1998 PLP 350 (PLC)

MUHAMMAD ZAMAN QURESHI (CHAIRMAN).

This appeal has been filed by Executive Engineer, Pak P.W.D. Central Civil Division No. 3, Lahore against the order of Agha Salim Khurshid, Member, N.I.R.C., Lahore dated 26-4-1997 recorded in Case No.4A(364) of 1995-L holding that the respondent/appellant had no authority to withhold the wages of the petitioner/respondent and to terminate his services and consequently the order of termination was set aside.

2. Briefly stated the facts are that Rizwan Ali respondent was appointed as a Cleaner in BPS-1 (920--26--1310) in the work-charged establishment by the appellant vide order dated 14-11-1993, on temporary basis. He continued to perform his duty. His salary for the months of December, 1994 and January, 1995 was not paid. He, therefore, filed an application under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 in the National Industrial Relations Commission on 13-2-1995 alleging that the petitioner /respondent was an active member of the work-charged staff (C.B.A. Union) and had been taking keen interest in the lawful trade union activities and on that account, was facing victimisation. He was representing the demands of the workers to the respondent/appellant, which annoyed the appellant and resultantly, his salary for the above two months was not paid. It was stated that he was a regular worker by operation of law as he had more than nine months service at his credit.

3. In reply, the respondent/appellant took up objections that the Department was connected with the administration of State, and therefore, Industrial Relations Ordinance, 1969 was not applicable; the respondent/petitioner had no right/authority to file the petition, as he was no more an employee; the work-charged union was not notified as C.B.A., and therefore, the members of the said union had no right to file the application. On facts, it was admitted that the respondent was appointed vide office order dated 14-11-1993 on purely temporary basis, and that his services were terminated vide order dated 1-12-1994 as the funds had exhausted. The parties sworn their affidavits in evidence. After hearing the arguments and going through the record, the learned Member of the Commission recorded the impugned order whereby the petition was accepted.

4. The learned counsel for the appellant has argued that the respondent was employed in the Pak P.W.D., which is a Department of the Federal Government and is connected with the administration of State. Therefore, the provisions of Industrial Relations Ordinance, 1969 were not applicable in view of section 1(3)(b) of the I.R.O., 1969 and as such the Commission had no jurisdiction to entertain and hear the petition. It was further argued that petitioner/respondent was a work-charged employee and his appointment was purely temporary. His services were terminated according to the terms and conditions of his appointment. Hence he could not be reinstated in service. The learned counsel relied in that respect on 1990 SCMR 1539 and 1994 SCMR 1628. It was next argued that in the Federal Government Department, no union could be formed and the Department has a right to get the union deregistered. No case of unfair labour practice was therefore, made out in any case, the respondent after his removal could not seek remedy under the I.R.O., 1969.

5. Learned counsel for the respondent refuting the arguments of the appellant's counsel stressed that the respondent was never employed on work-charged basis. He was in fact, appointed in regular pay scale on temporary basis against the permanent post. He was paid wages on monthly basis without any deductions for holidays. There was no gap in service. He had completed three months' probation period satisfactorily and thereafter, became permanent in accordance with the provisions of Standing Order 1(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It was further submitted that the respondent was employed on 14-11-1993 and that his services were terminated on 1-12-1994 without assigning any reason as required by Standing Order 12(3) of the Standing Orders Ordinance, 1968. This was done in order to victimise, the respondent as he was an active participant in the trade union activities and had been espousing the cause of the workers before the Management which annoyed them and resultantly his pay was firstly stopped and thereafter, his services were terminated and thereby the appellant committed unfair labour practice within the meaning of section 15 of I.R.O., 1969. To support his contentions the learned counsel for the respondent relied on PLD 1996 SC 610 "Executive Engineer, Pak. P.W.D. v. Abdul Aziz".

6. We have considered the arguments of the counsel for both the parties and have perused the record. The contentions raised by the learned counsel for the appellant, in our opinion, have no force. Their Lordships of the Supreme Court in case Executive Engineer v. Abdul Aziz while interpreting section 1(3)(b) of the I.R.O., 1969 held as under:-- "The work of construction or maintenance of buildings, which is performed by the respondents, does not have nexus with the sovereign functions of the State, and therefore, they cannot be described as persons employed in the administration of the State. The above work can be carried out through contractors. The respondents have nothing to do with the running of the Government they may be said to be contributing towards facilitating the functioning of the Government. I am, therefore, of the view that the respondents are not employed in the administration of the State and, hence, the above clause (b) of subsection (3) of section 1 of the I.R.O., 1969 is not attracted to. It must, therefore, follow that the provisions of the I.R.O. could have been invoked by the respondents. Since the respondents' grievance was that their services were terminated in spite of the fact that they were permanent employees in view of above paragraph 1(b) of the Schedule to the Standing Orders Ordinance in violation of Standing Order No.12 they could have filed the applications under section 25-A of the I.R.O."

7. The Supreme Court case referred to by the learned counsel for the appellant was examined by the Honourable Supreme Court in the above judgment and the question of work-charged employees was dealt with as follows:-- "

14. The ratio of the above judgment in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided, he is covered by the definition of the term worker" given in section 2(i) thereof."

8. As regards the third objection raised by the learned counsel for the appellant that no case of unfair labour practice was made out, the same has no force as the allegation of the respondent was that he had been taking active part in the trade union activities, and therefore, he was victimised and as a result of that he was illegally terminated. The plea of the appellant was that no union could be formed as the appellant was a department of Federal Government and the union could be got deregistered. This Commission can hear cases on the allegations of unfair labour practice under section 22-B(3)(a) of the Industrial Relations Ordinance, 1969. It was so held by the Honourable Supreme Court in the case reported in PLD 1988 SC page

53. The Single Bench of this Commission rightly held that the respondents have committed act of unfair labour practice and as a result of discrimination, the respondent was wrongly removed from service. Where an unfair labour practice has been committed, and the case falls under section 25-A, section 34 or section 53, as the case may be, the Commission 6 may deal with cases under that section provided that the Commission while awarding punishment under section 53, may also direct the reinstatement of a worker and allow consequential benefits to him under Regulation 32(1) of the N.I.R.C. (Procedure and Functions) Regulations, 1973. Resultantly, the order recorded by the learned member of this Commission is upheld. The instant appeal is, therefore, dismissed with no order as to cost. H.B.T./300/N.I.R.C. Appeal dismissed.