Stereo. H C J D A 38.

IN THE LAHORE HGIH COURT, MULTAN

BENCH, MULTAN.

JUDICIAL DEPARTMENT.
JUDGMENT:
Writ Petition No. 4986 of 2015.
Tauqeer Abid, TCR Cr.I, Pakistan Railways, Multan.

VERSUS
Divisional Superintendent, Pakistan Railways, Multan, etc.

Date of hearing: 23.04.2015 ..

Petitioner by: Kanwar Intizar Muhammad Khan, Advocate .
Respondents By: Rao Muhammad Iqbal, Advocate .

Ali Akbar Qureshi, J:- The

petitioner, through this petition, has prayed,
that he was appointed on contract basis as
Ticket Collector Grade-I (BS-5), on
08.04.2013, for a period of two years under a
scheme issued by the Prime Minister of
Pakistan, namely, Prime Minister Family
Assistance Package; the petitioner is still
working against the said post; the respondents
made a promise to regularize his service but
no action was taken; the respondents have
regularized the services of all the employees
appointed under Prime Minster Family
Assistance Package, but the petitioner has
been denied to his fundamental rights and is
being treated discriminatory. Hence, this writ
petition.
2. The prayer made by the petitioner was
opposed by the other side on the ground, that
W. P. No. 4986 of 2015.
2

the petitioner was appointed on contract basis

for a specific period, therefore, his service
cannot be regularized.
3. It is not denied by the respondents,
that the petitioner was appointed on contract
basis and is still working in the department
against the said post. The most important
aspect of this case which requires
consideration, that the respondent-department,
as evident from a notice/letter dated
08.03.2012, regularized the services of the
other employees, appointed on contract under
the same scheme, namely, Prime Minster
Family Assistance Package, but the said
benefits have not been extended to the
petitioner which is violative of the guaranteed
and secured rights of the petitioner under
Article 2-A, 4 & 25 of the Constitution of the
Islamic Republic of Pakistan, 1973. The
Hon’ble Supreme Court of Pakistan, through
an esteemed judgment cited as PAKISTAN
TELECOMMUNICATION COMPANY
LIMITED through General Manager and
another v. MUHAMMAD ZAHID and 29
others (2010 SCMR 253), has laid down, that
any employee whether on work charge or on
contract, will attain the status of a permanent/
regular employee after expiry of the ninety
days. The relevant portion (at Page No. 284)
is reproduced as under:
“Undisputedly, the crux of the case of the
private respondents has been that they are
being discriminated as against the other
Operators performing service permanently
with the PTCL or having been regularized in
due course as Operators in the International
W. P. No. 4986 of 2015.
3

Gateway Exchange performing similar

functions in the Exchange apparently amounts
to have been grossly violated as against the
guaranteed rights under Articles 2-A, 4, and
25 of the Constitution by depriving them of
their emoluments besides all other service
benefits etc., described in paragraph No.2 of
the writ petition being paid to other Operators
performing service in the said Exchange and
similarly placed and, therefore,
discriminatory treatment has been meted out
to the writ petitioners employed on daily
wages and not regularized despite having
rendered service for a period more than 2
years as contract employees renewed from
time to time mentioned in para No. 16 (supra),
therefore, the impugned judgment is
unexceptionable irrespective of the status of
the private respondents be that of a ‘worker’
or a ‘civil servant’ or the ‘contact employees’
having no nexus to the maintainability of the
writ petition on the ground of discrimination
meted out to them.”

