1994 PLP 56 (PLC)

All these petitioners were working with the respondent establishment for a number of years. Naeem Ansari alleges to have been in their employ for, about 6 years, S.M. Najaf Hussain Rizvi and Wasim Ahmed for about 9 years, Haroon Rasheed for about 8 years, S'. Irshad Hussain for about 13 years, Muhammad Saghir for about 10 years, Muhammad Masood for about 8 years and Shaukat Hussain for about 8 years. Their case was that they were employed as daily‑rated workers. Later on they were given appointments on contract basis which had been extended from time to time and though working uninterruptedly for years together they have been denied their proper pay, allowances and other advantages which are available to the permanent workmen of the respondent establishment. Time and again they had tried to draw the attention of the respondents but they had failed to rectify their wrong with the result that they had to serve grievance notices, which was later on backed up by petitions.

2. In the written reply it was asserted that they had been working purely on temporary/contract basis from time to time and the applications were not maintainable. These were also barred by time.

3. The petitioners were their own witnesses and Muhammad Aslam, Manager Planning and Installation appeared on behalf of the respondents.

4. The Labour Court found both the issues in favour of the petitioners and ordered that each one of them was entitled to be treated as a permanent workman with all the rights and benefits of the permanent workmen, from the date he had completed 9 months in the respondent's Establishment.

5. As for the bar of limitation the contention of the respondent is that though they had been drudging for years at a stretch, they were being treated and paid, only as temporary workmen sans proper pay, allowances, leave facilities and other fringe benefits. Their deprivation would therefore constitute continuing injury, providing recurring cause of action every month. It is an axiomatic principle of law that nobody can take advantage of his own wrong (nubus commodum capers protest de injuria). The contention must prevail as the objection is simply specious. (See Mubashir Ahmad and others v. Messrs Pakistan Steel Mills Corporation Ltd., Appeals Nos. KAR‑165 to 169 decided on 7‑9‑1988).

6. As for merit the respondents in their evidence reiterated their averments as to be found in the petitions. The appellants notwithstanding their prevarication, hesitancies, and even outright. disclaimers in the Written Statements, had to admit the correctness of their stand. Muhammad Aslam, Manager (Planning and Installation) in unequivocal terms owned in all these petitions that they "did not dispute the date of appointment of applicants as shown in Annexure‑A to the Affidavit". These range between 6 years to 13 years. However, in spite of all this span of unbroken employment, they were denied all their lawful rights.

7. Given that the respondents were working as mechanics or helpers in the Installation Section of the Telephone Exchanges, without a single day's break for a period beyond 6 years which is the minimum period of any respondent before us, the question is whether they can be deemed to be temporary?

8. That will take me to the definition of a temporary and a permanent workman.

9. According to Standing Order (1)(e) "A temporary workman is a workman who has been engaged for work which is an essentially of temporary nature likely to be finished with him a period not exceeding 9 months". ,

10. A permanent workman as defined in Standing Order (1)(a) is a workman who has been engaged on work of permanent nature likely to last more than 9 months and has satisfactorily completed a probationary period of three months etc. ‑‑‑"

11. According to the Oxford Dictionary the word "temporary" means, lasting for a limited time, existing or valid for a time (only) not permanent; transient, made to supply a passing need". It defines the word "permanent" as "continuing" or designed to continue indefinitely without change, abiding, lasting, enduring persisting.

12. Telephones are no more a luxury, specially for a Metropolitan City like Karachi (with which we are dealing) with its distances and hectic pace of life. The flighty moods and vagaries of its performance need permanent care and attention of its staff. The installation and Exchanges are also on the increase. Old systems of working are yielding to never technology. All this means that the workmen have to be on their tip‑toes day in and day out. It will be really courageous for any one to contend that the nature of the respondents' job was temporary or likely to be finished within the foreseeable future. To assert so, will be too much of a demand on our credulity. The reference to the case of Pakistan International Airlines v. Sindh Labour Court No. 5 and others (PLD 1980 SC 323) is therefore misconceived.

13. We have not been told what were the emergent demands for these so-called temporary appointments, and it could not simply be told. Still to maintain that these were temporary is nothing but mere juggling with words, signifying nothing.

14. It is true that the onus was on workers to show that the assignment "vas of a permanent nature. They have not only asserted so, but this has been admitted even by the only witness produced by the appellants namely Muhammad Aslam, their Manager.

15. There can be no manner of doubt that they have worked for the appellant without a single day's break for years together. The respondents as found by the learned Labour Court were therefore entitled to all the benefits, pay and allowances available to the workmen of Grade ‑ IV in the appellants' establishment.

16. In the result I will uphold the impugned orders and dismiss the appeals. H.B.T./2247/Lb.S Appeal dismissed.