NOOR MUHAMMAD Versus PAKISTAN STEEL FABRICATING CO. LTD.
ORDER
Three separate applications Nos.139/86, 132/86, and 125/86, have been filed by number of workers whose names are mentioned in each petition, serial‑wise, but some filed no affidavit, are in the nature of prayer for re‑instatement and to claim permanency of the job, due to long service.
Applicants claim to be employed by the respondents' establishment against the different designations, on the daily wages.
3‑The grievance of the workers or workmen, is very simple. They have the grievance that, long practice has been followed that, after completion of 89 days, they are removed from the employment. They have also made the express mention that among six hundred workmen, which included the applicants, some are appointed on purely regular and permanent jobs but they are being considered, as temporary workers even after more than one year. Consequently they sent grievance notices for the redress of their grievance that they should be treated as permanent workmen on regular and permanent basis.
4.The result was that their services were terminated and they have come to the labour court for the redress.
5. Respondents have contended that they were employed for short duration according to the‑ nature of work. No such right has accrued to them for claiming permanency.
6. In these two applications Nos. 125/86 and 132/86, the contention of the respondent is basically the same.
7. These matters were placed for evidence before the Labour Court. This was the desire of both the counsel who represented the parties, that in view of the common question of law and the facts, in light of each petition, all be disposed of by following the cross-examination of the respondent's official.
8. Following are the points for determination:‑
(i) Whether the applicants were engaged on daily wages.
(ii) What is the effect of their long service.
REASONS:
1. The applications are in the nature of the prayer of the permanency of service in the Steel Mill due to long service. This seems to be the crux of the matter and the grievance against the management. They also have the grievance that this tradition has been followed in the establishment that the employer engaged the daily wage workers for 89 days against the permanent regular job and removed them and re‑employed them which is against the spirit of the labour law. In other words the workers or the workmen have used the word unfair practice or to call as conventional practice. They have further qualified that this practice is the exploitation of the labour and the beneficial employment of the terms of employment.
2. In the first place, to be precised , the workmen have not convinced the court, whether there is any limitation on the powers of the employer to employ any person for temporary working, in view of the needs, and the requirements of the heavy complex of industry, of which the employer is in better position to see in the national interest. Labour law also seems to have been enacted or promulgated with the consensus recommendation. All that the employee derived its strength from the application of the law, what is defined in section 2(g) standing Orders Ordinance for the right secured or guaranteed in terms of section 3 and 4, for any such violation, there is a remedy and the redress able wrong. As the court understands within this framework their status is governed by that classification. The categories are defined namely permanent, probationers, badlies , temporary or apperentice . A permanent workman is a workman who has been engaged on a work of permanent nature likely to last more than 9 months and satisfactorily completed probationary period of 3 months in the same industrial or commercial establishment, including breaks due to sickness, accidents, leave lockout, strikes or involuntary closure of establishment and includes badli who has been employed for continuous period of three months or for 183 days during period of 12 consecutive months. In other words a probationer should fill permanent vacancy after provisional employment and badli against the post of permanent workman or probationer who is temporarily absent.
3. There are three requirements namely the work of permanent nature, worked to last more than three months and third completion of probation.
4. For example the court refers the specimen of the appointment form which reads that the services will be purely on temporary basis for temporary job, likely to be completed within 89 days.
5. The word purely temporary is of highly significant aspect for, there is no condition of probation, to claim the right of permanency.
6. The word probation may be understood in the concept by workman that he worked for more than 89 days and therefore one of the requirements becomes satisfied for such of entitlement besides other requirements. In the court's opinion the requirement of probation must be the condition by the consensus, for the workman to know the terms and conditions to come in the context of that classification. It will be otherwise an absurdity that if a person applies for the job and accepts the terms which is estoppel by conduct, he is to follow those terms for the interpretation and not beyond. It will be otherwise sentimental considerations, of course based on certain logical conclusion that this practice of 89 days and again re‑employment negatives the concept of fairness and equity. At the same time the Court has also referred this aspect that if the law has put no limitation on the prerogative to employ any person for limited period he has his own, jurisdiction with no constraint.
7. Likewise, every establishment of industrial nature and particular of such heavy complex there are rules governed in the service structure and the record of the employee whether be of daily wage or regular employee. There is no dispute as to the period of working, all the applicants have put up in the schedule. Likewise all the applicants have not disclosed the date of termination in the applications before the court, when the cause of action arose for filing petitions before the court, at the earlier stage.