4. Another latest esteemed judgment, the

Hon’ble Supreme Court of Pakistan has laid
down in EJAZ AKBAR KASI and others v.
MINISTRY OF INFORMATION AND
BROADCASTING and others (PLD 2011
Supreme Court 22), the relevant portion (at
Page No.25) is reproduced as under:

“Thus in such view of the matter we are of the

opinion that the Board of Directors may have
not declined the petitioners’ regularization,
however it is a fact that regularization of
contract employees, if at all is to be made is to
depend upon the performance. The petitioners
who have appeared in person state that they
have qualified the test and their performance
as well is up to mark which is evident that for
the last more than ten years they have been
allowed to continue work against the
vacancies which they are holding without any
interference and there is, now, no question of
performance at all as they have already shown
their performance.
4. Be that as it may, we are not inclined to
agree to the reasons which prevailed upon the
Board in not regularizing the Group 4, 5 and
6 when at the same time the employees of
other Groups as noted hereinabove were
regularized beside other individual persons
W. P. No. 4986 of 2015.
4

whose names have also been mentioned

hereinbefore. This Court has laid down a
criteria in respect of such employees who have
somehow identical contentions in the case of
Ikram Bari and others v. National Bank of
Pakistan through President and another (2005
SCMR 100). Therefore, we are of the opinion
that the case of the petitioners deserves to be
considered by the Board of Directors for the
reasons noted hereinabove as they cannot be
discriminated without any cogent reason by
violating the provisions of Article 25 of the
Constitution and at the same time after having
spent a considerable period of their lives in
the Organization performing duties on
contract basis. It is also the duty of the
Organization to protect their fundamental
rights enshrined in Article 9 of the
Constitution.”

5. The legislature has defined the

permanent workman in Standing Orders 1 (b),
that if a worker is appointed against a project
which is likely to be continued more than nine
months and the worker remained in service
for nine months, will attain the status of a
regular employee. The relevant provision i.e.
Para 1. (b). of Schedule of West Pakistan
Industrial and Commercial Employment
(Standing Orders) Ordinance, 1968, is hereby
reproduced as under:
SCHEDULE.
STANDING ORDERS
1. Classification of Workmen: (a) Workmen
shall be classified as--
(1) …
(2) …
(3) …
(4) …
(5) …
(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 another occupation in the industrial
or commercial establishment, and includes a
badli who has been employed for a continuous
period of three months or for one hundred and
W. P. No. 4986 of 2015.
5

eighty-three days during any period of twelve

consecutive months, 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.]”

6. The only question, which pertains to

the status of the respondents and their
regularization by afflux of time and law
applicable thereon, requires consideration.
7. In this case, the petitioner is working
against the same Post and Project from the
last many years, therefore, it can safely be
held, that the post and project against which
the petitioner is working, is of permanent
nature, thus, the denial of the respondents to
regularize the services of the petitioner as
permanent workmen, is not permissible in
law.

8. The Hon’ble Supreme Court of

Pakistan has not appreciated rather
discouraged the practice of departments,
government or the private, who hire the
service of the poor people by issuing the
appointment letter of eighty nine days just to
defeat the legal provisions applicable therein,
in fact it is the device which is based on mala
fide being used to deprive the poor worker
who served the department for years. The
Hon’ble Supreme Court of Pakistan many a
times through elaborative judgments has
deprecated this practice and regularized the
services of the workers appointed on work
W. P. No. 4986 of 2015.
6

charge basis or on contract. I am fortified by

an esteemed judgment of the Hon'ble
Supreme Court of Pakistan titled Punjab Seed
Corporation and 2 others v. Punjab Labour
Appellate Tribunal and 2 others (1995 PLC
539). The Hon'ble Supreme Court of Pakistan
at page 540, has observed as under:

“3. The contentions of the learned counsel for the

petitioners that the respondent was appointed on
‘work charge basis’ to supervise wheat
procurement which is of seasonal character; that
the respondent was not a workman within the
meaning of the Standing Orders Ordinance; that
respondent’s letter of appointment was issued by
an officer who was not empowered; that the order
of termination was legal; that the respondent had
been paid his remuneration from contingency
showing the character of his appointment have
been fully dealt with elaborately by the Labour
Appellate Tribunal as well as by the learned High
Court in the light of the pleadings of the parties
and the record placed on the file.
4. The learned High Court finding no substance
in the aforementioned contentions, which are
reiterated before us, held as under:-

