HAZOOR BUX Versus UNITED BANK LIMITED, KARACHI

DECISION

This is an appeal against the order dated 5th March, 1981 passed by the learned Presiding Officer, Sindh Labour Court No. VII at Sukkur whereby the grievance petition of the appellant was dismissed.

2. I have heard Mr. S. Tauqir Hassan for the appellant and Mr. Sadiq Khan for the respondent and I have also gone through the record and proceedings of the case.

3. The case of the appellant in brief is that he was employed as workman by the respondent in their Padidan Branch of United Bank Limited, Nawabshah Zone since 30-10-1980 without any break against permanent vacancy. He alleges that he was termed as temporary employee and was given monthly salary of Rs.300 on vouchers. He contends that his services were orally terminated on 2-To-1987. Aggrieved by this termination of his services, he served grievance notice upon the respondent. Failing to get any redress, he filed grievance petition in the learned Labour Court, which was resisted by the respondent on the ground that appellant was not their employee.

4. There is only oral word of the appellant that he was working as messenger from 30-10-1980 in the Padidan Branch of the respondent-Bank continuously without break as against the word of R.W. Dilawar Hussain an officer of the respondent-Bank who states, that the appellant was not employee of the respondent-Bank.

5. Apart from this oral evidence certain photostat copies of documents. Document Annexure-A filed alongwith the application under Order 13, Rule 2, C.P.C. read with section 36 of I.R.O., 1969 is a letter from the Manager, Padidan Branch to the Assistant Vice -President of the respondent Zonal Office Nawabshah. This letter is dated 16-4-1983 requesting for appointment of the appellant as wheat cashier for season as he was posted as temporary messenger in the bank. Annexure `B' is a letter of the Manager, Padidan Branch forwarding application of the appellant for permanent posting of the appellant as messenger. It is mentioned therein that appellant was working as messenger temporarily as casual labour since 3 years at the branch and was working satisfactorily. This letter is dated 15-3 198To. Similar is the contents of Annexure `C' which is dated 8-7-198To and addressed by the Manager, Padidan Branch to the Vice-President, Nawabshah Zone. It is mentioned therein that he was paid Rs.10 per day as expenses on account of casual labour. Annexure `D' is also a letter of the Manager, Padidan Branch dated 26-7-198To which shows that Rs.300 per month were paid to the appellant as expenses. This also shows that he was working since last 3 years as casual labour. These letters have been proved through Mr. Muhammad Idris, Manager, United Bank Limited, Padidan Branch from November, 1982 to March 1985. He however states that "appointment order of the appellant was not issued by the Lank Authority. He could not say as to how much period the appellant had continuously worked at a time. According to him the muster roll of the appellant was not maintained, but the appellant used to be assigned different types of work like Peon, Gunman, or Account work and that his services were intermittently terminated and re-engaged on work without any termination order or appointment order." He was examined by the appellant but was not cross-examined by the respondent. The originals of the Annexures A, B, C and D were produced by the appellant alongwith his grievance application.

6. These documents clearly show that the appellant was working continuously since 3 years as temporary workman with the respondent at least upto 26-7-198To. No doubt the appellant examined the witness Muhammad Idris, and he states that services of the appellant were intermittently terminated and he was re-employed, but no such order of termination or appointment issued by the respondent has been produced. Though the appellant has examined him, but he is an employee of the respondent-Bank and would naturally try to favour the bank. His this statement is contradicted by his own writing which shows, that the appellant was working temporarily since 3 years. Therefore this evidence lends support to the conclusion that at least upto 26-7-198To the appellant was working in the respondent-Bank since three years. There is no evidence to show that thereafter his services were terminated before 2-4-1987.

7. The appellant has stated that his services were orally terminated on 2-4-1987. The respondents have not come with clean hands and they have categorically denied the assertion that the appellant was their employee though their own employees state and the documentary evidence shows that he continuously worked as temporary employee upto 26-7-1984. Under the circumstances I am inclined to believe the appellant that he was in service of the respondent till his services were orally terminated on 2-4-1987.

8. The main contention of the learned counsel for the appellant is that the appellant does not have any appointment order. Standing Order 2-A makes it obligatory for the employer to issue appointment order at the time of appointment, transfer and promotion in writing showing terms and conditions of service of the employee. If the employer does not issue appointment order, he is liable to prosecution, but the employee cannot be punished for this lapse on the part of employer. Even on respondent's own admission, the appellant had worked as seasonal employee for some time. There is no such appointment order produced by the respondent and no order as required under Standing Order 12(3) has been produced to show that his services were terminated at any stage.

9. Under Standing Order 1 there are only five categories of the workers which are permanent, probationers, badlies, temporary and apprentices. There is no category of a seasonal worker. There is no evidence produced by the respondent to show that the appellant was working in any temporary vacancy. The appellant asserts that he was working in a permanent vacancy. The very fact that he was continuing to work as messenger from 1980-81 would lend support to his contention, that he was working in a permanent vacancy. The aforementioned letters issued by officers of the respondent recommending regularization of the appellant as messenger would also suggest that he was working in permanent vacancy as they did not ask for creation of any post for his appointment. The permanent workman has been defined in Standing Order 1(b) 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 commercial establishment 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."

10. In the aforementioned letters the immediate officers of the appellant have shown that his work has been found satisfactory and was therefore recommended for regularisation. He would therefore, be deemed to have completed his probationary period satisfactorily and would be deemed to have acquired the status of permanent workman after completion of three months' period of probation. The mere fact, the higher authorities slept over the recommendations of the immediate officers of the appellant for the regularisation, would not deprive the appellant from his legal right. The appellant had a guaranteed right under the Standing Orders Ordinance to be treated as permanent employee by continuing in the service of the respondent after the satisfactory completion of the period of probation for So many years.

11. The learned counsel for the respondent relied upon the decision of this Tribunal reported in 1990 PLC 110 wherein it was held that workman could not file any grievance petition for enforcement of right which was not guaranteed under any law, settlement or award in force.

12. I have already held that the appellant had a guaranteed right to be treated as permanent workman. In the case of Mashriq Press Publication v. Munawar Khan 1991 PLC 82 the contention of workman that he was employed in 1984 but was not made permanent stood unrebutted. The workman had continued in service for more than 5 years. This Tribunal therefore held that worker had acquired right to be treated as permanent in the circumstances,

13. The learned Tribunal has relied upon the evidence of Mushtaq Ali Manager of United Bank Limited from December 1977 to September 1980, He states that the appellant was working as Wheat Cashier during his tenure and had worked for only 90 days on temporary basis and the termination order of the appellant was not issued as the appointment order itself contained that the appointment of the appellant was for 90 days only. This appointment order is not produced. Even if this witness is believed this would relate to period prior to September 1980 but according to the aforementioned documents the appellant was continuously working as temporary messenger since 1980-81, and was getting remuneration of Rs. 300 p.m. for the work. Appellant claims to be working continuously since 30-10-1980.

14. Keeping in view the above discussion I set aside the impugned order of the learned Labour Court and hold that appellant had acquired the right of permanent workman in 1981-82 after successfully completing the probationary period. The oral termination of the service of the appellant on 2-7-1987 was in violation of Standing Order 12(3) which is not sustainable. The appellant is ordered to be reinstated in service with full back benefits from the above 4ate as a permanent workman. The order to be implemented within one month

H.B.T./1993/Lb.S Appeal accepted.