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Petitioner: EXECUTIVE ENGINEER, CENTRAL CIVIL DIVISION, PAK. P.W D QUETTA VS Respondent: ABDUL JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Saleem Akhter, Ajmal Mian, Abdul Qadeer Chaudhry Title:EXECUTIVE ENGINEER, CENTRAL CIVIL DIVISION, PAK. P.W D QUETTA vs ABDUL
JUDGMENT
Reported As: 1996 PLC 385 Result: Appeals dismissed Judgment JUDGMENT ' AJMAL MIAN, J.---By this common judgment, I intend to dispose of the above appeals as they involve common questions of facts and law and are directed against the judgments all dated 27- 5-1993 passed in Constitutional Petitions Nos. 278 of 1993 to 297 of 1993 filed by the appellant against the common judgments dated 9-5-1993 of the Labour Appellate Tribunal, Balochistan, Quetta, in Labour Appeals Nos.18 to 37 of 1992 affirming the orders dated 29-11-1992 of the 1st Labour Court Balochistan Quetta, dismissing the same. Leave to appeal was granted in view of the following facts:-- (1) The order of the President issued by Works and Rehabilitation Division dated 23-5-1973 directing that the temporary work-charged staff employed in Pak. P.W.D. Will be entitled to such financial terms and conditions as would be admissible to them if they were regular temporary Government servants? (2) The effect of first proviso to subsection (4) of section 1 of the West Pakistan (Standing Orders) Ordinance No, VI of 1968 which excludes the applicability of provisions of Standing Orders Ordinance to employees in respect of whom statutory rules exist. In respect of Pak. P.W.D. Statutory rules have been held to exist--Province of Punjab and 3 others v. Gul Hassan and 33 others 1992 PLC (C.S.) 9241 (3) Even if Standing Orders Ordinance was applicable, the employees could not be taken to be permanent employees in view of the law laid dowby this Court in Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others 1990 SCM R 1539.
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(4) In view of the decision of this Court in Faqir Muhammad v. The Director of National Savings, Multan Region, Multan PLD 1992 SC 127 whether these employees could not be held to be engaged in the administration of the State. 2. The relevant facts giving rise to these appeals are that the Pakistan Public Works Department, Government of Pakistan, hereinafter referred to as the Pak. P.W.D. Has been entrusted with the work of carrying out construction itself or through contractors and to maintain various Government buildings used for official and residential purposes. It appears that according to Pak. P.W.D. There are two types of employees in the department, namely--- (i) permanent; and (ii) those who are engaged on work-charged basis. ' It is the case of the department that the former employees are permanent employees whereas the latter employees are temporary employees and they are employed for some specific projects and thus are paid out of the contingency funds. The respondents in the above appeals were employed on various dates on work-charged basis. It will be advantageous to reproduce the appointment letter of respondent No,1 in Civil Appeal No, 48-Q of 1993 in order to appreciate the nature of his appointment, which reads as follows:-- "OFFICE MEMORANDUM ' Abdul Aziz son of Imam Bakhsh is hereby appointed as Beldar with effect from 15-1-1989 on the work construction of acquisition of land and construction of 250 quarters and 82 hostel accommodation for F.G.S. Phase (S.H. 44 Nos. Cat. V) Sariab Road, Quetta in basic pay scale No, 1 i,e, (Rs, 600--13--860) plus usual allowance as admissible under the rules, on purely temporary basis for 3 months. His services are liable to termination any time without any notice and without assigning any reason, in case he intends to resign he shall have to give fortnight notice or forfeit fortnight pay in lieu of notice to the President of Pakistan." 3. It appears that the respondents continued to work in the department for a period between two years to seven years till the time their services were terminated inter alia by an office order dated 1-4-1991. According to the judgment of the Labour Appellate Tribunal the services of 120 work- charged employees were terminated by giving them 15 days' notice as per terms of their appointments. It may be advantageous to reproduce the operative portion of the above office order dated 1-4-1991, which reads as follows:-- "OFFICE ORDER ' In compliance to the order of Director-General, Pak. P.W.D. Islamabad vide Letter No,DG 105/W.D. Dated 14-2-1991, Chief Engineer, Pak. P.W.D., Quetta Letter No, 416/301, dated 18-2-1991 and Superintending Engineer, Central Civil Circle No, II, Pak. P.W.D., Quetta Letters No SE.II/G. 453/821, dated 9-3-1991 and No,EE.II/G.453/856 dated 26-3-1991, the undersigned has been pleased to serve upon 14 days' notice with effect from 1-4-1991 to the work-charged staff founded surplus on various works. Their services may be considered as terminated with effect from 15-4-1991." 4. It seems that the workers of the department framed a Union under the name and style of Pak. P.W.D. Employees' Union, hereinafter referred to as the Union. The Union challenged the above termination order by filing application under section 34 of the Industrial Relations Ordinance, 1969 hereinafter referred to as the I.R.O. They also filed applications for interim stay, which were granted on 10-4-1991. The aforesaid applications were contested by the department and the stay order was vacated and subsequently the respondents filed applications for the withdrawal of the above main applications with the permission to file fresh applications. After that, the respondents, after serving notices under section 25-A of the I.R.O. Filed separate applications under the aforesaid provision before the 1st Labour Court Balochistan, Quetta, inter alia resisting for reinstatement. It was averred that the persons junior to them were still working in the department and some new appointments were made after the termination of their services. The above applications were contested by the
