1997 PLP 410 (PLC)

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑ ‑‑‑‑S.O. 1(b)‑‑‑Permanent workman‑‑‑Employee who worked on a work charged vacant post of Coolie for a period of about five years, was not considered as 'permanent workman' on the ground that he was appointed as a lineman as a stop‑gap arrangement against leave vacancy‑‑‑Mere insertion of phrase in order of appointment of employee to the effect that "it was a stopgap arrangement and appointment was liable to be terminated at any time without any notice or assigning any reason therefore", would not be enough to displace claim of employee that he had attained status of permanent workman‑‑‑Employee who had been in service for a period exceeding nine months, had acquired status of permanent workman under provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and would also be entitled to protection and safeguard postulated by Labour Laws and his services could not be terminated except in due process of law. Kh. Tariq Masood for Appellant. Inam‑ul‑Islam for Respondent. Date of hearing: 30th October, 1996. By the decision dated 19‑2‑1996, Mian Abdul Qayyum, Presiding Officer, Punjab Labour Court No.l, Lahore has dismissed the grievance petition filed by Mumtaz Ahmad, I under. section 25‑A of the Industrial Relations Ordinance, 1969, 'Authorities' of the Telephone Department being the respondents. He has come up in appeal to this Court, preferred under section 37(3) of the Ordinance.

2. Mumtaz Ahmad was employed against a work‑charged vacant post of Cooly, and he worked for a period of about five years, it is so stated by him, in the grievance petition filed in the Labour Court on 10‑1‑1993. On 18‑3‑1992 he was appointed as a Lineman, in BPS‑4 against the leave vacancy of one Muhammad Riaz Lineman, who had proceeded on leave for 730 days. He thus pleaded having acquired a right to continue in that capacity, but his services were terminated on 10‑10‑1992, as being no longer required; but once again he was employed as Cooly on daily wages on 11‑10‑1992. He is presently working as a Cooly. He served a grievance notice on his employer (Exh. P‑3) on‑ 7‑12‑.1992. The respondent did not accept his claim of having attained permanent status as lineman, entitled to be retained on that post. The learned Labour Court has endorsed the view point of the establishment, by referring to 1993 PLC 393 (Karachi High Court) and 1990 SCMR 1539, and quoting an observation of the august Supreme Court of Pakistan, in para. 9 of the judgment. I, however, find myself in least agreement with the reasoning recorded by the learned lower Court. Even the Supreme Court has pronounced that status of a person as a permanent workman has to be adjudged, with reference to the nature of the A work he has been doing. If the same is not of permanent nature, howsoever long may be the period of employment, the employee cannot be classified as a permanent workman. Statement of an Officer of the establishment, who has appeared as R.W. 1 in the lower Court appears to be of immense importance, although as indicated by the document Exh. P‑1, Mumtaz Ahmad had been appointed as a lineman in BPS‑4, as a stop‑gap arrangement, against the leave vacancy that occurred on one Muhammad Riaz Lineman proceeding on long leave. Mere insertion of the phrase in the order of appointment, "it is a S stop‑gap arrangement and the appointment is liable to be terminated at any time without any notice or assigning any reason therefore", would not be enough to displace the claim of the employee. It has become customary with Government Departments, as also industrial establishments, to adopt this terminology, with a view to escape their liabilities and to defeat the claims of the employees, in making assertion to enjoy the vested rights to remain in service, not liable to ouster, in an arbitrary and summary fashion. Abdul Qayyum, Assistant Engineer, Phones has deposed as P.W. 1 that persons with shorter length of service had been regularized in service, the post against which Mumtaz Ahmad had been employed as a lineman was of permanent nature, and when his services as lineman were dispensed with, posts of Coolies and Linemen were in existence. Even the appointment order dated 28‑3‑1992 (Exh. P‑1) makes mention of the fact that Mumtaz Ahmad was the senior‑most Cooly. Mumtaz Ahmad as P.W. 1 has also deposed that he had, qualified the examination held for promotion as Lineman in the year 1992. It is also to be noted that there had taken place no break in his service, as he ceased to be a Lineman on 10‑10‑1992, whereas on the very next day he was shown to have been re‑employed, once again, as a cooly.

3. The post of coolly, Mumtaz Ahmad has held for a number of years, and by nature of the duty, he was performing, he was to be regarded as a workman. Since he has been in service for a period exceeding nine months, he had acquired the status of a permanent workman, under the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Well, then, he was also entitled to the protection and safe guards postulated by the Labour Laws; and his services could not be terminated, except in due process of law, i.e. on tile ground of misconduct, and the prescribed procedure, as is well‑known was issuance of a show‑cause notice and a charge‑sheet, followed by a regular enquiry. This course was admittedly not followed, and the appellant thus had a right to have recourse to the Labour Court, for redress of his grievance. It has been pointed out by 'the learned counsel for the respondent that minimum qualification for appointment as a Lineman was Matriculation. This may be true, in case of initial and direct appointment as Lineman, but a departmental candidate, on the strength of length of his service, and seniority, and on qualifying the departmental examination, could not be prevented from claiming promotion as a Lineman. As already said, mere description of the posting as a temporary one, or having been made as a stop‑gap arrangement, would not divest the worker of his statutory right.

4. I would, as such, accept the appeal and set aside the impugned order of the Labour Court. The appellant is in service, but has been forced to work as a Cooly on daily wages. This would be too much on the part of the 'Authorities', who are bent upon treating him as a Cooly, and that too on daily wages, although he has served the department for several years. He shall be treated as a permanent employee and promoted as a Lineman and treated so ever since 28‑3‑1992, when he was initially appointed as a Lineman, even though against a leave vacancy, the reason being that according to the department's own witness, a responsible officer, the vacancy of Lineman had not become non‑existent. Arrears shall be calculated and paid to the appellant; but there shall be no order as to costs of this litigation. H.B.T./842/Lb.P Appeal accepted.