RIGHT TO HOLD PERMANENT EMPLOYMENT IN PAKISTAN RAILWAYS

By:
ZOHAIB IMRAN SHEIKH
Advocate

According to well known jurist Salmond right has been defined as “a right is an interest recognized and protection by a rule of right. It is any interest, respect for which is a duty and the disregard of which is a wrong” .This definition of right implies correlative duties, i.e where there is a right, there is duty. The traditional relationship between employee and employer does trace its history from the principle of master and servant still prevalent today in our developing country. What should be terms and conditions of employment still remain uncertain as most of the labour class is illiterate, does not have the knowledge about their own rights and corresponding duties, perhaps working and running on the mere desires and arbitrary orders of employers despite the fact that the constitution guarantees to hold employment as such. Employers whether private or government have always been in dominating position to coerce employees and to bargain on whatever terms and conditions employers forced to incorporate and desired the employee to sign it without even asking for employees’ free consent. The very first legislation was done to counter hardships faced by the labour class in this regard was the Industrial Dispute Act 1947, wherein apart from what the employees/workers used to agree in their contract of employment, certain other rights had been extended towards employees. Recent legislation in the labour field is Industrial Relations Act 2008, has its own pros and cons, not debatable here as the topic is confined to the concept of permanent employment with special reference to Pakistan Railways.

Pakistan Railways is a creation of statute commonly known as Railways Act 1890, which provides for the general establishment of Pakistan Railways apart from provisions contained in the Pakistan Railways Establishment Code which consists of two volumes necessary for the internal regulations of Pakistan Railways. Being federally controlled, railways have been of vital importance as it leads towards the development of this nation, providing for employment to vast number of employees of this country in very certain manner. But unfortunately, past trends are vanishing rapidly, as the administration changes, modes of employment changes, terms and conditions of employees change without even notice to the employee concerned.

Relevant would be to quote some articles of the constitution of Islamic republic of Pakistan 1973, which reads as follows;

Article 11 of the Constitution prohibits all forms of slavery, forced labour and child labour; • Article 17 provides for a fundamental right to exercise the freedom of association and the right to form unions;

• Article 18 proscribes the right of its citizens to enter upon any lawful profession or occupation and to conduct any lawful trade or business;

• Article 25 lays down the right to equality before the law and prohibition of discrimination on the grounds of sex alone;

• Article 37(e) makes provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.

The preamble of the constitution of Pakistan 1973 reads as follows:-

“………. Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of through, expression, belief,faith,worship and association, subject to law and public morality;……….”

The preamble if read in its true perspective, it has been made duty of the state to provide for adequate facilities qua employment and reasonable sources to enable the people of Pakistan to earn their livelihood to avoid exploitation and stand by with the world in equality and with respect also.

Employment whatever form it may take either permanent or temporary, object behind such issue is provide adequate source of livelihood, duty of which is on the shoulders of the Pakistani state irrespective of any differences in this regard. Situation, has now taken a complete “U” turn, when the railways being federally controlled organization has fallen into practice of employing people on temporary basis even against very permanent posts. This practice continues, until courts interfere on one pretext or the other. Mostly, employees in the railways department, who are employed on the father-to-son policy duly enforced and recognized by the Pakistan railways, are still working on temporary basis even on permanent posts. Bare reading of previously issued notifications which govern the employment of those, whose father died in service, provide for permanent employment without any discrimination. This action is contamacious as the railways administration being in dominating position coerce, supersede the will of employees working therein.

Similarly issues have arisen, wherein certain disputes rose up amongst the staff working in the Pakistan railways as they wanted to enforce their right of permanent employment by filing notices, appeals within the department, when to their own disadvantage suddenly railways department took astonishing turns. On one occasion railways department disowned its own workman and on other labeled the permanent employee as temporary one because usually employees in the railways department have no access to their own appointment letters. This situation is alarming and leading towards anarchy within the department. Employees are completely rendered helpless in this regard as they have no option except to succumb before the illegal desires of the employer. On the other hand it is also well settled that the employee is not bound to follow the illegal orders of the superiors in whatever it may take.

