DILBAR MASIH Versus CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE

1. MALIK JAVID IQBAL WAINS J.--- Through this single judgment, I intend to decide the instant constitutional petition along with the connected petitions, the list of which is annexed hereto as Annexure-A, as a common question of law and facts is involved.

2. The petitioners are aggrieved by the impugned judgment dated 28.04.2023 passed by the Punjab Labour Appellate Tribunal, Lahore, Camp at Rawalpindi (hereinafter Appellate Tribunal ), whereby the appeal filed by the Managing Director, WASA/respondent No.3 was accepted by setting aside the judgment dated 08.06.2022 passed by Punjab Labour Court No.VI, Rawalpindi (hereinafter Labour Court ), through which the grievance petitions filed by the petitioners were accepted, and they were reinstated in service with a direction to regularize them as per seniority.

3. Although the petitioners had been working against different posts, however in the petitions in hand, the common grievance has been raised, which pertains to their reinstatement in service and setting aside their termination orders.

4. Briefly, the facts are that the petitioners, being daily wage workers of WASA (RDA), Rawalpindi, filed constitutional petitions before this Court seeking regularization under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter Ordinance ), asserting that they had been working against permanent posts for several years. During the adjudication of the said writ petitions, on the request of learned counsel for the petitioners, the petitions were transmitted to WASA (RDA), Rawalpindi, with directions to treat them as representations and decide the same strictly in accordance with law within two months. In compliance thereof, representations of the petitioners were turned down through orders of different dates. Being aggrieved, the petitioners filed contempt petitions; however, learned counsel for the petitioners opted to withdraw the same in order to avail appropriate remedies.

5. The petitioners then filed grievance petitions under Section 33 of the Punjab Industrial Relations Act, 2010 before the Labour Court, which were contested by respondents Nos.3 and 4 (hereinafter respondents ) by filing para-wise comments/written statements. In their written statements, the respondents admitted that the petitioners were appointed on daily wage basis and had performed duties for several years. However, they asserted that the petitioners were hired for 89-days stopgap arrangements and could be terminated at any time without issuing notice or assigning any reason. As the petitioners were no longer employees, the respondents claimed that they were not liable to regularize their services.

6. The Labour Court, after recording evidence from both parties, accepted the grievance petitions filed by the petitioners vide judgment dated 08.06.2022 thereby directing respondents to reinstate them forthwith and also to regularize them within two months while fixing their seniority.

7. Being aggrieved by the said judgment, the respondents filed an appeal before the Appellate Tribunal, which was accepted vide judgment dated 28.04.2023, thereby setting aside the judgment of the Labour Court.

8. Arguments heard. Record perused.

9. It is an undisputed fact that the petitioners had been working on daily wage basis with the respondents for several years and had been receiving monthly salaries as per the settled terms and conditions outlined in their appointment letters, which was also admitted by the respondents in their written statement submitted before the Labour Court. During their service, no adverse remarks or disciplinary action were reported against them. The nature of their duties was manual, thus placing them squarely within the protection of labour laws.

10. A significant divergence between the findings of the Labour Court and the Appellate Tribunal lies in the status of the petitioners. The Labour Court treated them as permanent workmen under Section 1(b) of the Ordinance and extended them corresponding benefits. Conversely, the Appellate Tribunal declared them to be temporary workmen and dealt with them Section 12(2) of the Ordinance accordingly.

11. Before dilating into the matter further, I first deem it appropriate to explain the above two terms of workmen, which have been provided in the Ordinance as under:-

1. Classification of Workman

(a) Workmen shall be classified as

2. 1.

3. 2.

4. 3.

5. 4.

6. 5.

7. 6.

(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 an other occupation in the industrial or commercial establishment including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lockout or strike) or involuntary closure of the establishment; (and include a badli who has been employed for a continues period of three months or for one hundred and eighty three days during any period of twelve consecutive months.

8. (c)

9. (d)

(e) A temporary workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months.

10. In landmark Judgment of the Hon ble Supreme Court of Pakistan in a case of Town Administration and another v. Mohammad Khalid and others (2024 SCMR 1852), these two terms of workmen have also been discussed, the relevant portion of the judgment is hereby reproduced hereinafter: -

12. ......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 Ordinance, 1968, provided that 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.

12. In the present case, the petitioners had been continuously serving against various posts for several years, albeit with artificial breaks. The duration of their employment far exceeded the nine-months threshold, clearly indicating that their work was of a permanent nature. It is important to discuss here that the respondents did not claim that the petitioners were terminated upon completion of a task, project, or due to the abolition of posts.

13. Learned counsel for the respondents conceded during the course of arguments that other daily wage workers were recruited following the termination of the petitioners, which admission clearly demonstrates the continuity of the nature of work performed by the petitioners. In these circumstances, there left no ambiguity to hold that the petitioners were appointed against the permanent nature of work and have attained the status of permanent workmen.

