respondents in the above appeals and for Sheikh Ghani appellant in Civil Appeal No.738 of 1998 contended that the respondents including Sheikh Ghani appellant in Civil Appeal No.738 of 1998 though employed as work-charged employees but in view of the period of their employment they were for all intents and purposes "permanent workmen" as has been defined in S.O.1(b) of the West Pakistan Industrial acid Commercial Employment (Standing Orders) Ordinance, 1968. (Hereinafter referred to as the Ordinance). He further contended that neither the appointments orders of the above -respondents disclosed that they were hired for a specific project nor the above plea was taken in their termination orders. It was contended that the mere fact that all of them were working in different capacities in the project of WAPDA known as "Mardan Scarp" would not ipso facto lead to the conclusion that they were engaged only for the above project. He has placed reliance on the following judgments; (i) Project Director, Ghotki (WAPDA) v. Commissioner Workmen's Compensation and Authority, under the Payment of Wages Act, Sukkur and Jacobabad at Sukkur and others (PILD 1992 SC 451). (ii) Executive Engineer, Central Civil Division, Pak.P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 SC 610). (iii) Divisional Engineer Phones; Phones Division, Sukkur and another v. Muhammad Shahid (1999 SCMR 1526). 5-A. We have heard the learned counsel for the parties and carefully scanned the evidence available on record as well as the files requisitioned from the Courts below. The learned counsel for the respondents was unable to state that any of the respondents in the grievance petition took the plea that they were not working in the Mardan Scarp Project. The WAPDA in its Writ Petition No.843 of 1996 and other connected Writ Petitions filed before the Peshawar High Court challenging the judgment-dated 7-1-1996 of the Presiding Officer, Labour Court, Mardan and that of the Chairman, Labour Appellate Tribunal dated 7-7-1996 stated in unequivocal terms that Mardan Scarp Project has expired on 30-6-1992 and, therefore, the surplus staff employed on work-charged basis was to be dispensed with as their services were no longer required in view of the completion of the project. The basic question which needs consideration is whether the respondents admittedly having worked for a number of years for the project of Mardan Scarp on work-charged basis could be treated as permanent employees under the provisions of the Ordinance, or any other law for the time being in force?

6. Before examining the contentions of the learned counsel for the parties, it is necessary to have a broad acquaintance with the initiation and completion of Mardan Scarp project. In this regard the statement of R.W.1 Mohammad Yousaf, Deputy Director (Adorn.), Office of the Chief Engineer, Swabi Scarp Project would be instructive, the relevant portion whereof reads as under : "I produce the Authority letter of Chief Engineer, Swabi Scarp in my name in this case, Ex.RW-1/1. The Project Mardan Scarp was started in 1979-80. It was first for a period lasting till 1987 and the period was extended finally till 30-6-1992. The Project was being financed by the World Bank. M/s. HARZA NESPAK USA were the Consultant of the Project. All the petitioners were appointed in the Project on work-charged basis as Survey Coolies. They used to be paid by the above Consultant Firm. Out of the petitioners, 52 were working with the above Consultant and 9 were working under the Project Director, Mardan Scarp, Lower formation. As for the appointment of the petitioners, 19 were appointed directly by the Consultant and the remaining 33 were appointed by the Project Authorities on the recommendation of the above Consultant: The remaining nine were directly appointed by the Authorities of the Project. The appointment orders of the petitioners contained the conditions of dismissal without assigning any reasons. The Scarp was wound up on 30-6-1992. The contract with the World Bank was also finished in the same-year. The World Bank loan also so finished with the above Project. I produce a letter No.P0/2161 63/27 dated 15-4-1992 of M/s. HARZA NESPAK informing the Chief Engineer, Mardan that the employees mentioning in the annexure with the letter were no longer required after 30-6-1992 which letter has referred to in the termination orders of the petitioners, Copy Ex-RW-1/2. The case was then referred to WAPDA Authority, and the Authority decided that their services may be dispensed with." A bare perusal of the above statement would show that the respondents were hired for the work in connection with the construction of Mardan Scarp Project. Some of the respondents present in Court have also conceded that throughout their employment they were working for Mardan Scarp Project. It was also, conceded that Mardan Scarp Project has been completed long ago. The above statement also finds support from the grievance notice under section 25A(1) of the I.R.O. filed by Khanimullah, one of the respondents herein, wherein in paragraph 1 it is, specifically stated that the above respondent was working in connection with Mardan Scarp Project. The above paragraph reads as follows : Paragraph 3 of the Writ Petition No.843 of 1996 filed by the WAPDA also contained the following averment; "

