1998 PLP 485 (PLC)

SYED DEEDAR HUSSAIN SHAH, J.

Case of the respondent No.2 in brief is that he was employed by the petitioner on 18-10-1989, initially for 89 days but he continued to work up to 26-2-1990, when his services were terminated without written order. He allegedly served grievance notice upon the petitioner and then filed grievance petition before the learned Labour Court IV, Karachi. The grievance petition was resisted by the petitioner on the ground, inter alia, that no grievance notice was served and the respondent himself deserted his services. The petitioners through their reply statement, filed before the learned Labour Court, contended that the same was not maintainable for want of service of grievance notice and that the respondent was appointed as casual temporary worker and no understanding was given to the respondent by any one from the petitioner that he would be allowed to continue in service after 89 days as worker on which the respondent was appointed on temporary basis. However, the same could not be completed within the stipulated time as such it was extended up to 31-3-1990 and in the manner temporary employment of the respondent also continued.. Respondent himself stopped coming on duty from 26-2-1990. Before the learned Labour Court the respondent in support of his application filed affidavit-in-evidence and also examined Nazir Jan. The petitioner also filed affidavit of Muhammad Anwar Ansari, their Manager Administration. The witnesses were duly cross-examined by the learned counsel for the parties. After conclusion of the matter the learned Labour Court dismissed the application of the respondent vide order dated 13-2-1991. Respondent being aggrieved and dissatisfied with the said judgment preferred an appeal before the learned Labour Appellate Tribunal at Karachi. The learned Labour Appellate Tribunal was pleased to set aside the judgment of the Labour Court and the respondent was ordered to be reinstated in service within one month with full back benefits vide judgment dated 12-8-1991. Being aggrieved and dissatisfied with the above judgment the petitioner has filed the present Constitutional petition. Mr. Nadeem Azhar, learned counsel for the petitioner, contended that the learned Labour Appellate Tribunal has not properly considered the provisions of law. That on the face of record the sanction letter of appointment of respondent Azharul Mulk clearly shows that he was appointed as temporary/casual worker for 89 days only and terms and conditions of his employment were fully spelled out in the sanction letter of his appointment which is Annexure ' A' to the petition. That the decision of the learned Sindh Labour Appellate Tribunal is contrary to the evidence on record and suffers from patent illegality. That the learned Sindh Labour Appellate Tribunal has also erred in law in deciding that the services of respondent No.2 cannot be terminated except after an enquiry under Standing Orders, 1968. Mr. Nadeem Azhar, learned counsel for the petitioner, referred 1990 SCMR 1539 (Muhammad Yaqoob v. The Punjab Labour Court No.1, and 5 and others). It would be pertinent to refer Standing Order 1(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which reads as under: "(e) A 'temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months." In the case in hand the respondent was appointed as temporary/casual worker vide order dated 18-10-1989 which is Annexure ' A' to the petition which reads as under:-- "The Managing Director has ordered to engage the following personal on retainership/daily wage basis. He may be engaged as temporary/casual worker for a period of (89) eighty-nine days on a monthly consolidated salary noted against each: No. Name/Father's Name Monthly consolidated Salary Azharul Mulk s/o Muhibullah Rs.1,200 (skilled worker)

2. It is requested that necessary action in the matter may kindly be taken at your end under intimation to us. The services of the above named personnel may be terminated before completion of 89 days. In case their/his/her services are required beyond 89 days they/he/she may be asked to submit another application. Thereafter, approval of the competent Authority i.e. the concerned Director may be obtained. The application are/is sent herewith. " We have gone through the material placed with the case and we have also minutely perused the provisions of West Pakistan (Standing Orders) Ordinance and the authority of their lordships of Supreme Court. We would like to discuss the facts of 1990 SCMR 1539 referred to hereinabove by the learned counsel for the petitioner, as under:-- The facts of this case are that the petitioner was employed as a Mate Mali in the Lahore Development Authority and served on the work-charge establishment for eight years. While his grievance petition alongwith others was pending in the Labour Court, the services of the petitioner were terminated and he challenged the termination order. The Labour Court considering the eight years of his services, declared that he was working against a permanent post and was a permanent employee of the Lahore Development Authority, Lahore. Against this decision the appeal was preferred before the Appellate Court and the judgment was reversed. Learned Lahore High Court in Constitutional jurisdiction refused to interfere, as a finding of fact had been recorded which was not shown to suffer from any legal infirmity. Therefore, the petitioner approached the apex Court. Their Lordships of the Supreme Court refused to grant leave to appeal by observing as follows:-- "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 the work." We have also perused the order of the learned Sindh Labour Appellate Tribunal, wherein reference has been made to the term/word 'employer' as having been defined in section 2(viii) of Industrial Relations Ordinance, 1969, whereas the learned Sindh Labour Appellate Tribunal has completely ignored the classification/definition of "workmen" specially a temporary workman, under which proviso the case of the respondent No.2 very rightly fails. The observation of the learned Appellate Tribunal that services of the respondent cannot be terminated except after inquiry under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is also not tenable, inasmuch as that the respondent No.2 was not appointed as permanent worker by the petitioner, who was initially appointed as temporary/casual worker for a fixed period which is clear from the sanction letter referred to hereinabove. Moreover, the respondent No.2 himself deserted his services which is borne out from the record and which has gone unchallenged during trial before the learned Labour Court. It will be pertinent to mention here that during the pendency of this petition new section 2-A has been inserted in the Services Tribunal Act, 1973, which reads as under:-- "2-A. Service under certain corporation etc. to be service of Pakistan.

Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act." We are of the view that in view of above-quoted provision for all purposes the case of the respondent No.2 stands abated and he ceases to be entitled to any relief from regular Courts. For the facts, circumstances, provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the dictum laid down by their lordships of Hon'ble Supreme Court in the, above-referred judgment (1990 SCMR 1539) which we respectfully follow, we allow this petition and set aside the order dated 12-8-1991 of the learned Sindh Labour Appellate Tribunal. On 2-4-1998 by a short order we had set aside the order of the learned Sindh Labour Appellate Tribunal and had allowed this petition. Above are the reasons for the same. H.B.T./P-50/K Petition allowed.