There is no substance in the arguments of

the learned counsel that the respondent
was a temporary workman inasmuch as no
such objection as never taken by the
petitioner in his written statement. Even
otherwise, the appointment letter
Annexure ‘A’ would demonstrate that he
was appointed on 25.06.1980 and that his
services were terminated on 20.07.1981.
In other words, the respondent had been
working on his job beyond six months to
the satisfaction of the Corporation. There
was also no complaint against him. This
being so, he became a permanent
workman in the petitioner-corporation
within the meanings of West Pakistan
Standing Orders Ordinance, 1968 against
a permanent job. The learned Tribunal has
appreciated the evidence on record and
concluded that the respondent was a
permanent workman under the petitioner.
This is, undoubtedly, a finding of fact,
having been given by the learned
Appellate Tribunal on the basis of reliable
evidence which cannot be interfered with
in these proceedings.
W. P. No. 4986 of 2015.
7

5. For the reasons we find no infirmity in the

judgment of the learned High Court refusing to
interfere with the finding of fact reached by the
learned Appellate Tribunal which finding is based
on proper appraisal of the evidence of the parties.
We, accordingly, refuse to grant leave to appeal
and dismiss the petition.”

9. Since the petitioner, in view of the

law laid down by the Hon'ble Supreme Court
of Pakistan, has attained the status of
permanent workman/worker by afflux of time,
therefore, the respondents will have to
regularize the service of the petitioner in
accordance with law, and any action, if
required in case of any misconduct, will be
initiated under Order 12 of the Standing
Orders Ordinance and not otherwise.

10. It is not denied, that the petitioner is

working from the last many years, and suffice
to hold, that the petitioner is needed to the
respondent-department and further, even
otherwise, it is also to be taken into
consideration that the petitioner has become
over-age during the period of his service and
cannot go anywhere nor can apply to earn his
livelihood in any department or organization,
therefore, the respondent-department instead
of involving him in litigation, should have
regularized the services of the petitioner.

11. In another esteemed judgment

reported as Executive Engineer, Central Civil
Division, Pak. P.W.D. Quetta v. Abdul Aziz
and others (PLD 1996 Supreme Court 610),
the Hon'ble Supreme Court of Pakistan, while
W. P. No. 4986 of 2015.
8

dealing with the question of permanent

worker, at page 621, has ruled as under:

“The ratio of the above judgment in the case

of Muhammad Yaqoob (supra) seems to be
that the period of employment is not the sole
determining factor on the question, as to
whether a workman is a permanent workman
or not, but the nature of the work will be the
main factor for deciding the above question.
In other words, 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 Standing Orders
Ordinance provided, 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. It may be observed
that once it was proved that the respondents
without any interruption remained employees
between a period from two years to seven
years, the burden of proof was on the
appellant-department to have shown that the
respondents were employed on the works
which were not of permanent nature and
which could not have lasted for more than
nine months. From the side of the appellant
nothing has been brought on record in this
behalf. The appellant-department is engaged
in maintaining the Government residential
and non-residential buildings and
constructing itself and/or causing construction
thereof. The above work as far as the
appellant-department is concerned is of
permanent nature. In this view of the matter,
the finding recorded by the Labour Courts in
this respect cannot be said to be not founded
on evidence on record.”