8. With this background the court has to differ the date of termination, as for example the date of termination of Noor Muhammad is shown 30‑4‑86. The date of termination of Zulfiqar is shown 28‑4‑86, the date of Muhammad Ashiq Khan is 8=5‑1986. The date of termination of Muhammad Yousuf is 4‑5‑86. The date of Muhammad Shamim is 20‑4‑86. The date of Abdul Rauf is 24‑4‑86. The date of Umer Muhammad is 30‑3‑86. The date of Syed Nasir Haider is 20‑4‑86. The date on Annexure‑K‑2 is 28‑4‑86 but the signature is not clear and does not resemble to that of signature at the schedule. The date of termination is 28‑4‑86 in the case of Ahmed Raza. The date of termination in the case of Moinuddin is 24‑4‑86. The date of Muhammad Iqbal is 7‑5‑86.
9. These dates of termination in the notice of grievance are referred to those applicants who are shown in application No.139 of 1986. The court also will refer notice of grievance of other applications, but at this stage a very important document has come before the court when the witness of the respondent Mr. Wasi Raza Jafferi was under the test of cross‑examination. What the endorsement reveals in response to the letter dated 2‑12‑1985 from the Deputy Chief Engineer.
10. The endorsement before the signature of the Junior Officer, is as follows:
"The request of the acting GMC, for the re‑appointment of seven workers on D. witness, as per details given in the attached note for fabricating shop reveals the fact that all the said workers have already put up nine months service with a break of three days after each 89 days. Temporary jobs against which workers are hired, can last to a maximum period of nine months. Now if they are appointed for further period of six months, it will be considered that the job against which they are being engaged is of permanent nature, for that case, there is likelihood of legal complication. At present three workers have filed suit in the Labour Court."
11. There is initial but it is not disclosed whose initial it is when the word Manager Administration is scored off. Then follows the noting of Ali Muhammad and finally there is endorsement as follows:
"I agree with the suggestion of Secretary. Prominently, and significantly, the typing word the Principal Executive, and the word Secretary is also scored off. This is reference to Ex: R/1.
12. This photostat copy of the document first time brought before the court at the last stage when the respondent witness was examined, the court has taken the critical view of R/1 that what the Secretary or Principal Executive, has said about the absorption of 7 workers, because the work of which they were employed on daily wages shown of permanent nature of work, indeed if the court takes this view that the endorsement was of recommandary nature, drawing the possible inference for any official action where they have made the commitment and support the workmen that such was the conventional practice of terminating of employment after 89 days and to draw inference of mala fide that what were the actual facts which Secretary has reflected that the work was of permanent nature, the court is still of the opinion that such endorsement, firstly it is scored off and why. Secondly it is not of confirmatory by the General Manager complex who was the ratifying authority whether this endorsement was actually the endorsement to raise such inference of such conventional practice. If this document has come in the possession of the worker which is maintained in the course of official business of the heavy complex of industry. It is criticised as being uncertain and capable of no faith. Suddenly this document to come in the evidence at the last stage when not filed earlier raises the presumption of the inefficiency of the clerical staff concerned, incharge of this document without consultation of the General Manager. To be precise, the court is not making the basis with definite precision that the work of which they were employed was of permanent nature or to suggest such mala fide that termination after 89 days is deliberate, for which there must be evidence of the high order. It is the privilege of the employer to terminate the services if the employee is engaged for casual work. However in the facts as have been placed in the evidence showing the long period of service even of daily wage they have acquired the right to be considered for permanent absorption, based on the rules of suitability skill, antecedent through selection, as often the court has taken the judicial notice in series of such cases coming before the Court.
13. The court is also of the opinion that the requirement of probation is one of the essential element in view of the definition of permanent workman, or otherwise it will be putting clog on the powers of the employer to make any person as permanent, even if there is no vacancy or keeping in view the rationale of the financial aspect. In this context, the court is also referring case although it applies to the civil servant but in view of this court, the principles are same:
I respectfully quote the observations of his lordship: "Continuation of the civil servants on probation or temporary appointment, cannot in the absence of express order of confirmation, entail automatic confirmation after expiry of probation period. There is no concept of automatic confirmation. It is discretion of employer on the availability of permanent post. 1987 S C M R 156."
14. In the result, therefore the applicants, remained the daily wage workers. They have not become permanent but they have acquired the right due to long service to be considered for permanent job by going through procedure of selection. All these appointment orders also will show that there is no condition of probation but purely daily wage of which they have signified the acceptance of all the terms and conditions.
