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Petitioner: IKRAM BARI and 524 others VS Respondent: NATIONAL BANK OF PAKISTAN through
Court Name: Supreme Court of Pakistan Judge(s): Nazim Hussain Siddiqui, Abdul Hameed Dogar, Faqir Muhammad Khokhar Title:IKRAM BARI and 524 others vs NATIONAL BANK OF PAKISTAN through
JUDGMENT
Reported As: 2005 SCMR 100 Result: Order accordingly Judgment JUDGMENT: FAQIR MUHAMMAD KHOKHAR, J.---These petitions for leave to appeal, under Article 212(3) of the Constitution of Islamic Republic of Pakistan, by the Bank employees as well as by the National Bank of Pakistan (employer) are directed against common judgment dated 17-7-2003 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466R/CW/2002. 2. The petitioners/Bank employees were appointed on fixed salaries by the National Bank of Pakistan in various categories of Godown Staff such as temporary Godown Keepers/Chowkidars or on daily wages as Assistants, Cashiers, Steno-typists, Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers and Watermen etc. They continued in service for a number of years with short breaks in service from time to time without being regularized. The services of some of them were terminated. Therefore, they filed appeals before the Tribunal for regularization, or as the case may be, for reinstatement and regularization in service as permanent employees of the Bank.
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3. The Tribunal accepted most of the appeals of the Godown staff and the daily wages employees (petitioners in Civil Petitions No,1772, 1789 to 1795. 1839, 1840, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606/2003), by the impugned judgment, dated 17-7-2003, in terms of para. 10 thereof to the following effect:-- "Result of the aforementioned discussion is that the appeals shown at serial Nos. 1 to 240 filed for regularisation by the Godown Staff and the daily wage employees succeed and are accepted. The respondent-Bank is directed to regularize the services of appellants who have completed three years of service with breaks of not more than 15 days between any two consecutive appointments. The regularization exercise should be completed within five months of the receipt of this judgment. While admitting these appeals this Tribunal had passed orders restraining the respondent-Bank from passing any adverse orders against the appellants. Therefore if services of any of the appellants were terminated during the pendency of his appeal, the same being violative of the Tribunal's orders, stands set aside and the affected employee is reinstated in service and entitled to payment of salary for the intervening period." However, the appeals of the employees (petitioners in Civil Petitions Nos.1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077, 2088, 2164, 2449, 2464, 2482 to 2484, 2489 and 2498 of 2003) were dismissed as time-barred. The appeals of the petitioners (in Civil Petitions Nos.1841 to 1843 of 2003) against their termination from service were also accepted and the respondent-Bank was directed to regularize their services in accordance with the criteria laid down in para.10 of the impugned judgment for regularization of temporary Godown Staff and daily wages employees whose services had not been .Terminated. The appeals of the petitioners (in Civil Petitions 1939, 1991, 1992 and 1995 of 2003) were also dismissed as time-barred on the ground that they had been pursuing their remedies for regularization/reinstatement in service before the National Industrial Relations Commission despite the introduction of section 2-A in the Service Tribunals Act. 1973 thereinafter referred to as the Act of 1973). Hence these petitions for leave to appeal by the employees for grant of back-benefits, against conditions of regularization and against dismissal of their appeals as time-barred and also by the Bank against the regularization/reinstatement of the employees in service. 4. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2181, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003) submitted that the Bank had agreed to absorb the petitioners and other employees after a meeting with representatives of the staff. Some of such employees had already been permanently absorbed. The Bank had issued a Circular Letter No,P/2003 dated 1-8-2003 which clearly showed that regular vacancies numbering up to 1500 were available to regularize the temporary Godown staff and the daily wages employees. The impugned judgment of the Tribunal was required to be modified so as to regularize and absorb the petitioners/employees from the date of their initial appointment with all back-benefits as was done in the case of other employees who were similarly placed. The learned counsel pointed out that there was a confusion in regard to the remedy provided to the employees of statutory corporations or other bodies established and controlled by the Federal Government. The controversy was eventually resolved by this Court in the case of Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 wherein it was held that remedy of appeal under section 2-A of the Service Tribunals Act, 1973 had become available to such employees retrospectively in respect of their service related grievances. Even otherwise the question of limitation was of a technical nature which ought not have been treated to be insurmountable hurdle as laid down in the case of Managing Director Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724.
