Sh. Aamer VS S.E.

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Intra-Court Appeal No.527 of 2002 (Sh. Aamar v. Superintending Engineer, etc.)

JUDGMENT

Date of hearing: 30.03.2015

Appellant by: Mr. Asmat Kamal Khan, Advocate.

Respondents by: Ms. Samia Khalid, AAG with Qazi Muhammad Arif, SDO, Sub-Division No.7, Lahore.

Faisal Zaman Khan, J. Through this

Intra-Court Appeal, an order dated 31.5.2002 passed by a learned Single Judge-in-Chambers in Writ Petition No.17470/1998 has been assailed. By virtue of this order, writ petition filed by the appellant was dismissed.

2.The case set up by the appellant is that he was appointed as Air Conditioner Supervisor with the respondent- department on 03.01.1990. Subsequent to that, he has been working as an Air Conditioner Mechanic. He has been serving the respondent-department as a temporary work charge employee since 1990 with some breaks, however, since 21.11.1996 to 30.6.1998 he remained serving without any break. In view of the fact that appellant has been working for

the respondent-department for a continuous period of nine months, a Writ Petition No.28085/1997 was filed by him before this Court for his regularization in service. During the currency of the writ petition, respondent-department produced his termination order dated 01.7.1998. Feeling aggrieved, appellant assailed the said termination order before this Court through Writ Petition No.17470/1998 and the learned Single Judge-in-Chamber vide order dated 31.5.2002 dismissed the same, therefore, this appeal.

3.At the outset, learned Law Officer appearing on behalf of the respondent-department has raised a preliminary objection that appellant being a workman cannot invoke the jurisdiction of this Court, therefore, the writ petition as well as this ICA are not maintainable. She places reliance on Qaisar and others v. Muhammad Shafaqat Sharif [2012 SCMR 743] to fortify her argument.

4.Replying to the above, learned counsel for the appellant while relying on Trustees of the Port of Karachi v.

Muhammad Saleem [1994 SCMR 2213] has submitted that in view of the termination of the appellant, he no more remains to be a workman, therefore, he had no other remedy to assail the order of termination but for to approach this Court through a writ petition.

5.We have heard the learned counsel for the parties and have gone through the available record.

6.The case set up by the appellant is that he has been working for the respondent-department for a considerable period of time without a break, therefore, he became a permanent workman under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance) and, thus, his services could not be terminated in an unceremonious manner.

7.It shall be in the fitness of things to first take up the issue of assumption of jurisdiction by this court as contemplated in judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others [2011 SCMR 592]. We have gone through the judgments cited by both the learned counsel. The judgment of Trustees of the Port of Karachi relied upon by learned counsel for the appellant elaborates definition of a workman as contemplated in section 2 (xxviii) of Industrial Relations Ordinance, 1969 (IRO). It has been held that an employee whose services have been terminated cannot invoke the jurisdiction of the Labour Court under the

IRO.

8.In order to analyze the aforenoted question, a comparative reading of the above enactments is required from which one can make out that the mandate to promulgate IRO and the Ordinance is different. From the preamble of IRO it is manifest that the law has been made in order to amend

and consolidate laws for formation of trade unions, the regulation of relations between the employer and the workman and avoidance and settlement of any difference or dispute arising between them and matter ancillary and connected therewith. Contrary to this, the promulgation of the Ordinance is on a different tangent. The preamble of the Ordinance would show that the same is promulgated to amend and consolidate laws relating to Industrial employment. In both these enactments term Workman has been defined, definitions of which are reproduced for convenience:-

IRO 1969 STANDING ORDER 1

(xxviii)“Worker” and “workman” means any person “1. Classification of not falling within the definition Workmen: (a) Workmen shall of employer who is employed be classified as— (including employment [as a supervisor or] as an apprentice) (1) Permanent, is an establishment or industry for hire or reward either (2) Probationers, directly or through a contractor whether the terms of (3) Badlis, employment be express or implied, and for the purpose of (4) temporary, any proceeding under this Ordinance in relation to an (5) apprentices. industrial dispute includes a person who has been dismissed, [(6) Contract worker] discharged, retrenched, laid-off or otherwise removed from (b) A “permanent employment in connection with workman” is a or as a consequence of that workman who has dispute or whose dismissal, been engaged on discharge, retrenchment, lay- work of permanent off, or removal has led to that nature likely to last dispute [but does not include more than nine any person:- months and has