15. Regarding termination, the termination orders have also been issued to serve the requirements under Standing Order 12. The reference is made to Annexure‑A/5, A/6, A/7, A/8 A/9, A/10, A/12, A /13, A /14, A /15 in the main file. Termination orders have been produced of Mr. Noor Muhammad, Mr. Muhammad Ashiq and of other Applicant. And also in either of the cases Ibrahim Ali and file of Kamal Nasir .
16. This is also to point out that the respondent has not placed the record before the Labour Court of the daily wage worker to show the time their break in service. General allegation has come in the application that the respondent has adopted the conventional practice of terminating services after 89 days. This is also matter of indulgence that Applicants also in their application have mentioned the appointment designations, but not shown the date of removal or termination. The cause of action should have been stated with exact precision, as often follows that every draftsman in the petition mention the date of termination. Here the general observation is that after every 89 days services are terminated. In other words period is admitted, although not exactly when the burden of the proof shifted on the complex to produce the record of every employee, concerned to seek redress. Similarly the longest period of service though with breaks is not denied.
17. Finally the question arises and the court will repeat and has been repeating in the consistent view taken in cases of this nature that for the permanency of the post there are rules in the context of the application of law. To support also further what is the significance of probation the court has referred a book on civil services. In chapter where the terms and conditions of the service of the civil servant is seen, rule 3 says that in respect of any service or post, the satisfactory completion of probation includes the passing of the prescribed examination, test or course or successful completion of any training.
18. In view of this analogy the Labour Court also has the similar view that the word satisfactory completion of probation in section) 2(g) cannot be in the different context. Before the employee comes for the job he is to take the choice. If the appointment order is simply of the daily wage. Even if he is employed on the same type of work, it is purely the choice of the employer. The worker or the workman may not be knowing what is the strength required to absorb against the permanent vacancies, what are the resources. So every policy is to be followed by the employer to its needs and requirements and to maintain the spirit of the I.R.0. in the context of the terms and conditions to which he is bound. Throughout the evidence this is the only grievance that they have put up long service and they should be made a permanent or have become permanent. The court has discussed this legal aspect. In the view of the labour court they can only acquire the right to be considered for permanent absorption in view of their continuous working on the same type of casual work which is also permanent work in the Steel Mill, but it is to be against the permanent vacancies subject to the selection.
19. The next aspect that follows, that if the services of daily wage workman have been terminated, according to the need and requirements of the Steel Mill, they have not become permanent but they can be considered for permanent absorption if there is permanent vacancy and the selections. The Steel Mill, whenever invites' application, they are to be called and their length of service is to be considered, for the skill they used and they became indispensable to the complex, because they were retained for longer time despite the break. The court has discussed elaborately that to become permanent, the probation is the important requirement to be specifically mentioned, at the time of the appointment order, so that court may be in position to know that the appointment, was an invitation to the absorption subject, to the satisfaction of probationary working. In the case like this if they were called for purely ad hoc job according to the requirements but retained long time they acquired the right 'of being considered for permanent post. The Court also is of this opinion that if every employee is made permanent, despite no resources or no desirability of keeping that strength, they cannot force the employer to keep them permanently unless they have signified the acceptance. The court therefore is not taking the case from sentimental point of view, but purely on legal consideration.
20. The court has also further found that most of the workers after being employed for daily wage working assume the impression, mostly on sentiments that they have become permanent and they should be absorbed. The court has examined number of matters and taken consistent view that their status is to be considered in context of the definition of section 2(g) I.R.O. where the word "And" is used in clause (b) that workman is said to be permanent when he has a fulfilled the requirement on probation understood in the legal concept. The court also further examined often this aspect that the work have remarked that by employing them for 89 days the employ exploits the labour. This interpretation is not possible, for 1 employer is within jurisdiction to terminate the services of purely hoc at any time, but also regard is to be had that if there is other person with the same skill he can also be employed but if he allow the same person to be employed, of course he has to maintain t spirit of section 3 and 4 of the Standing Orders Ordinance regarding the rights and obligation of workman, understood in that concept definition even of the daily wage, to give them confidence. T appointment order however brief, it may be and the termination order be issued, for if the daily wage is also being challenged and section 25‑A for the redress of the grievance, the discretion exercise or the law they followed be placed before the court for the satisfaction of the legal rights before the court.
In the result .the applications are dismissed to the extent the observations as discussed in the decision. Reference is made al to P L D 1980 page 323.
M. Y.H./989/Lb.S Petitions dismissed.