2004 PLP 224 (PLC)

The brief facts out of which the present petition arises are that the respondent got appointment from the petitioner on work charge basis on 2‑11‑1983. He was again employed on work charge basis for 89 days w.e.f. 1‑1‑1988. The petitioners intimated the respondent vide letter, dated 12‑5‑1988 that his services had come to an end on 29‑3‑1988. Thereafter he had not been given any extension. The respondent has submitted application before the petitioners on 30‑3‑1988 with the prayer for further extension from the said date to onwards. His request was not accepted. The respondent sent a grievance notice to the petitioners under section 25(A)(1) of I.R.O. 1969. Subsequently the respondent filed grievance petition before the Labour Court No. 1 Lahore against the petitioners. The learned Labour Court dismissed the same vide order, dated 24‑1‑1996. The respondent being aggrieved field appeal before the Punjab Labour Appellate Tribunal which was partly accepted vide impugned, judgment dated 12‑5‑1998 as the back‑benefits were not allowed to the respondent and petitioners were directed to reinstate‑the respondent w.e.f. 25‑1‑1996. Hence the present writ petition.

2. Learned counsel of the petitioners submits that respondent was employed by the petitioners in a Project for a fixed period and was not holding a permanent post or his work was not of permanent nature. There was no budgetary post against which the respondent was appointed by the petitioners. The judgments of both the Tribunals below are at variance. The learned Labour Court was justified to dismiss the grievance petition whereas Punjab Labour Appellate Tribunal erred in law to accept the appeal of the respondent: He further submits that petitioners were justified to terminate the services of the respondent in terms of appointment letter as well as under the Rules of the petitioners as the respondent was not appointed against any budgetary post.

3. The Constitutional petition is not maintainable in view of Article 199 of the Constitution as the petitioners have not impleaded Punjab Labour Appellate Tribunal as respondent. However, in the interest of justice and fair play, I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record.

4. It is admitted fact that respondent was appointed by the petitioners against a project which was not lapsed at the time when the petitioners did not extend or re‑employed the respondent. The first appellate Tribunal after reappraisal of evidence has given finding of fact that the post against which the respondent had been employed still exists and one Maqsood had actually been employed as Clerk against the said post and also gave finding of fact against the petitioners numerous other persons had also been appointed in the same category and the petitioners failed to establish before the first appellate Tribunal that the respondent was the junior most at the time his ouster from service was ordered. This fact alone is sufficient that the action of the respondent is without lawful authority and is hit by Article 25 of the Constitution as the law laid down by the Honourable Supreme Court in I.A. Shervani's, case (1991 SCMR 1041). It is also admitted fact that first appellate Tribunal after reappraised of evidence on record has given finding of fact against the petitioners that respondent has been getting his salary on monthly basis without any deduction, in respect of the weekly holidays. Therefore, petitioners could only terminate the services of the respondent with reasons as is envisaged under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Coupled with the fact that such type of appointments have permanent character by performing duties against a post for such long g period by virtue of legal consequences as the law laid down by the, Honourable Supreme Court in the following judgments:‑‑ Abdul Majeed Sheikh's case (1965 PLD SC 208) and Raees Khan's case (1993 SCMR 609). In view of the aforesaid finding of first appellant Tribunal services of the respondent are of permanent nature which is in consonance with the reported cases Faisalabad Development Authority's case (1986 PLC 705) Jan Muhammad Chowkidar's case (1986 PLC 596) and Rice Export Corporation's case (1990 PLC 93). The first appellate Tribunal rightly observed that intention and spirit of law could not be permitted to be offended against, by keeping an employee on the road just for 89 days (a day less than probationary span) which is as mentioned above, mala fide and this illegal device is against the aforesaid Ordinance. It is pertinent to mention here that petitioners have extended/re‑employed the respondent after 89 days which clearly envisages that petitioners have exercised their power in a manner which is termed as mala fide to frustrate the mandate of West Pakistan Standing Order, 1968. Therefore, action of the petitioners is not in good faith as the power is exercised, as mentioned above, to defeat the mandate of the law. The action of the petitioners is male fide as the law laid down by the Honourable Supreme Court in Agha Shorrash Kashmiri's case (PLD 1969 SC 14). It is settled principle of law when the action is based on mala fide then the same is not sustainable in the eye of law as the law laid down by the Honourable Supreme Court in the following judgments:‑‑ Zia‑ur‑Rehman Farooqi's case (PLD 1973 SC 49), Saeed Ahmad Khan's case (PLD 1974 SC 151) and Ghulam Mustafa Khan's case (PLD 1989 SC 26). The respondent has performed duties for more than 90 days in spite of the fact that petitioners have re‑employed the respondent after 89 days which is not in consonance with the law laid down by the Honourable Supreme Court in XEN Central Civil Division v. Abdul Aziz (PLD 1996 SC 610). All the contentions raised by the learned counsel of the petitioners were noted by the Honourable Supreme Court in the cited case and rejected. It is settled principle of law that, judgment of the Honourable Supreme Court is binding on each and every organ of the 'State as envisaged by Articles 189 and 190 of the Constitution. The judgment of the Punjab Labour Appellate Tribunal is in accordance with law laid down by the superior Courts in the following judgments:‑‑ Federation of Pakistan v. Rais Khan (1993 SCMR 609) and Punjab Seed Corporation v. PLAT (1995 PLC 539). It is also settled principle of law that petitioners are duty bound to act in accordance with law in view of Article 4 of the Constitution as per principle laid down by the Honourable Supreme Court in Utility Stores Corporation's case (PLD 1987 SC 447). After addition of Section 24‑A in the General Clauses Act it is the duty and obligation of the public functionaries to pass the order with reasons but the order impugned by the respondent does not contain any reason. Therefore, the same is not sustainable in the eyes of law after addition of section 24‑A in the General Clauses Act which is procedural in nature and has retrospective effect in view of the law laid down by the Honourable Supreme Court in the following judgments:‑‑ Messrs Airport Support Services v. The Airport Manager (1998 SCMR 2268) and Zian Yar Khan v. The Chief Engineer (1998 SCMR 2419): It is also settled principle of law that Constitutional jurisdiction is discretionary in character. Since substantial justice has been done I am not inclined to exercise jurisdiction in favour of the petitioners as per law laid down by the Honourable Supreme Court in the following judgments:‑‑ Nawab Syed Raunaq Ali's case (PLD 1973 SC 236) and Rana Muhammad Arshad's case (1998 SCMR 1462). In view of what has been discussed above, this petition has no merit and the same is dismissed. M.H./D‑1‑0/L Petition dismissed.