3. That the said Project has expired on 30-6-1992 and therefore, the surplus staff employed on work-charged basis was to be dispensed with as their services were no longer required in view of the completion of the Project." Mr.Khushdil Khan, learned ASC candidly made a statement at the bar that no written reply was filed by the respondents in the above Writ Petition or the connected petitions.

7. It is true, that the appointment letters of the respondents expressly mention that they were work-charged employees and the specific purpose for which they were employed has not been mentioned therein. Nevertheless, under subsection (5) of section 25A of the I.R.O., in adjudicating and determining a grievance under subsection (4) thereof, the Labour Court is required to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. The words "shall go into all the facts of the case" were interpreted in the case of Crescent Jute- Products Ltd., Jaranwala v. Muhammad Yaqub etc. (PLD 1978 SC 207), wherein it was held that the above words clearly signify that the Labour Court has full and complete powers to enter even into questions of facts and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. A double check has been provided, one in the form of domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Labour Court itself.

8. Section 2(g) of the Ordinance, defines "Standing Orders" to mean the orders contained in the Schedule, read with such modifications, if any, as may be made in pursuance of the provisions of section

4. The latter section provides for modification of Standing Orders in the manner laid down therein. The Schedule of Standing Orders framed under section 2(g) of the Ordinance classify workmen under S.O.1, as follows;

(a) Workmen shall be classified as -- (1) permanent, (2) probationers,. . (3) badlis, (4) temporary, (5) apprentices. (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 months. (c) A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post. (d) A "badli" is a workman who is appointed in the post of a permanent workman or probationer, who is temporarily absent. (e) A "temporary workman" is a workman who has been engaged for work which is of an essentially temporary nature like to be finished within a period not exceeding nine months. (f) An "apprentice" is a person who is an apprentice within the meaning of the Apprenticeship Ordinance, 1962. A bare reading of the above definitions would show that it is the nature of work on which a workman is employed that would determine whether the workman is a permanent or temporary employee and not the appointment letter simpliciter. It is true that if the work is of a permanent nature and is likely to last for a period of more than nine months on successful completion of probationary period of three months in the same or another occupation a workman will be deemed to be a permanent worker. If the nature of work is temporary and is likely to be finished within a period of nine months, a workman employed on such work shall be deemed to be a temporary workman. To the same effect is the judgment of this Court in the case of Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557). In the case of Pakistan International Airlines v. Sindh Labour Court No.5 and others (PLD 1980 SC 323), while. interpreting the provision of Standing Order 1(b) & (e) it was clarified that a workman cannot become a permanent workman if work for which he came to be employed expected to be finished within nine months but in fact completed after nine months. In the case of Muhammad Yaqoob v. The Punjab Labour Court No. l and 5 others (1.990 SCMR 1539) this Court observed that a `permanent workman' has been defined in the Standing Orders Ordinance by reference to the nature of the-work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman. The length of the period of employment by itself has not been made the ground or a test for determining the nature of the work. (Underlining is by way of emphasis). The case .of Project Director, Ghotki (WAPDA) v. Commissioner Workmen's Compensation and Authority, under the Payment of Wages Act, Sukkur and Jacobabad at Sukkur and others (PLD 1992 SC 451) relied upon by Mr.Khushdil Khan, learned counsel for the respondents has no relevance to the facts and circumstances of the present case. In the above case, it was held that in the position of work-charged establishment under the Authority the employees would be treated as in the service of Pakistan but not a civil servant for the purpose of the Service Tribunals Act. The case of Executive Engineer, Central Civil Division, Pak.P.W.D., Quetta 'v. Abdul Aziz and others (PLD 1996 SC 610) relied upon by the learned counsel for the respondents again does not lend support to his case. In the precedent case as well it was held that under para. 1 clause (b) and section 2(i) of the Schedule to the Ordinance the period of employment is not the sole determining factor. It was held that if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon expiry of the period of nine months mentioned in terms of Schedule para. l(b) of the Ordinance provided he is covered by the definition of term "worker" as given in section 2(i) of the Ordinance. In the instant case, the work for which the respondents were engaged was not of permanent nature. They were retained in service only for a specific project. Therefore, the mere length of service for which they were engaged in the employment of the appellant would not be a relevant factor in determining the nature of their employment. Mr.Khushdil Khan next, relied upon the case of Divisional Engineer, Phones, Phones Division, Sukkur and another v. Muhammad Shahid (1999 SCMR 1526). The above decision again is of no help to the respondents. In the above case, it was held that the employees appointed by Pakistan Telecommunication Corporation after date of its inception under Pakistan Telecommunication Corporation Ordinance (XVI of 1990) shall be deemed to be employees of Pakistan Telecommunication Corporation and governed in accordance with terms and conditions of their appointment. The term "work-charged employee" has been defined in the LAW LEXICON by Venkataramaiya is as follows:

"Work-charged employee".-The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes. But though the work-charged employees are denied these benefits; they are industrial workers and are entitled to the benefits of the provisions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servants like the other petitioners who are liable to be thrown out of employment without any kind of compensatory benefits."

9. It would, thus, be seen that permanent workmen are those workmen who are engaged on work of permanent nature likely to last more than nine months and who have completed a probationary period of three months satisfactorily in any occupation in the relevant establishment. In the case in hand, the respondents were not engaged as permanent employees as defined in Standing Order 1(b) vide their appointment letters, they were employed on work-charged basis and their appointments were liable to be terminated at any time without 'assigning any reason whatsoever. Mere absence of the specified nature of the project for which they were employed, in employment letters of the respondents is of no consequence in determining their status, in- the facts and circumstances of -the present case. The impugned orders are based on misreading of material on record and misinterpretation of the Standing Orders as discussed above. After thorough scrutiny of the available material and relevant provisions of law, we are of the considered view that the respondents were employed on work-charged basis against a specific project, i.e. "Mardan Scarp". Therefore, on completion of work on the said project, their appointments were rightly terminated by the competent authority. In the result, all the appeals, except Civil Appeal No.738 of 1998, are accepted by setting aside the impugned orders of the High Court and the Courts below. Sheikh Ghani appellant in Civil Appeal No.738 of 1998 is also respondent in the above connected appeal No. 1273 of 1997. His grievance is that the Labour Court, as well as, the Labour Appellate Tribunal rightly allowed back benefits to him and the High Court was not right in setting aside the same vide the judgment impugned herein. Since the order of reinstatement passed by the Courts below in the case of all the respondents including the above appellant/respondent has been found to be without lawful authority and. of no legal effect, this appeal is liable to be dismissed. Order accordingly.

10. Before parting with the judgment, it may be observed that in the leave granting order dated 3-11-1997, the appellants were directed to deposit arrears of salaries of the respondents with the Registrar, Peshawar High Court. They were further directed to continue depositing the monthly salaries of the respondents every month before 10th of the following month until disposal of the appeals. It may be observed that the respondents were low-paid employees and they had also raised plea of discrimination made against them in the matter of continuation in employment qua other employees similarly placed, in that, the latter were retained in "Swabi Scarp Project' but their services were terminated. This plea also finds mention in the judgments of the Courts below. We are inclined to hold that no such discrimination should have been made consequent upon the completion of work of Mardan Scarp Project. The services of all such employees should have been terminated so that the senior employees in the said category could be retained in service against existing vacancies on the basis of 'last come first go'. Be that as it may, we are not inclined to re-open the issue at this belated stage. The ends of justice would be fully met if the salaries of the respondents deposited, with the Registrar of the Peshawar High Court pursuant to the leave granting order dated 3-11-1997 are paid to them forthwith under intimation to the Registrar of this Court. Order accordingly. With the above observations, Civil Appeals Nos.1258 to 1321 of 1997 are allowed and Civil Appeal No.738 of 1998 is dismissed. M.B.A./W-4/S Order accordingly.