ALI ANWAR SHAH Versus DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, MULTAN

The three appeals captioned above arise from the decisions dated 25‑10‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.5, Faisalabad, whereby all the three respondents were directed to be re‑instated in service. The points involved in all the three appeals are similar and the only difference is that the orders of appointments and removal from service of the three respondents are of different dates, except the orders of final termination, therefore, all the three appeals are being disposed of together through this single judgment.

2. So far as Safdar Asim, respondent, is concerned, he was recruited in service vide order Exh.P.l dated 17‑5‑1983 on his application Exh. R‑4. ‑His services were terminated on 16‑8‑1983 vide order Exh.P.2 and he was on his application Exh.R.5 re‑employed vide order Exh.P.3 dated 18‑8‑1983. His services were again terminated vide order Exh.P.4 on 17‑11‑1983 and he was re‑employed on 20‑11‑1983 with effect from 21‑11‑1983 vide order Exh.P.5 on his application Exh.R.6 dated 19‑11‑1983. His services were terminated once again vide order Exh.P.6 on 19‑2‑1984 and he was on his application Exh. R.7 dated 20‑2‑1984 re‑employed vide order dated 25‑2‑1984 Exh.P.7 with effect from 27‑2‑1984. His services were again terminated but the order of his termination is not on the record. He was re‑employed on his application Exh. R.8 dated 26‑5‑1984 on 30‑5‑1984 with effect from 31‑5‑1984 vide order Exh.P.8. His services were again terminated vide order Exh.P.9 dated 26‑8‑1984 and he was re‑employed on his application Exh.R.9 dated 28‑8‑1984 vide order Exh.P.10 dated 4‑9‑1984. Again his services were terminated vide order Exh.P.11 dated 29‑11‑1984 and on his application Exh.R.10 dated 2‑12‑1984 he was re‑employed on 3‑12‑1984 with effect from 4‑12‑1984 vide order Exh.P.12. Similarly his services were again terminated vide order Exh.P.13 on 21‑2‑1985 and he was vide order dated Exh.P.14 re‑employed on 26‑2‑1985 with effect from 27‑2‑1985. His service were again terminated vide order Exh.P. 15 on 22‑5‑1985. He vide Exh.R.11 applied for re‑employment and he was again taken in service vide order EXh.P.l6 on 29‑5‑1985. He was again terminated from service on 22‑8‑1985 vide order Exh.P.19, which he challenged in his application given under section 25‑A of the Industrial Relations Ordinance, 1969. A compromise was effected between the parties and on the statements of the parties he was re‑instated vide order Exh. P. 22 dated 4‑3‑1986 without back benefits. On 29‑5‑1986 his services were terminated vide order Exh. R. 2 and he has challenged the said order in his application given under section 25‑A from the disposal of which the present appeal emerges.

3. The cases of the other two respondents are of similar nature. They too had been terminated from service on various dates and were re‑employed with gaps of seven to ten days. The grounds on which the services of the respondents were terminated are that the work had decreased. It has been argued by the learned counsel for the appellant that the work was not of a permanent nature and whenever the services of the respondents were required they on their applications were employed and when their services were not required due to decrease in the work, their services were terminated. On the other hand, it has been argued by the learned counsel for the respondents that the orders of termination from service and of re‑employment are fictitious and that the respondents remained in continuous service. Since with short gaps the respondents were terminated from service and were re‑employed on various dates, it appears that the work was of permanent nature and only to prevent the respondents from becoming permanent employees, their services were terminated and they were re‑employed. But a party can by legal means avoid the provisions of law. Only in cases where the re‑employment and termination are fictitious, it may be held that the employees concerned remained in continuous service and had become permanent. In the present cases there is absolutely no evidence that right from the date the respondents were initially employed upto the date of final termination or at any time before the previous application given under section 25‑A, the respondents remained permanently employed for more that three months. None of the respondents stated that they remained in continuous service, that they were marked present without any break or that they were paid wages for the whole period without break from the date of initial appointment to the date of last termination. The result, therefore, is that when the respondents' services were terminated, they ceased to remain in the service of the appellant and they came in service again when they were re‑employed on various dates. However, the period of service exceeds nine months so far as Safdar Asim, respondent, is concerned. As observed above, a compromise was effected in the previous applications brought by the respondents under section 25‑A, as a result of which they were re‑instated in service vide orders dated 4‑3‑1986. Since they were re‑instated, it means they were put back in the same position in which they were on the date of the orders of their termination, which, as a result of compromise, were set aside. The last orders of termination which were challenged in the present grievance petitions are dated 29‑5‑1986. So far as Safdar Asim, respondent, is concerned, the period of his service from 22‑8‑1985 to 29‑5‑1986, therefore, exceeds nine months. No doubt, the period of service of Abdul Sattar and Muhammad Arshad, respondents, from 2‑9‑1985 to the date of last termination i.e. 29‑5‑1986 is less than nine months, but, as mentioned above, since it appears that the posts existed right from the date the said two respondents were initially appointed upto the date they were finally terminated, it is apparent that the work which they have been doing, was of permanent nature. As they completed successfully the period of probation of three months from 2‑9‑1985 to 29‑5‑1986, they had become permanent. The learned lower Court, therefore, has wrongly regarded all the respondents as permanent employees from the date of their initial appointment. Since there were genuine breaks, the respondents cannot claim permanency from the date of initial appointment. No special reason has been given for the termination of work on 29‑5‑1986. The ground that services are no longer required' is no reason because still question arises why the services are not required. In the orders, copies of which are Exhs.P.19 and R.9, the reason for termination is no longer required as they were admittedly temporary workers. Similarly, no reasons are given in the orders of termination of Muhammad Arshad and Abdul Sattar, therefore, their termination also is not maintainable. In oral evidence given by R.Ws 1 and 2 no reason is given why services are not required at the time when the orders dated 20‑8‑1985 and 29‑5‑1986 were recorded against Safdar Asim and the orders dated 2‑9‑1985 and 29‑5‑1986 so far as the remaining two respondents are concerned. So far as Safdar Asim is concerned, he is, therefore, entitled to back benefits from 22‑8‑1985, and Muhammad Arshad and Abdul Sattar are entitled to the same from 2‑9‑1985.

4. As a result, the appeals are partly accepted and maintaining the orders of re‑instatements, the order of back benefits is modified directing that Safdar Asim is entitled to back benefits from 22‑8‑1985, Muhammad Arshad and Abdul Sattar from 2‑9‑1985.

A.E. /258/Lb. P

Appeals partly accepted.