MANZOOR ALI GARADO Versus UNITED BANK LTD .
DECISION
This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. VII at Sukkur, dated 4-3-191 whereby the grievance application filed by the appellant was dismissed.
2. I have heard Mr. Shabbir Ahmed Awan for the appellant and Mr. Sadiq Khan for the respondent and I have also one through the record and proceedings of the case.
3. The case of the appellant in brief is that since 1982 he was working as messenger in the respondent branch of bank firstly at Tharushah Branch and then at Naushero Feroze without any break against a clear vacancy. He contends that he was transferred to Kandhyaro Branch of the respondent-Bank in 1985 but he has not been given the status of permanent workman. After serving grievance notice upon the respondent, the appellant filed grievance petition before the learned Labour Court praying that it be declared that he was permanent workman as messenger and he was entitled to all the benefits attached to post and for direction to the respondent to issue order of regular appointment in his favour as messenger.
4. The respondents have resisted this application on the ground that the appellant was not their employee.
5. There is evidence of the appellant that he was firstly appointed as Godown-keeper in 1982 at Tharushah branch of bank and then at the end of year 1982 his designation was changed from Godown-keeper to messenger and since then, he is consistently working with United Bank Limited as messenger without any break in his service. As against this evidence of the appellant there is evidence of Mr. Dilawar Hussain an officer of the respondent-Bank who has stated that the appellant was not employee of the respondent. Admittedly there is no appointment order in writing. Admittedly there is no order in writing with regard to the transfer of the appellant from one branch to another branch. R.W. Mr. Dilawar Hussain has however admitted that Annexure `A' bears the signature of Syed Sher Ali Shah AVP and Zonal Head. This Annexure `A' is letter dated 21-4-1988 addressed to Circle Executive of the respondent-Bank at Hyderabad under which the application of the appellant was forwarded alongwith the letter of the Manager of Kandhiaro Branch of the respondent Bank, for appointment of the appellant as a messenger. It is mentioned in that letter dated 21-4-1988, that the appellant was working as a messenger temporarily. The letter of the Manager dated 19-1-1988 is Annexure `B'. This letter is addressed to the Assistant Vice-President of the respondent-Bank Nawabshah whereby the application of the appellant was forwarded for favourable consideration. It is mentioned therein that the appellant had been working at different branches since 1983 as seasonal staff. Annexure `C' is another letter of the Manager, Tharushah Branch of the respondent-Bank dated 1-2-1984 addressed to Assistant Vice-President of the respondent-Bank Nawabshah. In this letter it is mentioned that the appellant was working in their branch since last three years as seasonal staff in the hope of regular appointment and therefore he should be appointed as messenger. Annexure `D' is the certificate of Manager, United Bank Limited Tharushah Branch dated 1-4-1985 to the effect that the appellant was working in their branch since last three years as wheat cashier and godown-keeper. It was recommended that his duties may be regularised. Annexure `E' is another Certificate issued by the Manager of the respondent Naushahro Feroze. The date is not clear in his letter/certificate but it shows, that the appellant had remained on the branch on temporary basis since the year 1984 as messenger. Annexure `F .is a letter issued by the Manager, United Bank Limited addressed to Manager, United Bank Limited, Sukkur. It is dated 5th June, 1986, in which the Manager, Sukkur was requested to deliver the I.B.CA. to the bearer Mr. Manzoor Hussain whose signature was given on this letter. Annexure `G' is a letter dated 3-5-1986 whereby the appellant was informed by the Vice-President of the respondent-Bank that his application for employment in their bank as messenger was received which was forwarded to their Circle Office Hyderabad for consideration on merit at an appropriate time. Annexure `H' is Audit/Inspection Report of the respondent-Bank which shows that the appellant was working as messenger since 1985 arid was paid Rs.1,606 per month in wheat procurement season and Rs.500 per month in off season from Zonal Office in cash. Annexure `I' is Photostat copy of two letters one of which is letter dated 23-5-1988 addressed to Manager Tharushah Branch and the other to the Manager Mr. Kazi Ahmed in both of which request is made for payment of Rs.1,000 to the appellant who was working in Kandhiaro Branch. In the letter addressed to the Manager, Tharushah Branch it was requested to make payment of Rs.1,000 to Manzoor Garado for the month of April to May 1988.
6. All these documents have been issued by the officers of the respondent-Bank and have not been rebutted. The witness of the respondent was confronted with these documents. He has admitted signature of Syed Sher Ali Shah on Annexure `A' but he was not able to identify the signatures on the other documents as he was not conversant with the signatures of signatories. He has however admitted that these letters are issued on the Letter Head of the respondent-Bank. He has also admitted that he could not say that the applicant had ever worked as messenger in the U.B.L. branches of Naushahro, Tharushah and Kandhiaro. He has also admitted that he had no knowledge about the appointment, transfer and posting of the appellant. He has also admitted that messengers are not seasonal employees.
7. The evidence of the appellant read alongwith the documents produced by him leaves no doubt that the appellant had been working as messenger in various branches of the respondent-Bank since 1982. He has been treated as seasonal employee and was paid as salary Rs.1,606 during certain season and was paid Rs.500 as salary in off season. The bank is not a seasonal establishment but works uninterrupted for the year. Even witness for the respondent has admitted, that messenger is not a seasonal employee. The proviso to Standing Order 14 relates to the seasonal factory within the meaning of section 4 of Factories Act. The respondent establishment by no stretch of imagination can be considered as a factory.
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 respondent's own admission, the appellant had worked as seasonal employee sometime. 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. It may also be pointed that the person who has signed the written statement has not been examined and Mr. Dilawar Hussain who was examined appears to be ignorant of the facts of the case. Even in his affidavit-in-evidence in para. 3 he has only stated that the legal grounds in the Reply statement may be deemed to be part of this affidavit. Though he asserted in para. 5, that the appellant was not employee of the respondent, but he has admitted his ignorance about the appointment, transfer and posting of the appellant which makes his assertion that appellant was not employee to be without any force.
10. Under Sanding Order 1 there are only five categories of the workers who 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 in various branches from 1982, will lend support to his contention that he was working in a permanent vacancy. The afore-mentioned letters issued by various officers of the respondent recommending regularisation 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."
11. In the aforementioned letters the immediate officers of the appellant have stated 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 completion of the period of probation for so many years.
12. 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.
13. 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.
14. The learned Labour Court has held that if the appellant had been working as Messenger unofficially or honorary it was entirely at his risk and since there was no assurance to the applicant for his appointment as messenger, as admitted by him in his cross-examination, the prayer of the appellant could not be allowed by this Court. The documents pointed above are official documents issued by the officers of the respondent which show that he had been working continuously and that he was being paid salary. He cannot be paid to have continued working honorary or unofficially. I have already pointed that failure of the respondent to issue appointment and transfer order would render the respondent liable for punishment but the appellant could not be punished for the same.
15. Keeping in view the above discussion I set aside the impugned order of the learned Labour Court and hold that the appellant had acquired the right of permanent workman in 1983 after successfully completing the probationary period. There is no evidence to show that his services have been terminated at any stage by an order in writing as required under Standing Order 12(3) therefore he would be deemed to have continued in service. The prayer of the appellant to be treated as permanent workman is allowed. He is allowed the difference or arrears of his salary as a permanent workman, since last three years before filing of his grievance petition. The order to be implemented within one month.
H.B.T./1992/Lb.S Appeal accepted.