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5. Mr. Muhamniad Akram Sheikh, Senior Advocate Supreme Court for the employees (petitioners in Civil Petitions Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003) argued that ordinarily the findings of fact recorded by the Tribunal were not interfered with by this Court. The petitions filed by the Bank did not raise any substantial question of law of public importance as contemplated by clause (3) of the Article 212 of the Constitution which was necessary for grant of leave to appeal. It was further submitted that admittedly the letters of appointment of the employees had been issued by the Bank itself. There was no necessity of lifting veil merely on the ground taken by the Bank that the temporary. Godown staff and daily wages employees were recruited on behalf of the account holders/borrowers. The learned counsel submitted that the entire bank staff whether temporary or permanent was there at the expense of the account holders. The learned counsel relied on the case of National Bank of Pakistan v. Ghulam Rasool 2002 PLC (C.S.) 1639 in support of his contention that in similar cases, this Court had declined interference with the regularization of the temporary Godown staff by the Tribunal. The learned counsel lastly submitted that the petitioners-employees were entitled to be regularized in service with back-benefits and without any preconditions. 6. Mr. Ihsanul Haq Chaudhry, Advocate Supreme Court, learned counsel for the employees (petitioners in Civil Petitions Nos.2021 to 2073, 2075, 2076, 2078, 2079, 2164, 2179 and 2180 of 2003) argued that the appointment of the petitioners, like other employees, was made against permanent posts but the Bank adopted an illegal policy to employee the Godown and daily wages staff on fixed salary, from time to time, with short breaks in service after every 89 days. In many cases, the employees were not issued any letters of appointment or termination from service. The Bank itself had issued instructions in the year 1991 for absorption/confirmation of the daily wages employees and Godown staff. The lists of Godown staff and daily wages were prepared and a high-powered committee was constituted by the Head Office of the Bank for scrutiny of the lists for the purpose of absorption. A number of such employees were regularized by the Bank by following a policy of pick and choose. However, the petitioners and some other employees were not regularized. It was further pointed out that the Headquarters of the Bank (Personal Management Wing) (Administration Division), Head Office, Karachi, had issued memo. Dated 7-7-1997 whereby it was decided to absorb 1000 daily wages staff including temporary Godown staff, 700 in clerical and 300 in non-clerical cadre as on 29-2-1996, on seniority and provincial quota basis subject to fulfilment of qualifications prescribed for the posts. The Bank also issued another policy letter dated 1-8-2003 pursuant to an agreement, dated 20-1-2003 between the National Bank of Pakistan and Collective Bargaining Agent. It was decided that all employees of the clerical staff and non-clerical staff such as daily wagers/temporary Godown staff of the Bank who had completed three years of service in the case of clerical staff and 5 years service in the case of non-clerical staff and had passed their matriculation examination would be employed by the Bank in the regular cadre against 1500 posts provided the gap between their termination/re-appointment did not exceed 15 days. The Head Office of. The Bank by circular, dated 15-9-2003 notified instructions to all its Regional Offices to issue the appointment letters to temporary Godown staff and daily wages employees on the spot. The learned counsel next submitted that in somewhat similar circumstances the management trainees of the Sui Northern Gas Company Ltd, Karachi were also inducted/regularized. Reference was made to the cases of Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82, the Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796. The learned counsel contended that even in the past, a number of daily wages employees and temporary Godown staff were regularized in service by the Tribunal as affirmed by this Court judgment, dated 23-10-2001 in Civil Petitions Nos.1833-L of 2001 to 1848-L of 2003. . Civil Review Petitions Nos.1-L of 2002 to 39-L of
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2002 thereagainst were withdrawn by the Bank. Similarly, the Bank had also withdrawn Civil Petitions Nos.2172 and 2173 of 2001 titled National Bank of Pakistan and others v. Umer Hayat and others on 15-1-2002 involving similar cases. It was too late in the day for the Bank to say that the petitioners and similar other employees were employed by the Bank on behalf of the borrowers who could not be considered to be the employees of the Bank or that their appointments were of seasonal nature. The learned counsel submitted that where the appointment of an employee continued for over a period of years, the same was to be treated as regular notwithstanding the use of terminology as officiating, temporary and until further orders. Reliance was placed on the cases of Federation of Pakistan v. Raees Khan 1993 SCMR 609 and Abdul Majeed Sheikh v. Mushafee Ahmed PLD 1965 SC 208. Reference was made to the case of Ghulam Rasool (supra) wherein it was held that artificial break in service would not make any difference and such employees of the National Bank were to be treated as regular. The learned counsel argued that all the employees who were similarly placed were required to be treated alike. The judgments passed by this Court in suck cases would be considered to be judgments in rem and not in personam in view of ratio laid down by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185. It was pointed out that the employees who were regularized as a result of judgment, dated 25-10-2001 by this Court in Civil Petitions Nos.1837-L of 2001 to 1848-L of 2001 had also been further promoted in the meanwhile. As regards Civil Petition No,2164 of 2003, the learned counsel contended that in the facts and circumstances of the case, the Tribunal was not justified to dismiss the appeal of the said petitioner as time-barred. 