14. It is pertinent to note here that the Government of Punjab, Services and General Administration Department (Regulations/O&M Wing), issued a Notification No. SO(ERB)5-44/2019/WC-DW-Policy dated 29.01.2021, clarifying the status of work-charged employees, daily wagers, and contingent paid staff. According to the said notification, daily wagers who have completed nine months of service may be considered as permanent workmen under Section 1(b) of the Ordinance and are entitled to all rights and benefits afforded/granted to permanent workmen.

15. From perusal of the impugned judgment, it shows that while the Appellate Tribunal applied Section 12(2) of the Ordinance in this case, however the court failed to consider the implications of Section 12(3), which mandates that no workman shall be terminated, removed, retrenched, discharged, or dismissed except by a written order explicitly stating the reasons for such action. This omission renders the findings of the Appellate Tribunal legally flawed and without justification.

16. Another crucial aspect is that the petitioners had earlier approached this Court via writ petitions, seeking regularization of their services, which were converted into representations and forwarded to the respondents for decision. However, shortly after rejecting the representations, the petitioners were verbally terminated without any notice or written order. Learned counsel for the petitioners has pointed out that several similarly placed daily wage employees had been regularized by the respondents in the light of orders passed by this Court in Writ Petitions Nos.1439/2019, 304/2020 and 971/2019, whereas the petitioners were arbitrarily excluded for grant of this benefit, which amounts to discrimination and violation of the Article 25A of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter Constitution ). When questioned, learned counsel for the respondents had no plausible explanation except to assert that the petitioners were temporary workers, a justification that does not withstand scrutiny in light of admitted facts and settled law.

17. The termination of service through a verbal order is not only inconsistent with the labour and service laws but also violates the principles of good governance. The august Supreme Court of Pakistan while dealing with the question of oral termination in a case of The Chairman Agriculture Policy Institute, Ministry of National Food Security and Research, Government of Pakistan, Islamabad and another v. Zulqarnian Ali and another (2022 SCMR 636) held as under:

5. There is no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing the explicit reasons or cause of termination even in the case of termination simpliciter and for disciplinary proceedings on account of misconduct, obviously separate procedure is laid down which accentuates the issuance of show-cause notice, holding inquiry unless dispensed with by the competent authority considering all attending circumstances of the case and after personal hearing, appropriate action may be taken in accordance with the law. The termination of service by a verbal order is alien to the labour and service laws of this country and also against the principle of good governance which is a process of gauging whether the Government, its departments/ institutions and authorities are conducting their affairs lawfully and performing their duties honestly, conscientiously and transparently including their process of decision making in accordance with rules and regulations.

11. (Emphasis Supplied)

18. One of the most pressing legal question arising from the present petitions concerns the status of the petitioners as workmen, whether they are to be treated as permanent or temporary. This is not a matter to be resolved by the internal policy preferences or administrative will of the employers, but rather, it is a matter of statutory interpretation and constitutional enforcement, squarely governed by the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which must be adjudicated in the light of both objective legal standards and the constitutional imperatives of equality, fairness, and due process.

19. It is an established legal position, consistently upheld by superior courts, that where a statutory mandate exists, it overrides and takes precedence over administrative discretion. Clause 1(b) of the Schedule of the Ordinance provides that a permanent workman is one who has completed nine months of service of the work of a permanent nature, coupled with satisfactory conduct. The law confers a legal status to the nature and length of service, and not to the employer s classification or intention. It is settled law that where a statute confers a right or a particular standing, no executive authority can arbitrarily deny it to the petitioners. The executive has no discretion to deny a right that has crystallized by operation of law. Where the service conditions satisfy the criteria set out in a statute, the resulting status is enforceable as a matter of right.

20. In the present case, the petitioners have continuously served the respondents organization/department for several years in positions that are considered permanent, thereby meeting the legislative criteria under clause 1(b) of the Ordinance. The refusal to grant them the status of permanent workmen, despite their fulfillment of the legal requirements, is not only unlawful but also an act in defiance of legislative intent

21. The doctrine of equality is not a mere formality; it mandates the uniform application of legal standards to individuals in similar situations. When the State acts, it must do so fairly, justly, and equitably. Discriminatory treatment by a public authority contravenes the provisions of the Constitution. Therefore, the petitioners exclusion is not merely an instance of administrative arbitrariness, but a constitutional violation that warrants judicial intervention.

22. Termination of service without notice or written order is patently unlawful, as it violates Section 12(3) of the Ordinance, which mandates a written order with stated reasons for termination. Termination through verbal orders or silent exclusion is not only procedurally defective but also infringes upon the right to livelihood, a fundamental aspect of Article 9 of the Constitution, which guarantees the security of person. The right to livelihood is an inseparable part of the right to life, and any arbitrary deprivation of this right is unconstitutional.

23. In light of these legal and constitutional violations, the continued denial of rights to the petitioners is not only legally untenable but also ethically indefensible. The petitioners have fulfilled all statutory requirements to attain the status of permanent workmen, and the refusal to recognize their lawful status constitutes a breach of mandatory legal provisions. Moreover, the failure to follow lawful termination procedures violates both statutory law and fundamental rights guaranteed under Articles 4, 10A, and 25 of the Constitution.

