2011 PLP 214 (PLC)

ABDUL AZIZ KUNDI, J.

Muhammad Riaz appellant, who was petitioner in his petition under section 46, Industrial Relations Ordinance, 2002, before Labour Court, Peshawar and aggrieved by the judgment and order dated 19-10-2005, passed by Presiding Officer, Labour Court, Peshawar, dismissing his grievance petition has questioned the same through the instant appeal.

2. Petitioner-appellant, on 6-9-2005, filed Grievance Petition under section 46, Industrial Relations Ordinance, 2002, against General Manager, Pakistan Railways and others, the respondents, stating therein that he was appointed as Naib Qasid on 24-10-1985, but since August, 1993 performing the duties of a driver of Ambulance in his own pay and scale and that through impugned orders bearing No.220-E/Staff/Car-2001 dated 2-7-2005 and No.941-E/1/PSC/P-1 dated 18-7-2005, passed respectively by General Manager Personnel and DPO Peshawar, whereby persons much junior to him were regularized as vehicle drivers in Scale-5 by ignoring the petitioner-appellant, who was senior to the said persons and had been performing his duties as such since August, 1993. The prayer made in the said petition by the petitioner appellant reads as under:

"That on acceptance of this grievance petition the secured and guaranteed rights of the petitioner be enforced to the effect that impugned regularization order be declared illegal, unlawful, void and ineffective and petitioner be regularized as driver ahead of his juniors and arrears of pay in pay scale since utilization be paid to him with such other relief as may deem fit in the circumstances of the case. May also be granted."

3. Respondents on being summoned entered contest through their written statement, whereafter parties led their evidence and then Presiding Officer of the Labour Court through his impugned judgment/order dated 19-10-2005, proceeded to dismiss the Grievance Petition of the petitioner-appellant, holding that no secured and guaranteed rights of the petitioner-appellant have been violated and thus he has no cause and that question of discrimination does not arise at all. The instant appeal is directed against the said judgment and order of the Presiding Officer, Labour Court.

4. In his evidence, petitioner recorded his own statement as P.W.l and produced order directing him to work as Ambulance Driver Exh.P.W.1/1, Exh.P.W.l/2 and Exh.P.W.l/3; Exh.P.W.1/4 is a letter by Divisional Medical Officer, Pakistan Railways, Peshawar, Exh.P.W.l/5 is the result of trade test of drivers and petitioner's name appear at S.No.10 of the said list. Exh.P.W.l/6 is the impugned order dated 12-7-2005, granting sanction for one time relaxation in educational qualification being under middle to the persons named therein. Exh.P.W.l/7 is the impugned order dated 18-7-2005, regularizing services of those other than petitioner-appellant. Exh.P.W.1/8 to Exh.P.W/1/10 are copies of grievance notices dated 8-8-2005, sent to all the respondents, while Exh.P.W.1/11 to Exh.P.W.l/13 are the postal receipts thereof. Exh.P.W.1/14 is a list containing particulars of vehicle drivers.

5. As against that, respondents produced Manzoor Ali, UDC as R.W.1, who besides his statement also tendered in evidence Exhs.R.W.1/1 to R.W.1/3, copies of restructuring of various divisions of the Pakistan Railways and R.W.1/4 dated 12-6-2004, a letter by Divisional Superintendent Pakistan Railways, Peshawar to G.M.(Operation) Pakistan Railways Headquarters Office, Lahore requesting for relaxation of the prescribed qualifications, mentioned against each in the attached Annexure and also requesting for regularization prescribed qualifications, mentioned against each in the attached Annexure and also requesting for regularization of their services. Ex.RW.l/5 is copy of Exh.P.W.l/6, while Ex.RW.l/6 is a statement showing list of employees, who are performing their duties as staff car drivers.

6. The Presiding Officer of the Labour Court, on conclusion of the trial, vide his judgment dated 19-10-2005, non-suited the petitioner-appellant by holding as under:-- "In these circumstances I hold that the petitioner has got no secured and guaranteed right under the law. He had not objected while he was utilized being Naib Qasid, as Ambulance Driver. Of course he will be given preference as and when new post of Ambulance Driver was sanctioned and the respondent categorically admitted that he will be regularized and he was recommended but at present there is no sanctioned post, therefore, he was not regularized. Thus no preferential rights accrued to him because he was being utilized as Ambulance Driver but at the same time he was not performing the duties of Naib Qasid. If he was performing both the duties then he was entitled to Additional Charge Allowance. But instead of Naib Qasid he was performing and his services were being utilized as Ambulance Driver. The strengths of other department were increased, therefore the other temporary utilized drivers were regularized against these posts and if the post as recommended, was sanctioned by the competent authority, definitely the petitioner was also be regularized. So the question of discrimination does not arise. At the time of his utilization as according to Exh.P.W.1/1 and Exh.P.W.l/2 he had not claimed any enhancement of pay or had not objected, therefore, he is also not entitled to any arrears in this respect because he had not performed the duties of Naib Qasid. In these circumstances I hold that the petitioner failed to prove his case and his petition is hereby dismissed." Arguments heard. Record perused.

7. It is not denied and is also evident from documents Exh.P.W.l/l, Exh.P.W.l/2 and Exh.P.W.l/3 that while posted as Niab Qasid in the respondents' establishment since 1985, appellant was directed to work as Driver on an Ambulance since August, 1993 and that per Exh.P.W.l/4 and Exh.P.W.l/5, he also qualified "Trade test of drivers" held in the year, 2003. Not only this, but even R.W.1 Manzoor Ali, who entered the witness-box on behalf of the respondents, admitted as under:

"It is correct that petitioner is being utilized as Driver since, 1994 on Ambulance without any break in the 3rd shift. It is correct that since 1994 when the petitioner is being utilized as Driver much earlier than the persons regularized namely, Aftab Hussain, Zahoor Ahmad, Zahid Hussain, Ali Akbar and Jamshed mentioned in Exh.P.W.1/6 and Exh.P.W.1/7" He also stated, "It is correct that giving sanction of posts is the prerogative and will of the employer and, as such, when the employer gives sanction, we will regularize the petitioner also. The petitioner will be utilized in his own pay and scale as driver on an Amublance till the job is there, meanwhile. 8. "Permanent workman" has been defined in clause (b) of Standing Order-I of the Schedule under section 2(g) of Industrial and Commercial Employment (Standing Orders) Ordinance 1968; which is reproduced hereunder:- "A 'permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months, including breaks due to sickness, accident, leave, lock out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment [and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months."

9. When the petitioner-appellant is working as Driver on an Ambulance in 3rd shift since August, 1993 and admittedly when there is no such person appointed as driver for the said shift on the Ambulance, therefore, after expiry of the period as required under the aforestated clause (b) of Standing Order-I (ibid), for all practical purposes petitioner-appellant would be entitled to be treated as a regular employee of the Railways Organization in his capacity as a driver of the Ambulance and thus entitled to all its consequential benefits. Though, he felt aggrieved when on his supersession others were regularized, but in fact the law, as aforestated, holds him entitled much earlier than that and thus while allowing this appeal, his grievance petition under section 46, IRO 2002, is accepted and the respondents are directed to treat him as a regular driver after his having completed the requisite period as a permanent driver under the aforesaid Standing Order and allow him all consequential benefits from the said date. Parties to bear their costs. Appeal allowed. H.B.T./405/P Appeal allowed.