7. Ch. Ghulam Qadir, Advocate Supreme Court learned counsel for the employees (petitioners in Civil Petitions Nos.1772, 1789, 1790, 1792,1793 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909, 1910, 1911 to 1915 of 2003) submitted that neither the conditions for reinstatement/regularization of the petitioners could be imposed nor their back-benefits could be denied by the Tribunal. The impugned judgment was contrary to the earlier decisions of the Tribunal in similar cases which were upheld by this Court. Reference was made to the judgment, dated 2-6-2003 passed by the Tribunal in Appeals Nos.1170R/CW/2002 to 1175RCW of 2002. As regards the cases of termination of the employees (petitioners in Civil Petitions Nos.1909, 1913 to 1915 of 2003), the learned counsel submitted that the Tribunal ought to have accepted their appeals by condoning the delay in filing the appeals. He referred to the cases of Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514, Hameed Akhter Niazi v. Secretary, Education Division, Government of Pakistan and others 1996 SCMR 1185 and Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645. It was further submitted that since the orders of termination of employees passed by the Bank were void ab initio and nullity in the eye of law. Therefore, the question of limitation would not arise. Reliance was placed on the cases of Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856, Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37, Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294, Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68, Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543, Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 and Allandino v. Fakir Muhammad and another PLD 1969 SC 582. 8. Hafiz Tariq Nasim, Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions 1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174 of 2003) reiterated the arguments advanced by the other learned counsel for the employees. 9. On the other hand, Khawaja Muhammad Farooq, Senior Advocate Supreme Court, the learned counsel for the National Bank (petitioners in Civil Petitions Nos. 2188 to 2432 of 2003) submitted that
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in all 316 appeals were filed by the employees before the Tribunal against the Bank with the following breakup:--- (a)Temporary Godown Staff 138 Appeals (b)Temporary Godown Chowkidars133 Appeals (c)Daily Wagers 45 Appeals (d) 76 appeals by the persons whose services were terminated which included categories a to c. The learned counsel next argued that the daily wagers and temporary Godown staff were not the employees of the Bank as they were hired on borrowers account. The same was clearly borne out from the letters of their appointment of these persons. The borrowers had authorized the Bank to make payment of salaries to the temporary Godown staff and debit the same in their account. Such persons were never inducted in service of the Bank and were paid a fixed consolidated salary inclusive of allowances. They were not appointed against sanctioned posts in conformity with the National Bank of Pakistan (Staff) Service Rules, 1980 (hereinafter referred to as the Service Rules). Since the petitioners were not in the service of the Bank, therefore, they were not to be treated as civil servants for the purposes of section 2-A of the Service Tribunals Act, 1973. Their services stood automatically terminated on the expiry of stipulated period in accordance with terms and conditions of their appointment or earlier on the adjustment of the finance facility of the borrowers. The petitioners were hired from time to time for specified period either on behalf of the same or a different borrowers. Each time the appointment was essentially a temporary or contractual one without there being any continuity of service and in some cases there was gap for considerable period of time between their termination and reemployment. It was next contended that the format of the letters of appointment had been changed by the Bank but the Tribunal relied on the obsolute form of earlier letters of employment. The financial impact of the claim of the petitioners, if allowed, would be a matter of grave concern for the Bank. The learned counsel relied on the judgment of this Court. In the case of Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC) where the previous service of a bank employee rendered with the Government was not counted towards pensionary benefits. It was submitted that the policy decisions of 1996 and 2003 for absorption/induction of temporary Godown staff and daily wages employees were taken by the Bank subject to the availability of regular and permanent posts. The temporary Godown keepers/Godown Chowkidars and the daily wages employees were either not in service at the time of commencement of such policy decisions or they otherwise did not fulfil the criteria laid down by the Bank. As regards Circular letter, dated 1-8-2003 issued by the Bank for creation of 1500 posts for regular absorption of such employees, the learned counsel pointed out that the said circular letter reflected only the state of affairs existing on the said date and not to any prior point of time from which the temporary Godown staff and the other daily wage employees were claiming their absorption/induction. It was further stated that circular letter, dated 1-8-2003 was issued by the Bank after the impugned judgment dated 17-7-2003 of the Tribunal. A number of such employees had withdrawn their cases from the Tribunal so as to avail the benefit of the said circular letter and were appointed on regular basis in terms thereof. 10. The learned counsel for the Bank next contended that the mere fact that temporary appointments of the petitioners continued for several years would not mean that those would automatically be considered to be permanent. Reliance was placed on the cases of Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156 and Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37. It was urged that the earlier judgments of this Court and the Tribunal in regard to the regularization of temporary Godown staff or the daily wages employees were distinguishable and were in personam and not in rem.
