2013 PLP 13 (SCMR)

NASIR-UL-MULK, J.

Tehsil Municipal Officer, Tehsil Municipal Administration, Kahuta (hereafter referred as to the TMA, Kahuta) and another has filed this petition for leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench in Intra Court Appeal dated 16-5-2011, dismissing the petitioners' appeal and upholding the judgment of the learned Single Judge in Chambers, whereby the Constitution Petition of the respondent, Gul Fraz Khan, was allowed; he was declared to be a regular employee of the TMA Kahuta, which was also directed to pay to the respondent salary w.e.f. January, 2004.

2. The respondent had claimed that he was employed as Chowkidar in the office of the Executive Engineer, Public Health Engineering Department (PHED), since the year 1996 in Jewara Water Supply Scheme and that after devolution when the PHED had ceased to exist his services were transferred to the TMA Kahuta, which had been paying salary regularly until 2004. He further alleged that though he was still performing his functions as Chowkidar, he has not been paid salary. The learned Single Judge in Chambers as well as the Division Bench in Intra Court Appeal held the respondent to be a regular employee on the ground of continuous service of the respondent for 13 years, when the present petitioners had failed to produce any document to show that the respondent's employment was contractual.

3. During the course of proceedings, the learned counsel appearing for the petitioners had stated that the respondent never remained their employee and that he had initially been appointed in the PHED, which would be in possession of his service record. Since the PHED was not impleaded by the respondent before the High Court, we allowed the petitioners to implead the said Department as respondent. We directed the PHED to produce the service record of the respondent and had gone through the same with the assistance of the learned counsel for the parties.

4. The record shows that the respondent was employed by the PHED on work charge basis on 1-7-2001 initially for a period of three months and his employment was extended at regular intervals for three months at a time until 31-3-2002. By Notification dated 22-5-2002 the Government of Punjab declared that the Executive Engineer (PHED) at District level shall cease to function by 30-6-2002 and that the TMA Kahuta shall succeed to their assets, liabilities and offices. The respondent had placed on record the documents and receipts in order to show that he remained as Chowkidar in employment of the TMA Kahuta after devolution till the year 2004. These documents, however, clearly indicate that his employment with the TMA Kahuta was also on work charge basis and was paid for the work he performed. The respondent's employment whether with the PHED or with the petitioners remained on work charge basis. He was never appointed as regular employee and his employment as work charge, whatever its length of period, would not accord him the status of regular employee. We also noted that his very Constitution Petition suffered from laches, filed in the year 2006 when upon his own showing he was not paid salary since the year 2004.

5. The Single Judge in Chambers as well as the Division Bench of the High Court had erred in holding the respondent as regular employee simply on account of failure of the petitioners to show that he was appointed on work charge or contractual basis. It was for the respondent to substantiate his claim of regular employment and the same cannot be deemed to have been established on failure of the petitioners to prove to the contrary. The respondent was initially appointed in the PHED which was in possession of the service record of the respondent. The PHED was not made a party by the respondent in the petition before the High Court. Had the High Court summoned the service record of the respondent from the office of the said Department they would have discovered that the respondent never remained regular employee of other either of the two Departments in question.

6. For the above reasons we hold that the respondent was regular employee of neither the PHED nor the TMA, Kahuta. Resultantly, the petition is converted into appeal and allowed. The impugned judgments are set aside and the Constitution Petition by the respondent before the High Court stands dismissed. MWA/T-5/SC Petition allowed.