1992PLC110 (PLP)

2. I have heard h1r. Rana Mahinood Ali Khan, holding brief for Mr. Ahsanul Haq, learned Ad--ovate for the appellant and Mr. Abdul Ghani Khan, learned Advocate for the respondents and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the appellant claims to be permanent workman' employed by the respondents on 25-2-1987. He alleges that he issued B-2 Form in respect of one Abdul Ghani, Driver, which annoyed the respondent who removed him from service orally on 22-12-1987. The appellant made such application to Labour Department but to no effect. He thereafter sent grievance notice to the respondent on 11-1-1988. Failing to get redress he filed grievance application. The respondent claimed that the appellant was casual daily wage worker and was not a permanent workman.

4. It is not disputed that no order in writing as required under section 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance') was issued by respondents removing the appellant from service. In fact at the time of arguments before this Tribunal Mr. Abdul Ghani Khan, learned counsel for the respondents submitted that the appellant had not been removed from service but he himself was not coming for duty as he was daily wage worker. It -may be pointed that this plea was neither raised in the reply statement nor in arguments before the learned Labour Court.

5. The appellant in his grievance notice, which has been produced as ExA/3 with the grievance petition, had asserted that he was working as permanent workman since 25-2-1987. This grievance notice was not replied to by the respondents who claim that it yeas not received by them. The appellant had examined the `Postman' Imam Din, who states that he delivered the registered letter No."147" to Ejaz, Clerk of the respondents who receives it on 12-1-1988 after obtaining the `acknowledgement' which is produced as Ex A/11. The `postal receipt' produced alongwith the copy of grievance notice by the appellant is Ex A/4, which bears No."147". In view of this `documentary' and `oral' evidence there can be no doubt that the respondents did receive the grievance notice Ex A/3 which remained un-replied. Thus the assertion of the appellant in his grievance notice that he was a permanent workman since 25-2-1987 teas not rebutted by the respondents by replying to the grievance notice.

6. The questions that require consideration is whether the appellant was employed on 9-8-1987 as alleged by the respondents or he was working in the mill from February, 1987 as alleged by the appellant and secondly whether he was a Daily Wage Worker or a Permanent Worker. The respondents have themselves produced the Attendance Sheet of the Daily Paid Workers for the month of July, 1987 as Ex R/4 which shows the name of the appellant. The witness of the respondent Mr. Mohammad Younus his admitted that the applicant had worked for four days in the month of February as per Pay Sheet Ex A/12, for 26 days in the month of June as per Pay Sheet Ex A/13. He was not able to produce Pay Sheets for the months of March, April, May on account of Shifting of Head Office from Hyderabad to Karachi. The appellant has also produced the Attendance Cards for the months of February, March, April, May, June and July, 1987 as Ex. A/5 to A/10. The respondents have denied to have issued these Attendance Cards, but the evidence of their witness Mohammad Younus, supports the case of the appellant that he was working in the mill since February, 1987 and, therefore, I see no reason to doubt the genuineness of these Attendance Cards. All this evidence belies the contention of the respondents that the appellant was employed from August, 1987 and supports the case of the appellant that he was employed in February, 1987.

7. The respondents have produced through the appellant his application for appointment Ex R/1. The appellant admits his signature on this application but denies to have put any date under his signature. The date purports to be 9-8-1987 though there appears to be interpolation in the figure with regard of month and figure `2' appears to have been interpolated as `8'. As the appellant was already in service of the respondent since February, 1987 and it is not alleged even by the respondents that his services were terminated before 9-8-1987, there was no need for him to move fresh application for appointment on 9-8-1987. No application for appointment on prior dates if made by the appellant have not been produced by the respondents. The contention of the appellant that he was employed on 25-2-1987 also gets support from the statement of Mohammad Younus that he worked four days in the month of February, 1987. If we count the days in the month of February from 25th, there would be only four days left. In view of all this evidence I am inclined to believe the appellant that the application Ex. R/1 was moved by the appellant at the time of his initial appointment in February, 1987 though the `notings' on the application shows they were made in the months of August and November, 1987. These are, however, made by the employees of the respondents and Would be managed by them at any time. Even `noting' dated 1-11-1987 shows that the appellant had been working for the period of 8 months before and three months in the current term. Even from this `noting' it will be clear that the appellant was in service of the respondent much before August, 1987.

8. It leaves us only with the question whether the appellant was a Daily Wage Worker or a permanent employee. All the abovementioned documents produced by the appellant or the respondent show him to be Daily Wage Worker. It is not disputed that the appellant is a worker as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance'). It is also not disputed that said Ordinance is applicable to the establishment of the respondent. Under Standing Order (I) there are only five categories of workers viz (i) Permanent (ii) Probationer (iii) Badlies (iv) Temporary and (v) A Apprentices. There is no category of `Daily Wage Worker' but it only signifies the `mode of payment' therefore at the most a Daily Wage Worker may be considered as a Temporary Worker.

9. Mr. Abdul Ghani Khan has relied upon a decision of this Tribunal in the case of Mohammad Yousuf v. Pakistan Steel Corporation Ltd. 1988 PLC 340 wherein this Tribunal held that appointment on daily wages basis was not prohibited by law. The person appointed on daily wages basis whose services were terminated and fresh appointments made on purely daily wages basis such workers could not claim to have become permanent employees.

10. Mr. Ahsanul Haq relied upon decision of this Tribunal in the case of Qamaruddin v. M/s. Rice Export Corporation of Pakistan 1989 PLC 1009. In that case the workman who was initially appointed on daily wages for a fixed number of days only but continued to work for nearly 3 years. No case was made out that the job was of a temporary nature and was likely to be finished within nine months. This Tribunal held that "the only classification in which such workman could be fitted was that of a `permanent' workman in spite of the fact that he had been paid daily wages".

