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Petitioner: TEHSIL MUNICIPAL OFFICER VS Respondent: AMJAD HUSSAIN and 2 others
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: TEHSIL MUNICIPAL OFFICER vs AMJAD HUSSAIN and 2 others Case No.: W.Ps. Nos,2667, 2668, 19676, 14637 of 2012, 39166 and 39357 of 2015 Date of Judgment:2016-11-28 Reported As: 2018 PLC 1 Result: Petition dismissed
JUDGMENT
JUDGMENT SHUJAAT ALI KHAN, J.-- Through this single judgment I intend to decide the petitions mentioned in Schedule-A and Schedule-B, given below, having commonality of law and facts. Sr. No,Case No, Date of impugned judgment rendered by Punjab Labour Court No,7, Gujranwala.Date of impugned judgment rendered by Punjab Labour Appellate Tribunal, Lahore. W.P.No,2667/2012 (this petition)15.10.2011 20.12.2011 W.P.No,2668/2012 15.10.2011 20.12.2011 W.P.No,39166/2015 26.11.2014 09.02.2015 W.P.No,39357/2015 20.02.2013 14.02.2015 Sr. No,Case No, Date of impugnedDate of impugned judgment rendered by
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judgment rendered by Punjab Labour Court No,2, Lahore.Punjab Labour Appellate Tribunal, Lahore. W.P.No,14637/2012 31.01.2011 08.05.2012. W.P.No,19676/2012 31.01.2011 08.05.2012. 2. Shorn of unnecessary details, private respondents (employees) in petitions enumerated in Schedule-A were appointed against different posts on Daily Wages. As despite serving the department (TMA) for many years their services were not being regularized, they filed Grievance Petitions before Punjab Labour Court No,7, Gujranwala which were allowed on the dates mentioned in column No,3 of Schedule-A against which the department filed independent appeals before the Punjab Labour Appellate Tribunal, Lahore (the Tribunal) but without any success as the same were dismissed through judgments passed on the dates mentioned in column No,4 of Schedule-A. Insofar as petitions figuring in Schedule-B are concerned, Tariq Amanoil (employee), petitioner in W.P. No,19676/2012, filed Grievance Petition before Punjab Labour Court No,2, Lahore against termination of his services. During pendency of proceedings before the Labour Court, Town Municipal Officer concerned entered appearance and gave statement to the effect that if Tariq Amanoil relinquished his claim qua back benefits the department would have no objection against his reinstatement in service. The offer made by the departmental representative was accepted by Tariq Amanoil and the Grievance Petition filed by him was disposed of through order, dated 05.11.2008. Instead of reinstating Tariq Amanoil in service, the department issued a letter appointing him on Daily Wages afresh for 89 days w,e,f, 21-07.2009. As the departmental authorities did not abide by their commitment given before the Labour Court, the petitioner filed a Petition before the Labour Court for implementation of order, dated 05.11.2008 which was disposed of on 02.11.2009 directing the departmental authorities to implement order, dated 05.11.2008, within one month. Again instead of complying with the order dated 02.11.2009, the departmental authorities filed an appeal before the Tribunal which was disposed of with the observation that the Tribunal had nothing to do with the implementation of the order passed by the Labour Court. Thereafter, Tariq Amanoil filed second petition for implementation of orders, dated 05.11.2008 and 02.11.2009 which was disposed of by the labour court through order, dated 31.01.2011, with the observation that as services of Tariq Amanoil had already been restored, order dated 05.11.2008 stood complied with. Being dissatisfied with order dated 31.01.2011, Tariq Amanoil filed a revision petition before the Tribunal seeking declaration to the effect that he be treated as regular/permanent employee in terms of order dated 05.11.2008. The said revision petition was accepted by the Tribunal vide judgment, dated 08.05.2012, declaring him as permanent employee but no order regarding back benefits was passed by the Tribunal. Being aggrieved of non-awarding of back benefits by the Tribunal, Tariq Amanoil has filed W.P. No,19676/2012 whereas the department has put a challenge to orders dated 31.01.2011 and 08.05.2012 passed by the Labour Court and the Tribunal respectively through W.P.No,14637/2012 subject matter of Schedule-B. 3. Dr. Ehsan ul Hach Advocate assisted by Mr. Muhammad Arif, Legal Advisor TMA in support of this petition as well as W.Ps. Nos,39166/2015, 14637/2012, 39357/2015 and 2668/2012 and while opposing W.P. No,19676/2012 submits that both the fora below failed to consider that as terms and conditions of the employees were governed under the Punjab Local Councils Servants (Service) Rules, 1997 (hereinafter to be referred as the Service Rules, 1997) jurisdiction of the Labour Court was not attracted; that as neither T.M.A. falls within the definition of industry nor commercial establishment the work-charge employees could not approach any forum established under the Labour Laws;