12. In another judgment cited as Tehsil

Municipal Administration v. Muhammad Amir
(2009 PLC 273), has further elaborated the
status of a workman at page 280, the relevant
paragraph is reproduced as under:

“13. In the instant case, the work being

performed by the respondent as Tube-Well
Operator was connected with ‘water work’,
‘well’ within the meaning of construction
W. P. No. 4986 of 2015.
9

industry as defined in section 2 (bb) of the

Standing Orders Ordinance. There is nothing
in evidence to indicate that he was being paid
salary only for those days of the week during
which he worked. He served initially in the
Public Health Engineering Department from
March, 1993 to 2001 when his services were
transferred to TMA Bhalwal where he
continued to work till 15.08.2005 when he was
informed that his services had been
terminated w.e.f. 01.09.2004. In the face of
this evidence on record, it is manifest that he
was engaged on a work of permanent nature
within the meaning of clause (b) of paragraph
(1) of the Schedule to the Standing Orders
Ordinance as reproduced in para-10 above.”

13. The other esteemed judgments

applicable in this case are as under:

1. Pakistan International Airlines v. Sind

Labour Court No.5 and others (PLD 1980
Supreme Court 323)

2. Izhar Ahmad Khan and another v. Punjab

Labour Appellate Tribunal, Lahore and
others (1999 SCMR 2557)

3. Managing Director, Sui Southern Gas

Company Ltd., Karachi v. Ghulam Abbas
and others (PLD 2003 Supreme Court
724)

4. Tehsil Municipal Administration,

Rahimyar Khan and others v. Hanif Masih
and others (2008 SCMR 1058)

5. Province of Punjab through Secretary

Communication and Works Department
and others v. Ahmad Hussain (2013
SCMR 1547)

6. WAPDA and others v. KHANIMULLAH

and others (2000 SCMR 879).

14. The learned counsel for the

respondent-department, during the course of
arguments, has referred a recent judgment of
the Hon'ble Supreme Court of Pakistan cited
as Tehsil Municipal Officer, TMA Kahuta and
W. P. No. 4986 of 2015.
10

another v. Gul Fraz Khan (2013 SCMR 13).

The aforesaid esteemed judgment has been
passed by the Bench consisting of three
Hon’ble Judges of the Hon'ble Supreme Court
of Pakistan, whereas the judgment cited as
Managing Director, Sui Southern Gas
Company Ltd., Karachi v. Ghulam Abbas and
others (PLD 2003 Supreme Court 724),
referred by learned counsel for the petitioner
supra, is of a Bench consisted of five Hon’ble
Judges of the Hon'ble Supreme Court of
Pakistan. Thus, following the principle laid
down by the Hon’ble Supreme Court of
Pakistan in various judgments, that the
judgment of the larger Bench would follow to
resolve the controversy, hence the judgment
(supra) delivered by the Hon’ble five Judges
of the Apex Court would govern the
controversy in this matter. Even otherwise,
the ratio decidendi of the other judgments on
this point goes in favour of the petitioners.

15. The Hon’ble Supreme Court of

Pakistan, while dealing with such type of
situation, has already dictated, that the benefit
of the judgment of the Court should be
extended to others who might not be parties to
the litigation and are falling in the same
category, instead of compelling them to
approach the legal forum. Further, even
otherwise, Article 25 of the Constitution of
the Islamic Republic of Pakistan, 1973 is also
clear on the point, that all the citizens are
entitled to equal protection of law. I am
 W. P. No. 4986 of 2015.
11

fortified by the esteemed judgments of the

Hon’ble Supreme Court of Pakistan, cited as
MUHAMMAD ZAEEM KHALID and others
v. BAHA-UD-DIN ZAKERIA UNIVERSITY
and others (1995 SCMR 723), Hameed
Akhtar Niazi v. The Secretary, Establishment
Division, Government of Pakistan and others
(1996 SCMR 1185), and TARA CHAND and
others v. KARACHI WATER AND
SEWERAGE BOARD, KARACHI and others
(2005 SCMR 499).

16. In view of the law laid down by the

Hon’ble Supreme Court of Pakistan, this
petition is allowed. The respondents are
directed to regularize the service of the
petitioner alongwith the back benefits, in
accordance with law.

(Ali Akbar Qureshi)

Judge

Approved for reporting.

Judge.
*Zia-ur-Rehman Farooqi*