2009 PLP 71 (PLC)

ARSHAD NOOR KHAN, J.

This appeal under section 47(3) read with section 48 of Industrial Relations Ordinance, 2002 filed by the appellant against the order dated 10-3-2008 passed by the learned Presiding Officer, Labour Court N.VI, Hyderabad, whereby the application filed by the appellant for his reinstatement has been dismissed. The case of the appellant as per application filed before the learned lower Court was that he was appointed on 11-8-1992 as Porter in BPS-2 after passing of requisite test. It is stated in the application that he noted some irregularities and illegalities committed by Sub-Record Clerk of Registrar to the respondent through complaint dated 19-7-1993. After filing of such complaint, the appellant was victimized by the respondent and had forcibly stopped to perform his duties with effect from 3-8-1993 without any order in writing, therefore, the appellant filed Service Appeal No.273(D)(C.S.) of 1993 before the Federal Service Tribunal, which was dismissed on technical ground vide judgment dated 18-4-1994. It is further stated that on hectic efforts of the appellant he was again allowed to perform his duties from 21-9-1995 on same post upto 18-2-2000 and was verbally stopped for performance of his duties on 19-2-2000, as such, the appellant served grievance notice as envisaged under Labour Laws, which was not properly responded, therefore, the appellant filed application for his reinstatement before the learned lower Court, who issued summons for service on respondents who were served and appeared and filed their written statement, inter alia, denying the status of the appellant being permanent in nature and have also stated that he was working as stop-gap arrangement on daily wages and in the appeal filed before the Federal Service Tribunal by the appellant, it was observed that he is not the regular employee but he was working on daily wages. It was further stated in the written statement that the appellant was working on daily wages and not employed as permanent employee and no appointment order in the case of employment on work charge was necessarily used to issue nor the termination letter. The learned Labour Court recorded the evidence of both the parties and after hearing of learned counsel for the parties was pleased to dismiss the grievance petition of the appellant while determining the following points for consideration:- (1) Whether the petitioner is entitled to the relief claimed? (2) Whether this Court has no jurisdiction to entertain the same? The appellant aggrieved with the dismissal of his petition, has filed the present appeal. I have heard Mr. Mehmood Hussain Siddiqui, learned counsel for the appellant and no one appeared for the respondent. The learned counsel for the appellant vehemently contended that the appellant was working as Porter with the respondent since 1993 and he was appointed on permanent basis and his termination without any notice or enquiry is illegal and mala fide. He has further contended that the respondent had malafidely stopped the appellant from performance of the duties verbally, which is against all canons of law, justice and equity and the learned lower Court did not consider the material and evidence brought on record by the appellant showing his permanent status in service, as such, the order passed by the learned lower Court is patently illegal and is liable to be reversed. In support of his contention, he has relied upon the cases reported in 2000 PLC 1999 and 2006 PLC

102. I have considered the arguments advanced on behalf of the appellant and have gone through the evidence available on record. The claim of the appellant is that he was permanent employee as Porter in BPS-2 with the respondent, but he has completely failed to produce any appointment letter showing his permanent employment as Porter .with the respondent. The appellant has also not produced any letter showing his posting in any department of the respondent so as to assess that he was working as permanent employee of the respondent. The respondent's claim is that the appellant was employed as Porter to stop-gap arrangement on work charge basis. The said assertion about the status of the service of the appellant has made by D.W. Sirajuddin in his affidavit-in-evidence before the learned lower Court and in lengthy cross-examination conducted by the learned counsel for the appellant no material has been fished out in cross-examination so as to observe that service of the appellant was permanent in nature with the respondent. D.W. Sirajuddin also deposed about temporary employment of the appellant on work charge basis as Porter being stop gap arrangement, I which has also not received any material dent in his cross-examination. He has also deposed about the dismissal of earlier petition filed by the appellant before the Federal Service Tribunal, who observed the employment of the appellant being temporary and the said finding of the Federal Service Tribunal has also not been controverted by the appellant in his cross-examination. All these circumstances shows that the status of the service of the appellant was not as that of permanent in nature but was temporary. The definition of the workman provided under Standing Orders Ordinance, 1968 does not include the term Porter being covered under the Provisions of I.R.O., 1969 or even the I.R.O., 2002 is also completely silent about the nature of term Porter. The permanent workman by reference to the nature of his work on which he has been engaged or employed is governed with the definition' of workman provided under the I.R.O., 1969 and since the duties of Porter who employed on work charge basis is not covered under the definition of workman, therefore, no weight could be given to the contention of the appellant that his service was permanent with the respondent. The appellant has not brought any independent evidence or documents to prove that he was appointed as permanent employee with the respondent and even in his affidavit-in-evidence nowhere he has asserted that he was appointed Porter on permanent basis, but he has repeatedly stated that he was posted as Porter against permanent post and in. case if a temporary employee is working against permanent post without his proper appointment, he could not be treated as permanent employee because of the said post on which he was allegedly working, as such, the appellant himself is not definite about the status of the service. In absence of any documentary evidence showing the nature of the duties of the appellant as permanent and denial of the respondent regarding the permanent status of the service of the appellant, it could not be held that the appellant was the permanent employee of the respondent. The learned lower Court, therefore, rightly observed that the service of the appellant was not governed under the provisions of I.R.O., 1969 and his service was temporary on work charge basis, therefore, his petition before it was not maintainable. I, therefore, do not find any illegality or infirmity in the order passed by the learned lower Court. The appeal has, therefore, no merit and the same is hereby dismissed. The case-law relied upon by the learned counsel for the appellant, in my humble opinion is distinguishable in the circumstances of the case in hand and are not applicable. H.B.T./M-172/K Appeal dismissed.