24. In light of the above discussion, the instant writ petition along with connected writ petitions (Annexure-A) are allowed. The judgment passed by the learned Appellate Tribunal is hereby set aside. Consequently, the termination of the petitioners is declared to be illegal and unlawful, and all orders issued in this regard are also nullified. The respondents Nos.3 and 4 are directed to reinstate the petitioners into service as permanent workmen from the date of judgment of this Court wherefrom the department will facilitate the petitioners for joining against their posts by treating them as permanent workmen. They shall be entitled to all rights and benefits available under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, including those outlined in the Notification dated 29.01.2021 issued by the Government of Punjab in accordance with law. The judgment of the learned Labour Court is modified to that extent as mentioned above.

12. Annexure-A

13. Sr. No.

14. Writ Petition Nos.

15. Name of Petitioner/Employee

16. Designation

17. Date of appointment

18. 1.

19. 3271/2023

20. Hassan Mehboob son of Mehboob Hussain

21. Valveman

22. 2019

23. 2.

24. 3272/2023

25. Atif Masood son of Ghulam Ali

26. Helper

27. 2019

28. 3.

29. 3273/2023

30. Arshad Masih son of Khurshed Masih

31. Sewerman

32. 2019

33. 4.

34. 3274/2023

35. Muhammad Zahid son of Noor Muhammad

36. Driver

37. 2019

38. 5.

39. 3275/2023

40. Suleman Salamat son of Salamat Masih

41. Sewerman

42. 2019

43. 6.

44. 3276/2023

45. Pervaiz son of Amanat Masih

46. Sewerman

47. 2019

48. 7.

49. 3277/2023

50. Tahir Mehmood son of Bostan

51. Driver

52. 2019

53. 8.

54. 3278/2023

55. Sajid Mehmood son of Muhammad Mir Dad

56. Helper

57. 2019

58. 9.

59. 3279/2023

60. Hammad Javed son of Muhammad Javed

61. Helper

62. 2019

63. 10.

64. 3280/2023

65. Muhammad Junaid Kiyani son of Muhammad Younas Kiyani

66. Helper

67. 2018

68. 11.

69. 3281/2023

70. Sunny son of William Masih

71. Sewerman

72. 2019

73. 12.

74. 3282/2023

75. Ch. Ikram-ul-Haq son of Ch. Amanat Ullah

76. Complaint Receiver

77. 06.12.2019

78. 13.

79. 3283/2023

80. Sardar Muhammad son of Wali Muhammad

81. Valveman

82. 30.12.2019

83. 14.

84. 3284/2023

85. Mateen Zahid son of Zahid Hussain

86. Driver

87. 2019

88. 15.

89. 3285/2023

90. Babar Khan son of Javed Khan

91. Driver

92. 2019

93. 16.

94. 3286/2023

95. Muhammad Ubaid son of Mulazim Hussain

96. Driver

97. 2019

98. 17.

99. 3287/2023

100. Haroon Masih son of Talib Masih

101. Sewerman

102. 06.12.2019

103. 18.

104. 3288/2023

105. Raja Zubair Aslam son of Raja Muhammad Aslam

106. Helper

107. 2019

108. 19.

109. 3289/2023

110. Muhammad Bashir son of Dost Muhammad

111. Driver

112. 2019

113. 20.

114. 3290/2023

115. Danish Safdar son of Muhammad Safdar

116. Valveman

117. 02.10.2019

118. 21.

119. 3291/2023

120. Shahid Pervaiz son of Pervaiz Masih

121. Sewerman

122. 06.12.2019

123. 22.

124. 3292/2023

125. Syed Fayyaz Hussain Shah son of Syed Gulzar Hussain Shah

126. Chowkidar

127. 2019

128. 23.

129. 3293/2023

130. Naeem Mukhtar son of Muhammad Mukhtar

131. Chowkidar

132. 2017

133. 24.

134. 3294/2023

135. Muhammad Nawaz Khan Bangash son of Taj Khan Bangash

136. Driver

137. 2019

138. 25.

139. 3295/2023

140. Amanull Masih son of Nazar Masih

141. Sewerman

142. 2019

143. 26.

144. 3296/2023

145. Waqas Noor son of Pehelwan Khan

146. Driver

147. 2019

148. 27.

149. 3297/2023

150. Waheed Akhtar son of Zahid Akhtar

151. Helper

152. 2019

153. 28.

154. 3298/2023

155. Amir Masih son of Amanat Masih

156. Sewerman

157. 2019

158. 29.

159. 3299/2023

160. Ramzan Hussain Shah son of Gulzar Hussain Shah

161. Valveman

162. 02.10.2019

163. 30.

164. 3300/2023

165. Sabir Jan son of Maqsood Masih

166. Driver

167. 2019

168. 31.

169. 3301/2023

170. Faisal Suliman son of Muhammad Suliman

171. Chowkidar

172. 2019

173. 32.

174. 3302/2023

175. Abdul Kareem Khan son of Muhammad Nawaz Khan

176. Helper

177. 2019

178. MQ/D-8/L Petitions allowed.