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that Zamir Ali, respondent No,3 in W.P. No,39166/2015 was never appointed as Tubwell Operator rather he was working as Water Carrier but the Labour Court has ordered the department to regularize his services as Tubewell Operator; that the employees being daily wagers were not entitled for regularization mere on account of length of their service; that the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be referred as the Ordinance, 1968) were not attracted in the cases filed by employees before the Labour Court; that the Tribunal dismissed appeals filed by the department on the point of limitation thus the merits of the cases were not dilated upon. In support of his contentions, learned counsel has relied upon the cases reported as Tehsil Municipal Officer TMA Kahuta and another v. Gul Fraz Khan (2013 SCMR 13) and Province of Punjab and 3 others v. Gul Hassan and 33 others (1992 PLC 924). 4. Raja Kamran Aslam, Advocate while opposing the submissions made by learned counsel representing TMA and in support of W.P. No,19676/2012 submits that as order, dated 05.11.2008, was passed in view of the statement by the Tehsil Municipal Officer, the departmental authorities were bound to reinstate him in service on regular basis from the said date; that mala fide on the part of the departmental authorities is manifest from the fact that in utter disregard to the spirit of order dated 05.11.2008 they re-appointed Tariq Amanoil on daily wages for 89 days; that though the Labour Court was bound to ensure implementation of orders, dated 05.11.2008 and 02.11.2009, but while deciding second petition filed by Tariq Amanoil for implementation of above orders the Labour Court illegally and unlawfully observed that as he was reinstated in service order dated 05.11.2008 stood implemented; that though the Tribunal while disagreeing with the findings of the Labour Court contained in order, dated 03.01.2011, declared Tariq Amanoil as permanent employee w,e,f, 05.11.2008 but did not pass any order regarding back benefits and that statement of Tariq Amanoil regarding relinquishment of his back benefits was in line with the statement made by the Tehsil Municipal Officer before the Labour Court during the proceedings in the Grievance Petition filed by him, therefore, the same could not be used against him in the subsequent proceedings. 5. Mr. Sheraz Faiz Bhatti, Advocate in addition to adopting the arguments advanced by Raja Kamran Aslam, Advocate while controverting the stance of TMA that Zamir Ali (respondent No,3 in W.P. No,39166/2012) was never appointed as Tubewell Operator, states that the said contention of the learned counsel stands nullified from the contents of the affidavit tendered by Zamir Ali in evidence as well as salary slips and order, dated 22.04.2011, issued by the T.M.O. Gujrat and those which were got exhibited as Exh.P/7 to Exh.P/12 and that TMA has concealed material facts from this Court as the documents of their choice have been appended whereas those adversely affecting their case have been withheld. 6. Mr. Zafar Iqbal Sial, Advocate, representing respondent No,1 in this petition submits that neither the department nor the designation is relevant to determine as to whether a person falls within the definition of workman or not rather the duties being performed by such person are of vital importance and that as the employees are performing duties of manual nature the jurisdiction of the Labour Court was aptly attracted. Relies on National Bank of Pakistan and another v. Anwar Shah and others (2015 SCMR 434) and Pakistan Telecommunication Company Limited (PTCL) through General Manager and 2 others v. Azeem Kibria Bhatti and 2 others (2016 PLC 491). 7. I have given anxious consideration to the legal formulations put forward by learned counsel for the parties in support of their respective pleas in addition to scanning the documents annexed with this petition as well as the case-law cited at the bar. 8. The foremost question involved in the present case is as to whether the employees could approach the Labour Court or not. While arguing the said point, learned counsel representing the TMA, while referring to the Service Rules, 1997 has relied upon the first proviso to section 1(4) of the Ordinance, 1968 which for convenience of reference is reproduced herein below:--
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"Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." From the afore-quoted proviso it is obvious that applicability of said proviso is subject to two conditions viz. the industrial and commercial establishment is being run under the authority of the Federal or a Provincial Government and the terms and conditions of service of its employees are being governed under the statutory service rules. Firstly, taking up the preposition as to whether the Tehsil Municipal Administration is carrying on its business under the authority of the Federal or any Provincial Government I am of the view that to resolve the said controversy a bird's eye view of the legislative pieces which were introduced from time to time to streamline the affairs of the local government is inevitable. The Service Rules, 1997, being pressed into service by the learned counsel for the TMA, were framed in terms of section 167 of the Punjab Local Government Ordinance, 1979 (the Ordinance, 1979). The said enactment was succeeded by the Punjab Local Government Ordinance, 2001 (the Ordinance, 2001). According to section 42-A(8) of the Ordinance, 1979 the Board was declared a body corporate having perpetual succession and a common seal with power to acquire hold and transfer property, moveable and immovable, and shall, by its name sue or be sued. Further, as per section 42-B(4) of the Ordinance, 1979, the Punjab Local Government Board was empowered to recruit, appoint, transfer or to take disciplinary action in respect of any member of the Punjab Local Council Service without any intervention either by the Federal or a Provincial Government. Furthermore, the Board was vested with the jurisdiction to employ officers and servants on the terms and conditions of its choice without intervention of the government. It is imperative to note