11. Reliance is also placed upon the decision of this Tribunal in the case of Zaheer Ahmed v. Manager Administration, Wazir Ali Industries Ltd., Hyderabad 1989 PLC 850, wherein it was held "that where workman remained in service of employer for more than three months and where no evidence existed showing that the workman was appointed against work which was temporary in nature likely to be finished within nine months, such workman acquired the status of permanent workman". It was further held "that Standing Order 2-A required every appointment or termination to be in writing and communicated to the workman and non-compliance of such mandatory provision would not only make employer liable to punishment but also adverse inference could be drawn against him".

12. Mr. Abdul Ghani Khan also relied upon the case of Mohammad Yaqoob v. The Punjab Labour Court & others 1990 SCMR 1539. In that case grievance petition was filed by the workman, the Labour Court held, that by virtue of eight years of service it was clear that. he was working against a permanent post and was a permanent employee. The learned Appellate Court however held:- "A person who does not work continuously for more than ninety days and has not satisfactorily completed the probationary period, he cannot be a permanent worker. The respondent has in his very grievance petition said that he is a work-charged employee. He appeared as his own witness but did not say whether he used 'to get wages for the full month including wages for Friday and holidays. If he was not paid wages for Fridays then his services could not become continuous and, therefore, he could not claim to be a permanent worker:' In Constitution petition the learned High Court refused to interfere as. the finding of fact had been recorded which was not shown to suffer from any legal infirmity. The Application for Appeal to Supreme Court was refused and it was held by their Lordships:- "In order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the petitioner had to show that he was a permanent workman. A `Permanent Workman' has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman The length of the period of employment by itself has not been made the ground or a test for determining the nature of work. Keeping in view the nature of the work on which the petitioner was employed, namely, an addition to the regular strength of Malis for the maintenance of the gardens and the grounds on daily wages or on work charge basis it cannot be said that such additional work being done by him was of a permanent nature necessarily. As regards the stigma attaching to the permanence of his services, the petitioner has as witness admitted that the termination order was oral and not in writing. In the circumstances no question of law arises which may require further examination in this Court, Leave to appeal is, therefore, refused."

13. It will be seen that their Lordships have not held Daily Wages Worker cannot become Permanent Workman but their lordships only held that it is nature of work and not length of service which determined whether the workman was permanent or not.

14. In the aforesaid case of Mohammad Yaqoob it will be seen that the learned Appellate Tribunal held the workman not to be permanent on two grounds firstly that he himself admitted in the grievance petition that he was work-charged employee; secondly that he was not paid wages for Fridays and holidays and therefore his services could not be considered as a continuous service. The learned High Court refused to interfere in the Constitution petition as it was finding of fact. The Hon'ble Supreme Court has dealt the matter at some length. The Hon'ble Supreme Court has not touched the question as to whether non-payment of wages on Fridays and holidays could be a ground to determine whether a workman was permanent or not. However their lordships clearly held, that it would be the nature of work which would be determining factor. As already pointed out the workman in aforesaid case had admitted that he was work-charged employee therefore their lordships held that keeping in view the nature of work and that the petitioner was working in addition to the regular strength of malis, it could not be said the work done by him was of permanent nature.

15. In the instant case the appellant does not allege that he was temporary worker, but he claims to be permanent workman. The contention of the respondents stands belied at least on two points firstly that they did not receive the grievance notice secondly that the appellant was appointed in August and not in February, 1987. No appointment order of the appellant has been produced to show that he was appointed for a particular number of days. The mere fact that he was not paid wages for Fridays or holidays or for the days he remained absent would not necessarily mean that there was discontinuance in his appointment. The worker would be deemed to discontinue from service when his services are terminated by an order in writing as required under Standing Order 12(3). No such order has been produced. As pointed out in Para 4 ante, the learned counsel for the respondents admitted that the appellant had not been removed from service. However, no order has been produced by the appellant that he has been appointed on permanent basis though his application for appointment Ex. R/1 does not show that he applied for appointment on Daily Wages. There is also no evidence to show that the work on which he was appointed was of permanent nature. I am, therefore, of the view that the appointment of the appellant was temporary. It is settled law even a temporary employee is entitled to an order in writing as required under Standing Order 12(3). In absence of such an order and in view of the admission C of learned counsel for the respondents, that he has not been removed from service the appellant would be deemed to be in service of the respondent and he would be deemed to have continued in service, therefore, his appeal is allowed and he is ordered to be reinstated in service.

16. However it leaves us with the question of back benefits. Apparently the practice or oral terms and conditions of appointment of the appellant appear to be that he would not be paid any wages for Fridays or holidays or for the days he remained absent. This fact is apparent from the documents produced by the respondents, which have been discussed above and evidence of the respondent's witnesses, which has not been challenged by the appellant. The absence for which tk=e appellant would not be entitled to get the salary would be voluntary absence and not forced absence. In the instant case the appellant moved the Labour Department. He had given Grievance Notice and moved Grievance Application but the respondents have never offered him to resume duties. Even during the course of proceedings before the Labour Court and this Tribunal no such offer was made. Therefore the appellant would be entitled to the salary for the intervening period except Fridays and holidays. However as the period involved is more than three years and there is no specific evidence to show whether during this period the appellant was employed or was sitting unemployed I would award him fifty per cent of the salary to which he is entitled as held above. Order to be implemented within one month. H.B.T./1934/Lb.S Appeal allowed.