2008 PLC 284 (PLP)

MAULVI ANWARUL HAQ, J.

According to the contents of this writ petition, the petitioner was employed with respondent department as supervisor in Grade-I in the year 1981. The initial salary was Rs.527 per month and after periodical increase he was receiving Rs.2,922 per month in the year 2003. He is continuously serving the department but his services have not been regularized. He has not been paid salary since December, 2002 but after receipt of funds, he has been paid 7 months salaries in March, 2005. Further states that there were about 145 work charged employees in the department, many of whom were transferred to Municipal Corporation Rawalpindi, within present T.M.A. Forty-three employees filed grievance petition under section 25-A, I.R.O., 1969 before Labour Court No.6 Rawalpindi. These petitions were accepted and the department was directed to regularize their services and the appeal filed before this Court was dismissed on 28-1-2004. Similarly, 262 employees at Lahore filed grievance petition, which was dismissed by the learned Labour Court at Lahore, but the appeals were allowed by the Punjab Labour Appellate Tribunal on 5-5-1985 and Writ Petition No.3488 of 1995 filed by the department was dismissed on 29-8-2001. Apart from the said judicial proceedings, on representation, a scheme was devised to regularize the services of 30 employees per year and it was in fact implemented for sometime. The Chief Minister of Punjab also issued directive to the said effect on 22-3-1993 (Annexure "J"). With these averments the petitioner prays for a direction to be issued for regularization of his services and payment of salary till June, 2005.

2. In their written statement the respondents have admitted that the petitioner was appointed in 1981 and continued to work as supervisor till 30-6-2003 when area development scheme against which the petitioner was working was handed over to T.M.A./WASA along with work charged employees. The rest of the factual averments as noted above have also been admitted. However, it has been insisted that since the petitioner was work charged employee no right vests in him to make prayer for regularization of his services.

3. Learned counsel for the petitioner contends that the services of the petitioners were never transferred or taken-over by T.M.A./WASA. According to him admittedly the petitioner has been working since 1981 and as such he cannot be denied his right on the ground that he is work charged. He also draws my attention to some departmental correspondence regarding payment of dues of the petitioner even after 30-6-2003. He further argues that his client is entitled to benefit of the judicial decisions given in similar circumstances on the basis of case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 'PLC (S.C.)

368. On the other hand, the learned A.A.-G. urges that the petitioner being the member of work charged establishment, which is project specific, cannot claim the said relief in constitutional petition if at all he should adopt grievance procedure under I.R.O. He insists that notwithstanding the said correspondence relied upon by the learned counsel the petitioner has not been doing any work at least after 30-6-2003.

4. I have gone through this file in the light of submissions noted above of the learned counsel and learned Law Officer. As noted by me above there is no denial that the petitioner was employed in the year 1981 and continued till 30-6-2003. Thereafter the case of the respondent is that the scheme along with work charged employees was transferred to T.M.A./WASA. I have examined the documents shown to me by the learned A.A.-G. I find that so far as the petitioner is concerned his services were neither transferred nor were taken over by T.M.A./ WASA. So far as the matter of continuous service after 30-6-2003 is concerned, I find on record a letter, dated 13-7-2005 addressed by the Deputy Director of the respondents to the Director requesting for release of monthly wages of the petitioner for period 1-7-2003 to 30-6-2004 at the rate of Rs.2,922 per month. There is yet another letter, dated 21-10-2005 addressed by the same Deputy Director to the Director stating that although salary was released but the amount was utilized against some other head and requested for release of the said amount to be paid to the petitioner. At the moment the learned A.A.-G. is not in a position to controvert the said documents. However, prima facie these do go to negate the plea taken by the respondents in the written statement.

5. Having, thus, examined the file, I do find that the petitioner remained employee since the year 1981. He was prima facie working till 30-6-2005 i.e. at a point of time after the institution of this writ petition. By now it is well-settled that there is no concept of person being work charged indefinitely. In the present case, admittedly continuous service for period of about 20 years cannot be at all to be deemed on work charge basis. Another aspect of the case is that admittedly the petitioner is a worker. This being so, applying criteria laid down in the Industrial and Commercial Standing Order Ordinance, 1968 the petitioner certainly is a permanent workman having employed against a job, which has certainly continued for more than 9 months. So far as the said contention of the learned A.A.-G. suggesting that he should approach the learned Labour Court concerned, to my mind a question of law stands admittedly settled in the judgment of the learned Labour Court, learned Labour Appellate Tribunal and then this Court as a result whereof similar relief was granted. In the said case of Tara Chand being relied upon by the learned counsel for the petitioner it has been observed by the Honourable Supreme Court with reference to the case Hameed Akhtar Niazi v. The Secretary, Establishment Division Government of Pakistan and others 1996 SCMR 1185 as follows in para.10 of the judgment:- "(10) To further elaborate the above aspect, it would be relevant to refer the case of Hameed Akhtar Niazi (supra) wherein this Court has held that when Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servants who litigated, but also of other civil servants, who may have not taken any legal proceedings, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."

6. For all that has been discussed above, this writ petition is allowed and the respondents are directed to issue appropriate orders regularizing the service of the petitioner as supervisor in Grade-I. So far as the emoluments are concerned the respondents shall check up their record with reference to the letters dated 13-7-2005 and 21-10-2005 of their Deputy Director and in case these are found to have been addressed the petitioner would be paid salary at the rate of Rs.2,922 per month with effect from 1-7-2003 to 30-6-2005. Further emoluments on regularization will be started and paid w.e.f. the date of regularization. The respondents to take steps to comply with this judgment within 30 days from today. No order as to costs. M.H./M-113/L Petition allowed.