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Reference was made to the cases of Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796, Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212 Muhammad Sohail and 2 others v. Government of N.-W.F.P. And others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145 and Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145. The terms and conditions of service of the employees were governed by letters of their appointment and not otherwise in view of the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101. These persons were hired, from time to time, on work charge basis/daily wages for a particular project and for a specified duration: Therefore, they could not be considered as regular employees irrespective of their length of service. The learned counsel relied on the cases of WAPDA and others v. Khanimullah and others 2000 SCMR 879. Reference was also made to the Black's Law Dictionary Revised 4th Edition (1968), page 1518) wherein 'seasonal employment was defined as occupations which could be carried on only on certain seasons or fairly definite portion of the year and did not include such occupations as might be carried on throughout the entire. Year. The learned counsel emphasized that the employment for a specific project and a certain period came to an end automatically on completion of project or expiry: of the specified period in view of the law aid down in the cases of the State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111 and Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249. He also referred to the cases of General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 (D.B.) Karachi and Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi) in support of the proposition that there was nothing to imply a permanent appointment of a person who was re-employed after a short gap of earlier termination and that where a person hired on behalf of the borrower could not be treated to be in the employment of the Bank. Some of these persons were daily wages employees being paid salary only with reference to the number of working days excluding holidays. Therefore, they could not be treated to be the Bank employees. Reference was made to the cases of Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others 1990 SCMR 1539, Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC (C.S.) 162 (Lahore). 11. The learned counsel for the Bank further argued that the Tribunal had unjustifiably treated appeals of these employees to be within time who had wasted their time in filing their departmental appeals which were not required in view of section 2-A of the Act, 1973 and rule laid down in the cases of Syed Aftab Ahmed and others v. K.E.S.C. And others 1999 SCMR 197 and Ghulam Abbas and others (supra). The employees were required to file their appeals before the Tribunal within 30 days of termination of their services or, as the case might be, the refusal to regularize their service by the Bank. An employee Fiaz Ahmed (C.P. No,1841 of 2003) had filed his appeal before the Tribunal on 25-6-2002 beyond the limitation period of 30 days of his termination from service with effect from 19-5-2002. Similarly, Civil Petitions Nos.1934, 1937 and 1938 of 2003 of the employees were also liable to be dismissed as their appeals before the Tribunal were rightly held to be time-barred. The question of limitation was not to be ignored in service matters. Reliance was placed on cases of Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935, Muhammad Riaz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397, S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471, Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389, Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153.
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12. We have heard the learned counsel for the parties at length and have also perused the relevant record. We find that the employees/petitioners were recruited, by the Bank by issuing appointment letters indicating, in some cases, that they were to be governed by the Service Rules of the Bank for disciplinary matters. They were not selected or recommended by the borrowers. Therefore, on no principle of law and enquity, they could be treated to be the employees of the borrowers. It would hardly make any difference even if the salaries of the temporary employees/Godown staff or the daily wages employees were debited to the borrowers account. For all practical purposes and legal consequences they were placed under the administrative control 'of National Bank of Pakistan.##TE# A somewhat similar question was considered by this Court in the case of Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477. In the precedent case, the services of an employee of Afghan Refugees Organization were terminated after he had rendered more than 10 years of temporary service. A plea was taken that the employees of the said…
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