2013 P L C (C.S.) 377

 

[Supreme Court of Pakistan]

 

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sarmad Jalal Osmany, JJ

 

TEHSIL MUNICIPAL OFFICER, TMA KAHUTA and another

 

Versus

 

GUL FRAZ KHAN

 

Civil Petition No.1041 of 2011, decided on 21st June, 2012.

 

(On appeal from the order of the Lahore High Court, Rawalpindi Bench dated 16-5-2011 passed in I.C.A. No.123 of 2010).

 

Constitution of Pakistan—

 

—-Art. 185(3)—Work charge (contractual) employment—Employee working on work charge basis claiming to be a regular employee—Employment on work charge (contractual) basis, irrespective of its period of length, not to accord employee status of regular employee—Respondent was initially employed by Health Department as chowkidar (watchman) on a work charge basis but after devolution of said Department all its assets, liabilities and offices were succeeded to the Municipal Administration (petitioner)—Services of respondent were transferred to the Municipal Administration, which paid him regular salary—High Court declared respondent to be a regular employee of the Municipal Administration (petitioner) on grounds of his continuous service for 13 years, since the Municipal Administration failed to show that his employment was contractual—Validity—Record showed that respondent was employed by the Health Department on a work charge basis initially for three months and his employment was extended at regular intervals for three months at a time—Documents placed on record by respondent clearly indicated that his employment with Municipal Administration was also on work charge basis and he was paid for the work he performed—Respondent’s employment whether with the Health Department or with the Municipal Administration remained on work charge basis and he was never appointed as a regular employee and his employment on work charge basis, whatever its period of length, would not accord him status of regular employee—High Court had erred in holding the respondent a regular employee simply on account of  failure of Municipal Administration to show that his appointment was on a work charge or contractual basis—Respondent had to substantiate his claim for regular appointment and same could not be deemed to have been established on failure of the Municipal Administration to prove the contrary—Petition for leave to appeal was converted into appeal and allowed, impugned judgments were set aside and respondent was held not to be a regular employee of the Municipal Administration.

 

Sardar Tariq Anees, Advocate Supreme Court for Petitioners.

 

Sh. M. Suleman, Advocate Supreme Court for Respondent No.1.

 

Mudassar Khalid Abbasi, Additional A.-G., Punjab, Shahzad Asghar, XEN and Hamid Khan Niazi, SDO, Official Respondents.

 

Date of hearing: 21st June, 2012.

 

JUDGMENT

 

            NASIR-UL-MULK, J.—Tehsil Municipal Officer, Tehsil Municipal Administration, Kahuta (hereafter referred as to the TMA, Kahuta) and another has filed this petition for leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench in Intra Court Appeal  dated  16-5-2011,  dismissing  the  petitioners’  appeal  and upholding the judgment of the learned Single Judge in Chambers, whereby the Constitutional Petition of the respondent, Gul Fraz Khan, was allowed; he was declared to be a regular employee of the TMA Kahuta, which was also directed to pay to the respondent salary w.e.f. January, 2004.

 

  1. The respondent had claimed that he was employed as Chowkidar in the office of the Executive Engineer, Public Health Engineering Department (PHED), since the year 1996 in Jewara Water Supply Scheme and that after devolution when the PHED had ceased to exist his services were transferred to the TMA Kahuta, which had been paying salary regularly until 2004. He further alleged that though he was still performing his functions as Chowkidar, he has not been paid salary. The learned Single Judge in Chambers as well as the Division Bench in Intra Court Appeal held the respondent to be a regular employee on the ground of continuous service of the respondent for 13 years, when the present petitioners had failed to produce any document to show that the respondent’s employment was contractual.

 

  1. During the course of proceedings, the learned counsel appearing for the petitioners had stated that the respondent never remained their employee and that he had initially been appointed in the PHED, which would be in possession of his service record. Since the PHED was not impleaded by the respondent before the High Court, we allowed the petitioners to implead the said Department as respondent. We directed the  PHED  to  produce  the  service  record  of  the  respondent  and  had  gone  through  the  same  with  the  assistance  of  the  learned counsel for the parties.

 

  1. The record shows that the respondent was employed by the PHED on work charge basis on 1-7-2001 initially for a period of three months and his employment was extended at regular intervals for three months at a time until 31-3-2002. By Notification dated 22-5-2002 the Government of Punjab declared that the Executive Engineer (PHED) at District level shall cease to function by 30-6-2002 and that the TMA Kahuta shall succeed to their assets, liabilities and offices. The respondent had placed on record the documents and receipts in order to show that he remained as Chowkidar in employment of the TMA Kahuta after devolution till the year 2004. These documents, however, clearly indicate that his employment with the TMA Kahuta was also on work charge basis and was paid for the work he performed. The respondent’s employment whether with the PHED or with the petitioners remained on work charge basis. He was never appointed as regular employee and his employment as work charge, whatever its length of period, would not accord him the status of regular employee. We also noted that his very Constitutional Petition suffered from laches, filed in the year 2006 when upon his own showing he was not paid salary since the year 2004.

 

  1. The Single Judge in Chambers as well as the Division Bench of the High Court had erred in holding the respondent as regular employee simply on account of failure of the petitioners to show that he was appointed on work charge or contractual basis. It was for the respondent to substantiate his claim of regular employment and the same cannot be deemed to have been established on failure of the petitioners to prove to the contrary. The respondent was initially appointed in the PHED which was in possession of the service record of the respondent. The PHED was not made a party by the respondent in the petition before the High Court. Had the High Court summoned the service record of the respondent from the office of the said Department they would have discovered that the respondent never remained regular employee of other either of the two Departments in question.

 

  1. For the above reasons we hold that the respondent was regular employee of neither the PHED nor the TMA, Kahuta. Resultantly, the petition is converted into appeal and allowed. The impugned judgments are set aside and the Constitutional Petition by the respondent before the High Court stands dismissed.

 

MWA/T-5/SC                                                                                     Petition allowed.