2009 PLP 335 (PLC)

NADEEM AZHAR SIDDIQI, J.

The facts of the case are that the petitioners were employed by respondent No.1 and their services were terminated by letter, dated 13-3-1996 giving them one month salary in lieu of one month notice advancing reasons for their termination as completion of their contract as such the petitioners after completing due formalities filed application under section 25-A of Industrial Relations Ordinance, 1969. The respondent filed objections/reply denying the pleadings of petitioner mainly on the ground that they had been engaged temporarily on contract and on completion of contract their jobs were dispensed with. They further stated in the objection that the petitioners had no locus standi to file the application as they were not covered under the provisions of West Pakistan Standing Orders Ordinance, 1968 and I.R.O. 1969. It was also contended that the termination being simpliciter was not covered by the provisions of section 25-A of I.R.O., 1969. Affidavits in evidence were filed on behalf of petitioners and were cross-examined and on behalf of respondent No.1 Manager Mushtaq Ali Shah Bukhari was examined and cross-examined. After hearing the parties learned Labour Court allowed the application vide order, dated 27-10-1999, holding the termination of the petitioners to be illegal and unlawful and further directed the respondent to reinstate the petitioners within one month with all consequential back-benefits. The respondent No.1 being aggrieved filed appeal before Sindh Labour Appellate Tribunal, Karachi which allowed the appeal vide its decision dated 15-1-2001 setting aside the order of Labour Court hence this petition has been filed with a prayer to set aside the decision of Sindh Appellate Tribunal holding the same to be illegal, mala fide and unsustainable in law. Learned counsel for the petitioner has contended that the judgment of respondent No.2 is based upon misreading and non-reading of evidence and the same is based upon the law which has no bearing on the case of petitioners. He further contended that provisions of law i.e. Standing Order 1 of West Pakistan Ordinance No. VI of 1968 have not been considered. He then submitted that the respondent No.2 while deciding the appeal has not appreciated that the petitioners were assigned duties not related to BMR (Balancing Modernization and Rehabilitation) which is evident from the material available on record. He then submitted that the duties assigned were duly performed by the petitioners and the same were unshaken in the cross-examination which establishes that they were engaged permanently as defined in Standing Order

1. He then submits that petitioners were appointed on a permanent post and after completion of probationary period they have become permanent workmen and their services could not be terminated without any cause or reason. The learned counsel for the petitioners relied upon the following reported cases:

(1) Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610, (2) Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682 and (3) Dawood Cotton Mills v. Sindh Labour Appellate Tribunal 2004 PLC

348. Learned counsel for respondent contended that the petitioners were employed on contract basis on purely temporary posts and their contracts were completed and were terminated in terms of contract. He submits that the establishment in which the petitioners were working was closed and the workers were retrenched and the factory was closed and thereafter the management has let out the factory on contract and presently the contractor is running a part of factory with his own resources. The learned counsel for respondent has relied upon the case of WAPDA and others v. Khanimullah and others reported as 2000 SCMR

879. We have heard the learned counsel for' the parties and perused the record. The main controversy between the parties is whether the petitioners were appointed on contract on temporary post or were appointed on a permanent post and after completing their probationary period have attained the status of a permanent workmen. The petitioner No.1 was appointed on the basis of appointment letter which says that he was appointed on contract basis in the cement dispatch department against consolidated amount and the contract will be terminable without any notice. The said contract was terminated on 13-3-19,96 on the plea that the petitioner No.1 was appointed on contract due to extra load work in connection with Balancing, Modedrnization and Rehabilitation System of cement plant and the work has been completed rendering the petitioner as surplus. The appointment letter is silent with regard to BMR. No doubt the appointment letter was issued on contract basis but it was not stated that the appointment was on a temporary post. The same is the position of the other petitioners. In affidavits in evidence the petitioners stated that they were permanent workmen working on a permanent post and the reasons for termination are not correct. In cross-examination the version has gone unchallenged. In its evidence the respondent states that the petitioners were not permanent workmen, but were employed on the work of temporary nature for a specified period against a fixed salary. From the appointment letter it is clear that the petitioners were not appointed for BMR work. From the appointment letters it is clear that they were appointed in several departments of the respondent and there is no evidence that the departments in which the petitioners were appointed are temporary in nature. Undisputedly the petitioners have worked with the respondent for more than ninety days on a post of permanent nature without any break and in absence of any explanation and evidence to the contrary have attained the status of permanent workmen. It is now well-settled principle of law that it is the nature of work which determines the status of the workman and the period of employment is not the sole determining factor. If the nature of work for which a person is employed is of a permanent nature he may become permanent upon expiry of probation period. In this matter all the petitioners worked for more than two years without any interruption and gap and the burden is upon the respondent to prove that they were employed on temporary post not likely to last for more than nine months. The respondent has failed to produce any evidence inspiring confidence in this regard. The mere statement of the respondent that the petitioners were appointed for BMR are not sufficient in presence of evidence that BMR were assigned to more than one contractor and the petitioners were not employed by them. The Appellate Tribunal has erroneously shifted the burden upon the petitioners to prove their status and has failed to exercise jurisdiction vested in it properly. Since the petitioners are permanent workmen working on permanent posts, their services cannot be terminated without assigning reasons. The Appellate Tribunal has held that irrespective of whether respondents/petitioners were permanent or temporary employees their services could be terminated subject to of course observance of legal requirement but has failed to consider that service was terminated without payment dues which a permanent workman is entitled upon termination of his service. In the reported case of Pakistan P.W.D. v. Abdul Aziz (supra), the Honourable Supreme Court has' held that the period of employment is not a sole determining factor. It is the nature of work upon which a person is employed. If the nature of work is permanent then he may become permanent upon expiry of period of nine months. In the same judgment the Honourable Supreme Court has also held that once it is proved that the employees remained in service without any interruption between a period for 2 years to 7 years the burden of proof was on the employer to show that employees were employed on the work which was not a permanent in nature and which could not have lasted for nine months. The reported case of WAPDA v. Khanimullah (supra) cited by learned counsel for the respondent is not directly applicable to the case as in that case employees worked for number of years for a specified project on work-charged basis and the appointments were terminated on completion of work on the specified project. Since the petitioners at the time of termination were permanent workmen employed on permanent post, they could not be terminated without assigning any reason and their terminations are bad in law and are entitled to be reinstated in service. As far as back-benefits are concerned it is unbelievable that the petitioners remained unemployed for a long period of thirteen years. The, petitioners have also not produced any convincing evidence in this regard. In view of this the petitioners are only entitled to the benefits which they were entitled at the date of termination of service and not the consequential benefits as ordered by the trial Court. In view of the above discussion the petition is allowed, the judgment of the Appellate Tribunal is set aside and the judgment of Labour Court is upheld. The petitioners are reinstated in service with all benefits which they were entitled at the date of termination of their services. In view of the circumstances of the case, the parties are left to bear their own cost. H.B.T./N-39/K Petition allowed.