Asim Nisar Vs Ministry of Energy

JUDGMENT SHEET

LABOUR APPELLATE TRIBUNAL

KHYBER PAKHTUNKHWA AT PESHAWAR

(Peshawar High Court, Peshawar)

JUDICIAL DEPARTMENT

Labour Appeal No.28-P/2024 Asim Nisar and others Vs.

The Ministry of Energy (Power Division) through its Secretary, Islamabad and others

Date of Hearing 11.05.2026 For Appellant(s): Mr. Noor Muhammad Khattak, Advocate.

For Respondent(s): M/s. Fasih Ullah, Assistant Attorney General and Barrister Asad-ul-Mulk alongwith Mr. Amir Nawaz, Focal Person, Ministry of Energy (Power Division), Islamabad.

JUDGMENT

IJAZ ANWAR, J. This Labour Appeal is filed against the judgment dated 14.11.2024 passed by the learned Presiding Officer, Labour Court, Peshawar, whereby, the Grievance Petition filed by the appellants was dismissed.

2.Facts leading to the institution of this appeal are that the appellants, having the prescribed qualifications, applied for the posts of Line Superintendent-II, pursuant to an advertisement issued by the respondents. They appeared in the written test and qualified the same and accordingly, were appointed vide order dated 21.08.2020. It is pertinent to mention here that they accepted the offers of

appointment and also submitted their arrival reports, albeit, throughout they were never released their salaries. They filed Grievance Petition before the Labour Court, Peshawar, however, it was dismissed vide judgment dated 09.02.2022. Being aggrieved, they filed Labour Appeal before this Tribunal and this Tribunal vide judgment dated 04.07.2022 allowed the same and remanded the matter back to the Labour Court for its decision afresh with certain observations. After remand, the learned Labour Court vide the impugned judgment dated 14.11.2024 again dismissed the Grievance Petition of the appellants. Hence, this Labour Appeal.

3.Arguments heard and record perused.

4.Earlier, the Grievance Petition of the appellants was summarily dismissed by the learned Labour Court vide judgment dated 09.02.2022, however, this Tribunal, keeping in view the factual aspect of the case, remanded the matter to the Labour Court for its decision afresh by formulating the following issues.

(i)“Whether, when once the appellants were issued the offer of appointments and which were duly accepted, can such acceptance give appellants the status of employees/workmen in the respondent company.

(ii)The objection pertaining to the employment process initiated at

the ministry level/PEPCO can be sustained, when the appointment authorities/Board of Directors of the PESCO has never objected to the appointments at the relevant time.

(iii)Whether the inquiry so conducted through outsiders/ not the officers of the PESCO can have any bearing on the appointments of the appellants.

(iv)Whether the nature of job performed by Line Superintendent-II in the respondent company can be considered for determining the status of appellants as workmen”.

5.After remand, the learned Labour Court, while dealing with these issues, held the appellants as non- workmen allegedly on the grounds that they were designated as Line Superintendent-II; secondly, since they have submitted their arrival reports but they cannot be termed as workmen, because, they have not performed any duties and thirdly that the whole process of appointment having been declared illegal by the Senate Standing Committee and as such, they have got no right whatsoever to be reinstated in service.

6.The representative of the respondents, present in Court, when asked about the status of Line Superintendent-II, has frankly stated that the corresponding scale of Line Superintendent-II is BPS-14. It appears that

the post of Line Superintendent is neither managerial nor in any manner a supervisory post. Learned counsel, representing the respondents, has produced the job description of Line Superintendent-II, according to which, the Line Superintendent has three main responsibilities i.e.

i)as Maintenance Superintendent under the supervision of Line Superintendent Grade-I, 2) as Incharge of D&R Section and 3) as Incharge of Detection Incharge.

7.The appointment letters, placed on file, nowhere suggest that the appellants have any powers of hire and fire and admittedly, Line Superintendent-II is a low paid employee and such post is either to be filled in directly or through promotion from Line Man-I. Now it is to be seen as to whether after appointment of an employee, it is necessary that he should have performed the duties and thereafter, his status can be considered as that of a workman. Section 2(xxxiii) of the Khyber Pakhtunkhwa Industrial Relations Act, 2010 (hereinafter to be referred as “the Act, 2010”) defines the “worker” and “workman” as follows:-

“worker” and “workman” mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for

hire or reward either directly or through a contractor whether the terms of employment be express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay- off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity”.

While Section 2(n) of the Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Act, 2013 (hereinafter to be referred as “the Act, 2013”) defines the “worker” as “worker means any person employed in any industrial establishment or commercial establishment or a mine to do any skilled or unskilled, manual or clerical work for hire or reward and includes permanent, probationer, badlis, temporary, apprentices and contract workers”.

8.The definition of “workman” given in “the Act, 2010” merely provides such workman to be employed in any such establishment. It is pertinent to mention here that even the advertisement issued by the respondents into

the case of the appellants shows two categories i.e. 1) Officers of BPS-17 and above and 2) BPS-01 to BPS-16, which includes the post of Line Superintendent-II and carries BPS-14.

