1992 PLP 1055 (PLC)

Aggrieved by their termination of service, both the respondents invoked the jurisdiction of the Labour Court at Lahore by way of filing a grievance petition under section 25-A of the Industrial Relations Ordinance. Precisely, it was contended before the Labour Court that the respondents had become permanent employees because after the absorption of Zahid Hussain and Din Muhammad, their services were not terminated for 13 months and their names were included in the seniority list and thus, they were absorbed in the permanent cadre of the service of the petitioner-Corporation. The Labour Court after considering the appointment letters and the conditions laid therein, particularly, that the appointment was being made in place of the suspended employees rejected the application of both the respondents under section 25-A of the I.R.O. on the ground that the superstructure of right and liabilities of the respondents and the petitioner were governed by the appointment letter. There was no substance in the petitions of the respondents as their employment was purely temporary in nature. The Labour Court further observed that since the vacancies were not available, hence, the respondents could not be retained in service. Aggrieved by the dismissal of their grievance petitions vide order dated 15-12-1990 delivered by the Presiding Officer of the Labour Court, the respondents took appeals before the Labour Appellate Tribunal which were accepted vide order impugned and the same have been assailed by the petitioner/Corporation through these writ petitions. The Labour Appellate Tribunal held that since immediate action was not taken against the respondents soon after the absorption or reinstatement of the suspended employees, therefore, they would be deemed to have been absorbed permanently in the permanent service cadre of the petitioner/Corporation. It was further observed that Rule 11 of the House Building Finance Corporation Service Regulations, 1957 was inconsistent with section 42 of the House Building Finance Corporation Act, 1952 and, therefore, the service of an employees could not be terminated on the basis of one month's notice or on the payment of salary in lieu thereof. Before proceeding further, it will be advantageous to reproduce Rule 11 of the House Building Finance Corp. Regulation, 1957 which reads as under:- "The Corporation may dispense with the service of a permanent employee by giving three months' previous notice in writing without assigning any reason or in lieu thereof, a sum equivalent to his substantive pay for three months." In this context, the reproduction of section 42 of the House Building Finance Corporation Act, 1952 is also relevant which reads as under:- "(1) The Board may, with the previous sanction of the Federal Government, make regulations not inconsistent with this Act to provide for all matters for which provision is made .necessary or expedient for the purpose of giving effect to the provisions of this Act." Clause (j) of subsection (2) of section 42 of the Act of 1952 is reproduced here under:- (j) the recruitment of officers and staff of the Corporation, the terms and conditions of their service, the duties and conduct of such officers and staff and of the agents of the Corporation, the constitution and management of provident funds for such officers and staff and all matters connected with any of these things." In fact, before the Labour Appellate Tribunal, it was argued by the petitioner/Corporation that regardless of the temporary nature of the employment of the respondents, even the service of the permanent employees of the petitioner/Corporation could be dispensed with on the basis of three months' notice or on the payment of the salary in lieu thereof as envisaged under Rule 11 reproduced above. It was contended by the petitioner/Corporation that the respondents have no case and their continuation in service after the reinstatement of Zahid Hussain and Din Muhammad shall not change the character or nature of their employment which could be terminated on one month's notice or on tae payment of salary in lieu thereof. The Labour Appellate Tribunal, however; repelled these contentions by holding that Rule 11 was against the public policy and a permanent employee would not be thrown out from service under this Rule without assigning any reason because it also violated the Government Servants Rules which were also applicable. The learned Labour Appellate Tribunal further observed that since the names of the respondents were shown in the seniority list, therefore, they had acquired the status of permanent employees of the petitioner/Corporation and thus, their services could not be dispensed with. With the assistance of the learned counsel for the petitioner/ Corporation and the respondents, I have carefully perused the entire record and I have also heard the various contentions raised by both sides. The precise question falling for determination is what is the nature of the employment of the respondents. Admittedly, the nature of the employment was temporary and they were specifically recruited to fill in the vacancies falling vacant due to the suspension of Din Muhammad and Zahid Hussain. It is thus, obvious from the perusal of the appointment letters that the nature of -the service of the respondents with the petitioner/Corporation was contractual in nature and under the aforesaid terms and conditions of the contract, the service of the respondents could be terminated because they were governed by relationship of masters and servant. They had no guarantee in law to insist for remaining in service and they could not be trusted upon an unwilling employer. As far as the conflict between Rule 11 of the Regulations of 1957 and section 42 of the House Building Finance Corporation Act, 1952 is concerned, the findings of the Labour Appellate Tribunal, on this issue, are without any basis. Clause `J' of subsection (2) to Section 42 reproduced above clearly empowers the petitioner/Corporation to lay down the terms and conditions of service of its employees and, therefore, there was no legal or constitutional bar in the way of the Corporation to frame Rule 11 of the Regulations 1957 which provided the termination of service of the permanent employee on serving three months notice or the payment of the salary in lieu thereof without assigning any reason. The employees of a Corporation stand on a different footing from the employees of the Government. Prior to 1973 Constitution, the Government servant enjoyed Constitutional guarantee and after the promulgation of 1973 Constitution, the terms and conditions of Government servants are governed by the Civil Servants Act framed by the Provinces and the Federal Governments and, therefore, the nature of the service of the employees of the petitioner/Corporation cannot be treated at par with that of a Government servant. The petitioner/Corporation was the sole authority in law to frame any regulation in respect of the terms and conditions of its employees and there is no conflict between Rule 11 of the Regulations 1957 and section 42 of the House Building Finance Corporation Act, 1952. . In this context, I was reminded of the judgment of the Supreme Court of Pakistan reported as Abdul Majid Sheikh v. Mushafee Ahmad and another PLD 1965 SC

208. In this case, the Supreme Court observes as under:- "When it is said-that "a person holds an appointment till further orders" it only means that he holds it till orders are passed terminating his service. These words cannot be interpreted as carrying a necessary implication that all conditions relating to his tenure of service are withdrawn and henceforth he will be dismissed or removed without an opportunity to show cause." The reference to this judgment came to my mind while considering. the nature of employment of the respondents when their services were not terminated immediately after the absorption of Zahid Hussain and Din Muhammad suspended employees whose vacancies they had filled it. But after careful consideration of the aforesaid judgment, I cannot hold that the continuation of the respondents in service changed the situation or made them permanent employees because as already observed, they are not Government servants. Hence, cannot be treated at par with them. The failure of the petitioner/Corporation to terminate the services of the respondents soon after the induction of Zahid Hussain and Din Muhammad does not make them permanent employees and, therefore, continuation of service was to be governed by their appointment letters. Assuming otherwise for the arguments sake, even then, under Rule 11 of the Regulation, 2957, their services could be terminated on 3 months' notice instead of one month's notice. I should not be misunderstood here so as to make respondents eligible to be governed by Rule 11 of the House Building Finance Corporation Service Regulation, 1957 because the services of the respondents shall continue by virtue of their appointment letters. The upshot of the above discussion is that these writ petitions succeed and the orders impugned dated 20-2-1991 are set aside being without lawful authority and jurisdiction, with no order as to costs. H.B.T./H-34/L Petitions allowed.