(a)who is employed satisfactorily mainly in a completed a managerial or probationary period of administrative three months in the capacity, or same or another occupation in the

(b)who, being industrial or employed in a commercial supervisory establishment, and

capacity draws includes a badli who wages exceeding has been employed rupees eight for a continuous hundred per period of three mensem or months or for one performs, either hundred and eighty- because of the three days during any nature of duties period of twelve attached to the consecutive months, office or by reason including breaks due of the powers to sickness, accident, vested in him, leave, lock-out, strike functions mainly of (not being an illegal managerial nature]. 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].

(c)A “probationer” is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months’ service therein. If a permanent employee is employed as a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post.

(d)“Badli” is a workman who is appointed in the post of a permanent workman or probationer, who is temporarily absent.

(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 of exceeding nine months.

[(f) An “apprentice” is a person who is an apprentice within the

meaning of the Apprenticeship Ordinance, 1962 (LVI of 1962).]

[(g) A contract worker means a workman who works on contract basis for a specific period of remuneration to be calculated on piece rate basis.]

9.Similarly under these enactments, remedies have been provided to a Workman in case of any grievance. Under the IRO, by invoking section 25-A of the Act, an employee can approach the Labour Court whereas under the Ordinance, under Standing Order 12 an employee can approach the Labour Court in which, procedure provided under section 25-A of the IRO shall be followed.

10.The distinction drawn between the IRO and the Ordinance qua a Workman to approach the Court is the nature of dispute. A Workman if wish to approach the Labour Court under the IRO, he has to show that an adverse order has been passed against him due to an Industrial Dispute, whereas no rider or embargo like Industrial Dispute has been placed on the rights of the employee to approach the forums available under the Standing Order 12 for the redress of grievance.

11.The aforenoted distinction has been sufficiently discussed and dilated upon by the superior Courts of this Country in judgments reported as Mustehkum Cement Limited through its Managing Director v Abdul Rashid and others

(1998 SCJ 266), Trustees of the Port of Karachi v Muhammad Saleem (1994 SCMR 2213), Syed Matloob Hassan v Brooke Bond Pakistan Limited Lahore (1992 SCMR 227), Fauji Fertilizer Company v Punjab Labour Appellate Tribunal, etc (NLR 2002 Labour 41) and Muncipal Committee, Gojra through its Administration v 1. Mst.

Tasneem Akhtar, 2. Punjab Labour Appellate Tribunal, Lahore,

3.Punjab Labour Court No.4, Faisalabad (NLR 2000 Labour

12.For what has been discussed above, we are of the view that the case of the appellant is not covered by the provisions of IRO and the definition of worker or workman given therein. Appellant was intimated through an order dated 01.07.1998 that his sanctioned period has expired, therefore, his services stand dispensed with. This dispensation of service does not fall within the definition of Industrial Dispute therefore his case squarely falls within the parameters given in Industrial and Commercial Employment (Standing Orders) Ordinance 1968. In order to throw a challenge to his termination or for his regularization, he had a remedy available to him under the law [Standing Order 12(3)], which he failed to avail. We are in agreement with the objection raised by the learned Law Officer that in the wake of the above, writ petition was not maintainable. We are guided by the dictum laid down by the Hon’ble Supreme Court of Pakistan in judgments reported as Dr. Sher Afgan Khan Niazi

v. Ali S. Habib and others [2011 SCMR 1813] and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others [PLD

2010 S.C. 969].

13.Be that as it may, for what has been discussed above, we find that the writ petition filed by the appellant was not maintainable in view of the availability of alternate efficacious remedy therefore the order passed by the learned Single Judge is unexceptionable.

14.As a sequel to the above, this Intra-Court Appeal fails, therefore, the same is dismissed.

(Ayesha A. Malik) (Faisal Zaman Khan) Judge Judge irshad

Approved for reporting