that Tehsil Municipal Administration was created by virtue of section 49 of the Ordinance, 2001 according to which Tehsil Municipal Administration was also declared a body corporate. The ultimate result of the discussion, undertaken in this paragraph, is that TMA being an independent entity does not carry its business under the direct authority of Federal or a Provincial Government thus the same is not covered under the proviso referred supra. In this regard, I also stand guided by the law laid down in the cases reported as Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 SC 207), Agriculture Workers' Union Balochistan v. The Registrar of Trade Unions and others (1997 SCMR 66), Lahore Development Authority and others v. Abdul Shafiq and others (1992 PLC 1214) and The Management of Municipal Committee Mianwali v. The General Secretary, Municipal Muharrir's Union and another (PLD 1968 Lah. 395). 9. Now taking up second limb of the controversy as to whether the services of the employees having been controlled under the Service Rules, 1997 they were debarred to approach the Labour Court, I am of the view that there is no cavil with the preposition that the Service Rules, 1997 are statutory in nature but the question is as to whether the same are applicable to the employees before this Court or not. To satisfy myself I have gone through the Service Rules, 1997 which are silent about the recruitment of daily-wage employees inasmuch as neither any via media for induction of such persons has been laid down nor there is any mechanism for their regularization. Further, According to section 2(mmm) of the Ordinance, 2001, a workman includes a worker as defined in the Punjab Industrial Relations Act, 2010. Moreover, this issue has already been put to rest by the apex Court of the country in the case reported as Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547). In the said case while clinching the issue under discussion, the august Supreme Court has inter-alia concluded as under:- "5. Similarly, there are so many other such like persons who are working in different organizations of Punjab Building Department for the last so many years but as work-charged employees, although the nature of job assigned to them has been continuing for more than the period of 9
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months in terms of paragraph 1(b) of the Schedule attached to the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, which provides as under:-- "(b) 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, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary course 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." Learned counsel relied upon the judgment in Gul Hassan's case (ibid), relevant para wherefrom is reproduced hereinbelow:-- ' "4. Rules 1.107, 1.108 of the Buildings and Roads Department Code(sic.) deal with the working conditions of work-charge establishment in extenso. In view of such statutory rules being in existence and applicable to the respondents, the application, invocation and reference to the provisions of the Standing Orders Ordinance was out of place and misdirected. The work-charged establishment cannot be declared permanent under the rules applicable to them, nor can they be granted all the benefits available to the permanent employees including seniority, promotion and service being treated as pensionable etc." 6. In the above judgment it has been held that work-charged employees are working in the establishment of State Administration, therefore, they are not governed by Standing Orders Ordinance, 1968. The said judgment is distinguishable because it was not decided on merit rather disposed of on the ground that circular was issued mentioning therein that employees not exceeding 50% of the work-charged establishment were to be so absorbed starting without those who have rendered the longest service on work-charged established. It was also observed therein that in such circumstances, the employees have to seek absorption on their own turn and in terms offered by the Government and not through Constitutional jurisdiction. " If the matters of the employees are considered on the touchstone of the afore-quoted judgment there leaves no ambiguity that the employees being workmen on the dint of the duties being performed by them, they were governed under the principle of master and servant, thus, their petitions before the Labour Court were rightly held maintainable. It is very interesting to note that on the one hand the TMA authorities have objected against the jurisdiction of Labour Court on the ground that the terms and conditions of service of the employees were governed under statutory rules and on the other, during the course of cross- examination Tariq Javed (RW-1) showed his inability to specify the service regulations applicable to the employees rather he stated that in this regard only the Advocate would be in a better position to clarify. He further admitted that Amjad Hussain (respondent No,1 in this petition) was serving the department since the year 1987. The Hon'ble Supreme Court of Pakistan, in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), while taking serious note of the non-regularization of daily-wage employees by the government institutions, despite their length of service spreading over many years, has inter-alia observed as under: "15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees