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department inasmuch as written statements were filed, in which a number of legal objections were raised as to the maintainability of the above applications and limitation etc. It was denied that the respondents were permanent employees or workmen. 5. The Labour Court framed four points for determination. After recording evidence and hearing the parties, it held as follows:-- "In this affidavit the representative of respondent has only stated that applicant was appointed on work-charged basis and on completion of projects for which applicant was appointed or due to short of funds, the applicant was removed from service. But he has not pointed out those projects for which applicant was appointed or the date of completion of that project. During cross- examination he admitted that applicant remained in service for more than one year, his G.P. Fund was being deducted, his pay was being increased from time to time as others and no deduction in his pay was being done for Fridays and other holidays of other festivals. It shows that applicant was a permanent worker and not a work-charged workman. Section 2(g) also provides the definition of permanent worker 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 his satisfactorily completed a probationary period of three months in the Sami and Corporation in the Industrial or Commercial Establishment. So, the tenure of employment of workman claiming to be permanent nature must be nine months or more and he should have completed three months' probationary period. In the instant case the respondent has failed to prove that the work for which the applicant was employed ended/completed before nine months rather his representative admitted that applicant remained in service for more than one year, meaning thereby the nature of work of applicant was permanent and he was permanent workman. ' There is a procedure in Standing Orders Ordinance, for terminating a workman from service and the mode provided under the provision of Standing Order should be issued in written otherwise such order will be null and void. Reliance can be placed on 1990 PLC 275. ' From the above I am of the view that the applicant was a permanent worker and termination of his service is illegal. As such termination order of applicant is set aside and he be re-instated in service within one month with all his back benefits from 9-6-1991. File is consigned to record." ' The respondents' application under section 25-A of the I.R.O. Were allowed in the above terms. 6. Against the above order, the department filed the aforesaid labour appeals. The Labour Appellate Tribunal concurred with the above order of the Labour Court by concluding as under:-- "Furthermore, it may be observed that the appellant whose case was that the respondents were employed on work-charge basis for a particular project and the period for which it had to continue had expired, therefore, services of respondents were no more required by the department. In fact it appears that the appellant without producing an iota of evidence took the plea simply to non-suit the respondents on this ground. It is not disputed that respondents were appointed about 2 to 7 years back and continued to work as such. They, therefore, cannot be termed as work-charged or temporary workmen. In this regard the definition of workman as provided by section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is hereby reproduced:-- " 'Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." ' Further, to see whether or not the respondents were permanent workers, reliance can be placed on section 2(g)(b), Schedule to the Standing Orders Ordinance." ' Reliance was placed by the Labour Appellate Tribunal on the following cases:-- (i) Abdul Razzak v. Agriculture Engineer, Makil Thatta and 2 others 1990 PLC 275; (ii) Multan Cotton Industries v. Khadim Hussain 1990 PLC 711;
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(iii) National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1992 PLC 4'.;; (iv) Hamid Ahmad Khan v. Presiding Officer, Fourth Sindh Labour Court and another 1992 PLC 665. 7. After that the department filed aforesaid Constitutional petitions, which were also dismissed in limine. Thereupon, the department filed petitions for leave to appeal, which were granted in view of the above facts referred to in paras. (1) RI (4) of the leave granting order. 8. In support of the above appeals, Mr. Tariq Mehmood learned A.O.R. Appearing for the appellant, has vehemently contended that neither the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hereinafter referred to as the Standing Orders Ordinance, nor the I.R.O. Was applicable to the respondents, and therefore, their above applications under section 25-A were misconceived and the impugned judgments/orders are without jurisdiction. His further submission was that the respondents were employed on work-charged basis and, therefore, they were not permanent employees irrespective of the fact that they continued to work in the department for a period from two years to seven years. ' On the other hand, Mr. S.A.M. Quadri, learned A.O.R. Appearing for respondent No,1 in all the above appeals, has vehemently urged that since the respondents were not covered by the definition of the term civil servant given in subsection (1) of section 2 of the Civil Servants Act, 1973, hereinafter referred to as the Act, by virtue of clause (iii) thereof, the respondents were covered by the definitions of workers/workmen given in section 2(i) of the Standing Orders Ordinance and section 2 (xxxviii) of the I.R.O. His further submission was that there is a concurrent finding of the two Labour Courts that the respondents were permanent employees and, therefore, the High Court was justified not to disturb the above concurrent finding in the exercise of Constitutional jurisdiction. 