9.Now it is to be seen whether the appellants have assumed the status of workmen after being employed in the respondent-establishment. The record reveals that pursuant to an advertisement, inviting applications from eligible candidates for different posts including the post of Line Superintendent-II (BPS-14) published on 30.11.2018, appellants have duly applied for the posts in question and were called for written test and qualified the same. The result of the qualified candidates has been placed on file which is available from Pages 110 to 166 of the Paper Book; similarly, these candidates were also issued call letters for interview available from Pages 167 to 265 of the Paper Book and having qualified the selection process, they were duly recommended and were issued offers of appointment on 21.08.2020. The appointment letters issued to the appellants are available from Pages 266 to 458 of the Paper Book. It is pertinent to mention here that in terms of the appointment letters, it has specifically mentioned that “if the above terms and conditions of appointment are acceptable to you, please send your written acceptance in

person to Director General (HR) PESCO, Wapda House, Shami Road, Peshawar on 4th September, 2020”. Thus, apparently, it was the offers of appointment and the acceptance is only on the part of the appellants. It further merits to mention here that the appellants have duly accepted the offers of appointment and submitted their arrival reports on the date given in the appointment letters and thus, when once they have accepted the offers of appointment and submitted their joining reports, they became employed persons within the meaning of Section 2(n) of “the Act, 2013”.

10.Now the second question that requires determination is the objection of the respondents on the appointment process. Learned counsel, representing the respondents, has referred to the documents, placed on file, wherein, the issue was firstly taken up in the Senate Secretariat and it was on the decision of the Senate Standing Committee that the Board of Directors of the respondent-Company in its meeting held on 16th and 17th March, 2021 in 154th PESCO Board Decisions, resolved to scrap the recruitment process for the posts of LS-II, Meter Readers, Bill Distributors and ALMs. The date of appointment of the appellants is 21.08.2020 while the Board’s decision is that of 16th & 17th March, 2021,

however, no separate termination orders have been issued to the appellants nor they were provided any right of hearing nor proceedings were conducted under the provisions of “the Act, 2013”.

11.The Labour Appellate Tribunal, while

hearing an appeal under Section 51 of “the Act, 2010” has the same powers as are enjoyed by the Labour Court and the Labour Appellate Tribunal under sub-section (4) of Section 51 of “the Act, 2010” can pass any order for the purpose of satisfying itself as to the correctness, legality or propriety of the order impugned before it. Similarly, under sub-section (3) of Section 51 of “the Act, 2010”, it has the powers, on appeal, to confirm, set-aside, vary or modify the award or decision or order of the Labour Court. The Labour Court under Section 37(5) of “the Act, 2010” has the jurisdiction and powers to go into the facts of the case and pass such orders as may be just and proper in the circumstances of the case. The powers of the Labour Court/Labour Appellate Tribunal to pass any order that may be just and proper in the facts and circumstances of the case have been elaborated by the superior Courts of this country in the cases titled “Allied Bank Limited through attorney and others Vs. Syed Nasir Abbas Naqvi and others (2007 SCMR 1143), Nazir Ahmad Pathan and

another Vs. Muslim Commercial Bank Ltd. and others (2008 SCMR 899), Habib Bank Limited Vs. Mussadiq Hussain and 02 others (1992 PLC 1109), National Bank of Pakistan and another Vs. Muhammad Riaz and another (1991 SCMR 1572), Philips Electrical Industries of Pakistan Ltd. Vs. The 2nd Sindh Labour Court, Karachi through Presiding Officer and 53 others (2000 PLC 14), Ghulam Muhammad Vs. Government of the Punjab through Secretary, Industries, Lahore and others (2000 PLC 235), Allied Bank of Pakistan Limited through General Manager and 2 others Vs.

Qazi Tariq Javed and 2 others (2000 PLC 241), Ghulam Muhammad Vs. Government of the Punjab through Secretary, Industries, Lahore and others (2000 SCMR 30), Messrs IFFCO PAKISTAN (Pvt.) Ltd. Vs. Sindh Labour Appellate Tribunal and others (2017 PLC 143), Messrs Poineer Cables Limited through General Manager Vs. Chairman Labour Appellate Tribunal Balochistan, Quetta and 2 others (2002 PLC 82), Messrs National Fibres Ltd. through Manager Vs. Muhammad Akram (2000 PLC 124), Muslim Commercial Bank Ltd.

through General Attorney and another Vs. Amir Hussain and another (1996 SCMR 646) and Managing Director, Shaw Bottlers (Pvt.) Limited Vs. The Punjab

Labour Appellate Tribunal, Lahore and 2 others (1993

SCMR 488)”.

12.In the instant case, however, while going through the offer of appointment letters, I find that it was one-year contract started from the date of arrival and to conclude on 11/2021. Thus, in such circumstances, instead of allowing reinstatement in service, grant of compensation for one year of service to the appellants would be infact just and proper. The Hon’ble Sindh Labour Appellate Tribunal in the cases titled “Arshad Ali Khan Vs. Messrs Dalda Foods (Pvt.) Ltd. and another (2016 PLC 300) and Ahmed Hussain and another Vs. Messrs Meqsood Textile through notified Manager (2018 PLC 245)” granted compensation instead of reinstatement. Similarly, the Hon’ble Supreme Court of India in somewhat identical case titled “Sh. T.P. Srivastava Vs. Messrs National Tobacco Co. of India Ltd (1992 PLC 564)” observed that “in cases where reinstatement of a workman is not possible, compensation may be awarded in lieu thereof”.

13.For the reasons recorded hereinabvoe, this Labour Appeal is partially allowed. The impugned judgment of the learned Presiding Officer, Labour Court, Peshawar is set-aside and the appellants are held entitled to compensation of one-year salary in terms of their contract

appointments which is to be calculated on the basis of gross salaries admissible to such employees at the time of their appointment.

Announced Dt:11.05.2026 Senior Puisne Judge

(SB)Hon’ble Mr. Justice Ijaz Anwar

*Muhammadullah*