Labour Law Cases - Review of Recent Courts' Judgments

 
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1. Employer and employee --'Contract employee'--Regularization in service as 'permanent employees'

Workers having direct contract with employer, working on work of permanent nature for years had earned entitlement for regularization of their services.

Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contracts executed directly between them and the bank for different spans of 11 months, from time to time. Services rendered and work performed by the petitioners was of a permanent nature. Like any other employee or worker, the petitioners were rendering manual services for the Bank. Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors". Bank could not be allowed to exploit its workers and defeat the spirit and purpose of law by calling such workers as "contractors" instead of "contract employees" and "contract employment".

Since the petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank. Supreme Court directed the bank to regularize the services of the petitioners as permanent employees. Appeal was allowed accordingly. [SC(Pak): Abdul Ghafoor and others vs. President, National Bank of Pakistan and others; 2018 PLC (C.S.) 383].

2(b) Civil Service--- Distinction between "Promotion" and "move-over"

Move-over is simply an extension in an employee's pay scale. Move-over from one scale to another did not amount to promotion but it was awarded to an incumbent after reaching the maximum of his substantive scale; it could not be equated with promotion; move-over was a financial aid to an employee who otherwise fulfilled the qualification for a higher grade but could not be promoted for want of a vacancy or a post. [HC(Isl): Mohammad Nawaz and another vs. Federal Government Employees Housing Foundation and others; 2018 PLC (C.S.) 325].

2(c) Maxim---

--"Audi alteram partem"--Maxim originates from Islamic Principles of Justice; its violation vitiates even the most solemn proceedings. [HC(Isl): Mohammad Nawaz and another vs. The Federal Government Employees Housing Foundation and others; 2018 PLC (C.S.) 325].

Dismissal from service for refusal to accept promotion?

3(a) Sindh Industrial Relations Act (XXIX of 2013)---

Ss. 3, 34 and 48 -- Dismissal for refusal to accept promotion

S.2(i), S.Os.12(3) and 15(3)--Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)

Refusal to accept promotion to management cadre is not a misconduct as it is a reward not a liability or punishment, which could be enforced or suffered.

Worker, who was working as Senior Mechanical Technician since 1997 and was office bearer of C.B.A. Union in the establishment, was dismissed from service after inquiry in 2010 on the charge of "not accepting promotion to Management Cadre as Sub-Engineer (Planning)" and treating it as an act subversive of discipline. Employer appealed against Labour Court judgment that it was not justified in giving direction for holding fresh inquiry and refusal to accept promotion was not misconduct is not correct. Contention of the employer was that refusal to accept promotion was gross misconduct on the part of worker--Validity. Promotion was a reward, and not a liability or punishment, which could be enforced or suffered. In absence of any Service Rules or terms and conditions of service contract to the contrary, an employee could not be forced to accept promotion. Promotion would bring change in job description.

Contention of the employer that the worker being interested more in trade union activities than his work, and he was not a good worker fit to be retained in service was self-destructive and lent support to the contention of the worker that he was being promoted, only to keep him away from trade union activities. Right to form Union, had been recognized as a fundamental right under Art.17 of the Constitution. Refusing to reinstate the worker, who was trade union activist, would have the retrogressive effect of discouraging trade union activities, and encouraging employer to get rid of trade union activists by foul means. Worker, was not entitled to back benefits, as he had failed to show that he had made any effort to engage himself in any gainful pursuit.

Impugned judgment to the extent of reinstatement of the worker, was upheld; while it was set aside to the extent of giving direction for holding fresh/further inquiry. Back benefits, were not awarded to the worker. [LAT(Sindh): Tariq Nazir and others vs. Presiding Officer 4th Sindh Labour Court and others; 2018 PLC 66].

3(b) Industrial dispute -- Back benefits--Scope

The purpose of back benefits is to compensate worker for the loss suffered as he was unable to find a job despite his best effort and...

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