9. Before dilating upon the contention, whether the respondents were covered. By the above provisions of the Standing Orders Ordinance and of the I.R.O. It may be pertinent to deal with the question, whether the respondents were permanent employees or not. In this regard, it may be appropriate to refer to Section Officer, Government of Pakistan, Works and Rehabilitation Division's letter dated 23-5-1973 addressed to the Chief Engineer, Pakistan P.W.D., Karachi, the relevant portion of which reads as follows:-- "To ' The Chief Engineer, ' Pakistan P.W.D., Karachi. ' Sub: Grant of status of regular Governemnt servants to the temporary work-charged staff of Pakistan P.W.D. ' Sir, ' Reference your Letter No, 715/401/142-WO, dated 16-3-1972 on the subject noted above. 2. The President has been pleased to decide that with immediate effect temporary W.C. Staff employed in Pak. P.W.D. Will be entitled to such financial terms and conditions as would be admissible to them if they were regular temporary Government servants and that for this purpose the temporary W.C. Employees in the National Pay Scale No,3 and above will be treated as if they were temporary regular class III Government servants and those in National Pay Scales Nos.1 and 2 will be treated as if they were temporary regular Class IV Government servants. 3. It has also been decided that the service rendered by the W.C. Staff, before the date of confirmation in the case of permanent staff, and before the date of this letter in the case of temporary staff, may be counted towards pension to the extent to, and subject to the conditions under which temporary service qualifies for pension under the rules. This concession would be admissible to those who were in service on 1-3-1972." ' A perusal of the above letter indicates that the subject of the above letter was "Grant of status of regular Government servants to the temporary work-charged staff of Pakistan P.W.D.", whereas the
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contents of the same show that temporary work-charged staff employed in Pak. P.W.D. Would be entitled to such financial terms and conditions as would be admissible to them if they were regular temporary Government servants. They were also given the benefit of the National Pay Scales. Upon confirmation of their services, they were also to get the benefit of counting the period of temporary services towards pension. 10. Mr. Tariq Mahmood, in furtherance of his above submissions, has referred to the case of Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others 1990 SCM R 1539, in which this Court, while declining leave to appeal, made following observations:-- "4. In order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the petitioner had to show that he was a permanent workman. A 'permanent workman' has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever, long may be his employment, he cannot be taken to be a permanent workman. The length of the period of employment by itself has not been made the ground or a test for determining the nature of the work. Keeping in view the nature of the work on which the petitioner was employed, namely, an addition to the regular strength of Malis for the maintenance of the gardens and the grounds on daily wages or on work-charged basis, it cannot be said that such additional work being done by him was of a permanent nature necessarily. As regards the stigma attaching to the permanence of'his services, the petitioner has as witness admitted that the termination order was oral and not in writing." 11.. There is no doubt that in the office memorandum whereby the respondent in Civil Appeal No, 48-Q of 1993 was appointed, it was stated that he was appointed against the constructior of 250 quarters and 82 hostel accommodation for F.G.B. Phase (S.H. 44 Nos. Cat. V) Sariab Road, Quetta, on purely temporary basis for three months and that his services were liable to be terminated at any time without any notice to him without assigning any reason. However, on the basis of the evidence on record, the Labour Court concluded that the respondents remained in service for more than one year, his G.P. Fund was deducted, his pay was increased from time to time as of others and no deduction was made for Fridays and other holidays. 12. It has not been disputed by Mr. Tariq Mehmood that the respondents in the above appeals continued to work for a period between two to seven years' period to termination of their services. 13. The High Court has treated the above quoted portion of the order in the case of Muhammad Yaqoob (supra) as under:-- "The perusal of the above dictum visualizes that length of service of a worker would not be of a decisive factor but it is to be seen whether throughout the period of his incumbency he had a break in the service, particularly, whether worker was paid for the weekly holidays. Because initially if a person is engaged to perform duties on work-charge basis he would be entitled to get wages for the days, for which he actually worked, but as on the holidays, he had not worked, therefore, he would not be compensated. In the instant case, perusal of the case file abundantly makes it clear that after the date of appointment, respondents continuously worked. So much so, they were paid monthly emoluments, therefore, in view of the definition of the 'permanent worker' under Standing Order 1(1) of the Ordinance of 1968, undoubtedly the respondents have attained the status of 'permanent workers' and the petitioner-department was not competent to terminate their services without strictly adhering to the provisions of law. This proposition can also be attended keeping in view the provisions of section 6 of the Civil Servants Act, 1973, which envisages that a civil servant shall remain on two years probation period and thereafter unless his service is not terminated on account of unsatisfactory performance, he shall be deemed in the permanent job of the Government. Accordingly with whatever angle the case of the respondents is viewed, in our opinion, after continuous satisfactory employment for a period of two years they had attained the
