1992 PLP 1135 (PLC(CS))

3. I have heard Mr. Wasi Ahmed, learned representative for the appellant and Mr. Muhammad Saleem Khan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

4. The contention of Mr. Wasi Ahmed is that the respondent was appointed by order, dated 24-4-1988, which is Exh. 3/A, under which services were temporary and he was appointed to meet casual requirement and exigencies and his services were upto 15-12-1988, after expiry of which his services would stand automatically terminated. The respondent admits his signature upon this document Exh. 3/A but contends that he was permanent employee and that two persons junior to him namely Sultan Mahmood and Yaseen Bhatti were still in service. The statement of the respondent that two persons junior to him were still in service has not been challenged in his cross examination nor has specifically been denied by Mr. Zaheeruddin Ansari, Factory Manager of the appellants. Mr. Zaheeruddin Ansari had admitted in the cross-examination that the applicant, during the service in the factory, used to work in the Male Department alongwith other permanent workmen and he had to perform the same duty and job as that of permanent workers and all the permanent workers were still working in the appellants company. He had admitted that the respondent refused to take full and final settlement.

5. The only question that requires consideration is whether the respondent was temporary worker or permanent worker. Admittedly West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 is applicable to the factory of the appellants. As such the terms and conditions of service of the employees of the appellants, including the respondent, would be governed by the aforesaid Ordinance. It is also not disputed that the respondent was a workman. Standing Order 1(c) classifies the workmen as (1) permanent, (2) probationers, (3) badlis, (4) temporary and (5) apprentices. It does not classify any workman employed on `contractual basis' for a particular period. A `temporary workman' is defined under Standing Order 1(a) to mean as under:- "A `temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months." "Permanent workman" is also defined under Standing Order 1(b) to mean:- "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 ................................................................................................... . We have to judge in the fight of Standing Order as to in which class of workers the respondent could be classified.

6. Apart from the mention in the letter of appointment that the respondent was being appointed to meet casual requirement and exigencies, there is no evidence to show, that the work which the respondent was doing was of temporary nature likely to last for. not more than nine months. Mr. Zaheeruddin has stated in the affidavit that on completion of `Export Order' the applicant become `surplus' and `redundant'. In other words he was retrenched because of being surplus. This contention is belied by the fact that two persons junior to the respondent were still working in the factory and, therefore, this retrenchment would also be in violation of Standing Order 13.

7. Admittedly no order in writing showing reason of termination of service of the respondent was passed under Standing Order 12(3). Mr. Wasi Ahmed, learned representative for the appellants, contends that clause (2) of Standing Order 12 would be applicable which dispenses with notice in case of the temporary workman. However the word used in clause (3) of Standing Order 12 is `workman' which will include all types of workmen including `temporary'. Therefore the order in writing as required under Standing Order 12(3) is necessary in the case of even temporary workmen.

8. Mr. Wasi Ahmed further contends, that as the order of appointment itself mentions the duration of service, therefore no separate order under Standing Order '?(3) was necessary. The order of appointment, no doubt, mentions that services of the respondent would stand dislocated on 15-12-1988, but it does not mention the reason for the termination, which is one of the basic requirement of an order under Standing Order 12(3). Such an order was more necessary in the case of respondent as according to Mr. Zaheeruddin Ansari his services were terminated because after completion of Export Order he had become surplus. Standing Order 12(3) requires the reason for the termination of services has to be explicitly stated in the termination order because in this clause a right is conferred upon the workman to seek redress under section 25-A, I.R.O., 1969. In the absence of any order in writing showing explicit reason for his termination of service the workman would not be in a position to effectively persue his remedy under section 25-A of I.R.O., 1969.

9. With regard o the contention of the appellants, that respondent was a' temporary employee because his appointment order so mentioned, reference may be made to the case of Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD .1980 Supreme Court

323. In that case their Lordships discussed the implication of words "likely to be" used under Standing Orders 1(b) and 1(e) and came to the conclusion that it will be the nature of work which will determine the status of workman. If the nature of work was temporary and for limited period then even if the workman worked for more than nine months he could not be considered as permanent workman. Section 3 of the Ordinance referred to by their Lordships is reproduced as under:- "

3. Enforcement of Standing Order --In every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this. Ordinance, be regulated in accordance with the Standing Orders." In the aforesaid case their Lordships therefore held that the employer purporting to appoint workmen on temporary basis cannot contract out his obligations under the Ordinance.

10. Considering all the facts discussed above I see no merits in this appeal which is, accordingly, dismissed.