2022 PLP 111 (PLC)

NOOR ZAMAN, MEMBER.

Petitioners in case No.4B(103)/2015 were appointed as Horticulture Supervisors w.e.f 01-01-2011 on Muster roll basis initially for a period of one year and after expiry of one year their engagement was extended for further six months and after expiry of next six months extension for one more year was approved and another extension for a period of six months was approved upto 31 December, 2013 and since 02-01-2014 their services are being engaged for a period of 89 days and same has regularly being extending for 89 days. Since the initial date of appointment, the petitioners have been performing their duties with full devotion, dedication and having unblemished record of their services and there is absolutely no complaints, whatsoever, about their work. Under the labour laws a workman with nine months service is treated a permanent one under Orders 1(b) and 1(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. That the petitioners in view of above definition of Permanent Workman have attained the status of permanent Workmen, therefore, served grievance notice dated 24-08-2015 to the respondent for their regularization but the grievance of the petitioners have not so far been redressed, hence, this petition. The petitioners relied on case law reported in 2013 PLC (C.S.) 796.

2. The 36 petitioners in 4B(104)/2015 also contended that they are workmen by the nature of their duties and work. That the petitioners were appointed as OGM (Mali) w.e.f 01-01-2011 on muster roll basis initially for a period of one year and after expiry of one year their engagement was extended for further six months and after expiry of next six months extension for one more year was approved another extension for a period of six month was approved upto 31 December, 2013 and since 02-01-2014 their services are being engaged for a period of 89 days and same has regularly being extending for 89 days, that since the initial date of appointment, the petitioners have been performing their duties with full devotion, dedication and having unblemished record of their services and there is absolutely no complaints, whatsoever, about their work. Under the labour laws a workman with nine months service is treated as permanent under Orders 1 (b) and 1(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. That the petitioners in view of above definition of permanent workman have attained the status of permanent employees, therefore, served grievance notice dated 24-08-2015 to the respondent for their regularization but the grievance of the petitioners have not so far been redressed, hence, this petition.

3. In written statement filed in defense, the respondents contended that:- a) CDA employees are governed under statutory Rules, therefore, are excluded from preview of Standing Order Ordinance. b) The petitioners have no cause of action as no right has been infringed. c) That the petitioners are temporary employees and cannot be regularized. The objection (a) raised by the respondent was deliberated upon by this Bench vide order dated 27-09-2016 in 4B(104)/2015 and decided that CDA Employment Rules were not proved to be statutory and therefore, Standing Orders Ordinance, 1968, is applicable and the NIRC has jurisdiction to entertain the petitions.

4. Thereafter the petitions were put on evidence of the petitioner. Mr. Muhammad Adnan presented himself as PW/1 while in case of Nisar Ahmed and 24 others v. Capital Development Authority the petitioners empowered, Mr. Nisar Ahmed as PW/1, who is also attorney of the rest of the petitioners. Due to non attendance and presentation of witness, right of respondent to produce evidence was closed in both petitions vide order 21-11-2019.

5. Thereafter the case was transferred from Bench No.II to this Bench due to non-availability of learned Member Bench No.II. The case was fixed for arguments on 16-04-2020.

6. Learned counsel for the petitioner reiterated contentions mentioned in the memos. of petitions and stated that in 2010, the CDA management discontinued maintenance of Constitutional Avenue, through contractor and initiated its maintenance departmentally. For this purpose one post of Horticulture Officer, two posts of Horticulture Supervisors and 40 posts of Malis were created in 2010 and the petitioners were accordingly appointed on 27-12-2010 on muster roll/contract basis and that the contract period has been extended from time to time till date. That in similar cases, the learned member of Bench No.II in petitions Nos.4B(195)/2015 and 4B(196)/2015 passed order dated 01-07-2019 while accepting these petitions regularized the petitioners.

7. Learned Counsel for the respondent reiterated contentions already mentioned in the written statement of the respondent.

8. Arguments heard record perused.

9. It is an admitted fact that the respondent management was not satisfied with the job of contractor and maintenance of flower beds and other plantation on Constitutional Avenue was switched over to department from contractor. It is also fact that this is permanent nature of job and the respondent management have to keep it continue for indefinite period. Since, 2010, the job is continuously performed by the petitioners. It is also not denying the fact that the petitioners are continuously working on their post since their appointment on 27-12-2010. Contention of respondent that service Regulation of CDA are statutory and employees of the CDA are excluded from ambit of Standing Orders Ordinance, 1968 does not hold ground as the Service Regulation of CDA have not been approved by the Federal Government, but by CDA Board, therefore, these Regulations are non-statutory. The respondent contended that no right of petitioners has been infringed therefore; they have no cause of action while it is not the case. The petitioners have attained the status of permanent workman, and have become at par with all other employees of CDA but they are still being treated as daily wage employees which violates their right of being permanent employees of the Respondent.

10. The Superior courts through numerous judgments laid down that employees continuously working for long time against permanent posts become eligible to be regularized. In a judgment reported 2008 SCMR 1058 titled Tehsil Municipal Administration Rahimyar Khan v. Hanif Masih and others. The Supreme Court upheld judgment of Labour Court and High Court, where employees of TMA, Rahimyar Khan were regularized who were in continuous service ever since their employment. In another judgment reported in PLC 2002 SC 724 SNGPL v. Ghulam Abas the employee was regularized who was appointed on contract basis and was terminated after transfer of project to Provincial government. In 2018 SCMR 1405, Board of Intermediate and Secondary Education Faislabad v. Tanveer Sajid and others, the Respondent employees had been working for long period of time ranging between 3 to 12 years, on contract basis. They were initially appointed for 89 days but after expiry of the said period, their contracts were renewed from time to time for further 89 days, which was held to be violation of their rights of being permanent employees. It is held that Services of employees were not only required but beneficial to the establishment. The High Court regularized their services and the Supreme Court upheld decision of the High Court. Similarly employees of Board of Intermediate and Secondary Education, DG Khan were also regularized through judgment in 2018 PLC (C.S.) 647; BI&SE D.G Khan v. Muhammad Altaf and others. 10(sic) In light of above case law and the fact that the petitioners in both petitions have been working on permanent nature of job continuously since, 2010, they have attained the status of permanent workman and are entitled to be regularized and be placed in seniority in the manner that they are appointed on the date of this order. However, they will be considered regularized for fixation of pay and pensionary benefits from the date of their initial appointment on must roll/daily wage basis. The petitions are allowed in these terms. There is no order as to cost. File be consigned to R.R. SA/7/NIRC Petition allowe