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status of permanent employees and the forums below have appropriately considered the respective rights of the parties and had arrived at a conclusion which is not open to exception." 14. The ratio of the above judgment in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided he is covered by the definition of the term "worker" given in section 2 (i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant-department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than nine months. From the side of the appellant nothing has been brought on record in this behalf. The appellant-department is engaged in maintaining the Government residential and non-residential buildings and constructing itself and/or causing construction thereof. The above work as far as the appellant-department :s concerned is of permanent nature. In this view of the matter, the finding recorded by the Labour Courts in this respect cannot be said to be not founded on evidence on record. 15. There are three points which require consideration, namely:-- (i) Whether the respondents are civil servants in terms of section 2(1)(b) of the Act? (ii) Whether the respondents can press into service the provisions of the Standing Orders Ordinance? And (iii) Whether the respondents are entitled to press into service section 25-A of the I.R.O.? 16. As regards the above first point, it may be advantageous to reproduce clause (b) of subsection (1) of section 2 of the Act, which reads as follows:- "(b) 'Civil servant' means a person who is a member of an All-Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include-- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract. Or on work-charged basis, or who is paid from contingencies; or (iii) a person who is a 'worker' or workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923):" ' A perusal of the above clause indicates that "civil servant" means a person who is a member of All-Pakistan Service or of a Civil Service of the Federation or ' who holds civil post in connection with the affairs of the Federation including any such post connected with defence. However, the definition does not include a person who is on deputation in the Federation from any Province or other authority or a person who is employed on contract or on work-charged basis or who is paid from contingencies or if a person who is a "worker" or "workman" as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. 17. According to the appellant-department, the respondents were employed on work-charged basis, therefore, they are excluded from the definition of "civil servant" by virtue of sub-clause (ii) of clause (b) of subsection (1) of section 2 of the Act. They will also be excluded if they are workers or workmen as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. It seems that the respondents are not covered by the definition of "worker" given in section 2(h) of the Factories Act, 1934, as they are not employed directly or through an agency in any manufacturing
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process or in cleaning any part of the machinery of 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, whether for wages or not. Whereas the definition "workman" given in section 2(1)(n) of the Workmen's Compensation Act, 1923, appears to be very wide in its scope as it provides as follows:- "2(1)(n) Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is -- (i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub-divisio- al office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed on monthly wages not exceeding three thousand rupees, in any such capacity as is specified in Schedule II." ' A perusal of the above definition shows that "workman" means any person other than a person whose employment is of casual nature and who is employed otherwise than for the purpose of the employer's. Trade or business. The definition includes railway servant as defined in section 3 of the Railways Act, 1890 not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as specified in Schedule II. It also includes persons employed on monthly wages not exceeding three thousand rupees in such capacity as is specified in Schedule II. 18. It may be noticed that the proviso to the above sub-clause (ii) of clause (n) lays down that it does not make any difference whether the contract of employment was made before or after the passing of the said Act and whether such contract is express or implied, oral or in writing. It may be pointed out that originally the above proviso excluded any person working in the capacity of a member of His Majesty and in Indian Service. ' The above amendments were made by Ordinance No,XXVII of 1981 and by amending Ordinance No,XXXVII of 1937 respectively. It may also be stated that item 8 of the II Schedule referred to in the above clause includes within the definition of "workman" the persons employed in the construction, repair or demolition of any building or structure, any dam or embankment which is 20 feet or more in height from its…
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