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so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right." (emphasis provided). 10. The next crucial point involved in these petitions is as to whether TMA falls within the category of industrial or commercial establishment as defined under the Ordinance, 1968 or not. In this regard, I am of the view that to resolve the said controversy a survey of Labour Laws introduced by the Legislature from time to time is vital. Firstly, taking up the Ordinance, 1968 I have observed that according to section 2(i) of the said Ordinance "workman" means "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical work for hire or reward". The expression "establishment" has been defined in clause (1)(v) of section 2 of the Ordinance, 1968 as "the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry". Further, as per section 2(bb) of the Ordinance, 1968 the expression "construction industry" means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam; viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundations of any such work or structure". In the Factories Act, 1934, in section 2(h) thereof, the word "worker" has been defined as "a person employed directly or through an agency whether for wages or not in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on". On the touchstone of the various definitions, discussed in foregoing lines, I venture to have cursory glance over the functions of TMA. Section 54 of the Ordinance, 2001 deals with functions of TMA, which for convenience of reference is reproduced herein below:- 54. Functions and powers of the Tehsil Municipal Administration.---(1) The functions and powers of the Tehsil Municipal Administration shall be to--- (a)prepare spatial plans' for the tehsil in collaboration with Union Councils, including plans for land use, zoning and functions for which the Tehsil Municipal Administration is responsible; (b)seek approval of the Tehsil Council to the spatial plans prepared by it after due process of dissemination and public enquiry, incorporating modifications on the basis of such inquiry; (c)execute and manage development plans; (d)exercise control over land-use, land-subdivision, land development and zoning by public and private sectors for any purpose, including for agriculture, industry, commerce markets, shopping and other employment centers, residential, recreation, parks, entertainment, passenger and transport freight and transit stations; (e)enforce all municipal laws, rules and bye-law governing its functioning: Provided that the Tehsil Municipal Administration may, with the approval of Tehsil Council, exempt any Union from application of any specific provision of the bye-laws made by the Tehsil Council under this Ordinance: 'Provided further that the Government may, on the recommendations of Tehsil Municipal Administration through District Government, exempt any Union or a part thereof from the application of rules relating to land use, building control, tax on property or in any other matter
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dealing with municipal services: Provided also that such exemption shall not extend to any organised housing schemes, zoning of industrial and commercial areas, and matters concerning environmental protection; prevent encroachments; (g)regulate affixing of sign-boards and advertisements; (h)provide, manage, operate, maintain and improve the municipal infrastructure and services, including-- (1) water supply and control and development of water sources, other than systems maintained by the Union and Village Councils; (ii)sewage and sewage treatment and disposal; (iii)storm water drainage; (iv)sanitation and solid waste collection and sanitary disposal of solid, liquid, industrial and hospital wastes; (v)roads and streets, other than roads falling under the jurisdiction of, and maintained by, the District Government or Government and streets maintained by the Union. Administration or Village Council; (vi)traffic planning, engineering and management including traffic signaling systems, signs on roads, street markings, parking places, transport stations, stops, stands and terminals; (vii)street lighting; (viii)firefighting; (ix)parks, playgrounds, open spaces and arboriculture; and (x)slaughter houses; (i) compile information provided by Union and Village Councils of prioritized projects in the tehsils; (i) prepare budget, long term and annual municipal development programmes in collaboration with the Union Councils, under the directions of Tehsil Nazim; (k) maintain, with the assistance of the District Government, Union and Village Councils, a comprehensive data base and information system for Tehsil Municipal Administration and provide public access to it on nominal charges; (I) propose taxes, cesses, user fees, rates, rents, tolls, charges, surcharges, levies, fines and penalties under Part-III of the Second Schedule for approval of the Tehsil Council and notify the same after such approval; (m)collect approved taxes, cess, user fees, rates, rents, tolls, charges, fines and penalties; (n)organize sports, cultural, recreational events, fairs and shows; (nn) organize cattle fairs and cattle markets; (o)co-ordinate and support municipal functions amongst Unions and Villages; (p)regulate markets and services and issue licenses, permits, grant permissions and impose penalties for violation thereof as and where applicable; (q)manage properties, assets and funds vested in the Tehsil Municipal Administration; (r)develop and manage schemes, including site development in collaboration with District Government and Union Administration; (s)authorise an officer or officers to issue notice to a person committing any municipal offence and initiate legal…
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