Coming towards the main issue/topic under discussion, whether a railway employee who is appointed under the label of TLA (temporary labour) can claim regularization /confirmation of his services as per right, or he is just governed by terms and conditions of contract governing his employment. While examining the appointment letters issued to various TLA employees, the following essential features are noted in the appointment letters;

1) The Pakistan railways has tried to bring the temporary employees within the ambit of provisions of West Pakistan (industrial commercial) employment standing order 1968, as all the appointment letters contain appointment period for 89 days. Analogy is drawn from the provisions of referred to ordinance where only the employee appointed for 89 days could be termed as temporary one. On the other hand it is clear by the courts that the provisions of the referred to ordinance is not applicable on the Pakistan railways.

2) In most of the cases employees who used to work for many years are termed as temporary one without assigning any just cause,

3) The Pakistan railways often misconstrues the difference between temporary employment, break in service and termination of service,

4) It is also unclear from the practice of Pakistan railways that whether, the employee getting the pay for the whole month, including the day when the railways allegedly breaks his services, could be termed as temporary one,

5) The competent authority who is bound to follow the dictums of the superior courts, often waits for the directions from the high ups for regularization/confirmation of temporary employees,

6) Usually temporary employees, who are confirmed/regularized by notification by the ministry of railways, get their right when the notification was issued. Whereas it should be from the date when the respective grievance arises.

7) Instances have come to the personal knowledge of the writer, that even in the federally controlled railways; many temporary workers are not even having their own appointment letters for the reasons best known to the administration.

8) The workman who are labeled as temporary are ordered to remain posted on permanent posts for considerable long period without getting them regularized

Pakistan railways also extends discriminatory treatment to its temporary employees in relation to regular employees in as much as the temporary employees perform equally and in the same capacity with the regular employees but there is considerable difference in pay and other benefits between the two. This act of Pakistan railways is in direct conflict with the Article 25 of the constitution of Pakistan, whereby equal protection is guaranteed. Hence the railways violate the very fundamental right of its own employees.

There is another aspect of the matter that usually denies the genuineness of employment, not withstanding the fact that the workers are duly appointed under the orders of competent authority. But the railways as their intention has been observed by the superior courts, made every possible effort to deny to the employees their genuine and fundamental right of employment.

Instances have also come in the knowledge of writer that where by workman is fit, qualified and eligible to appointed on permanent post. Posts are vacant, but the railways employ them on temporary capacity, meaning thereby railways intentionally put itself at fault by not employing the workers on permanent footing. It is also settled that the public functionary cannot take benefit of their own lapses.

ACT OF CREATING ARTIFICIAL BREAKS IN THE EMPLOYMENT OF WORKERS.

It has also been observed that the railway administration just to circumvent the provisions of labor laws and to refuse their benefits to be extended to their employees create artificial breaks in the services of their own employees. This act is also ridiculous and illegal as such. Railway offends the intention and spirit of law by keeping an employee on road just for 89 days and then to create break. It is mala fide and illegal device introduced to just deny the employees their lawful right of regularization and confirmation

There are various judgments of superior courts wherein the railway employees are held entitled for confirmation on having served in a particular capacity even for one year, but the court imposed three years service, normally found to be sufficient and reasonable.

CONFUSION AS TO THE INTERPRETATION OF DEFINITION OF WORKMAN

The very recently enforced labour legislation in the form of Industrial Relations Act 2008 has altered the definition of workman employed in the railways establishment. It generally includes all the employees who are in, literal context, employed as workman by the railways in Pakistan, irrespective of the fact and the interpretation of statutory rules. This definition definitely requires scrutiny through evidential stages and interpretation by superior courts of this country so as to settle as to what employees working in the Pakistan railways could invoke the jurisdiction under the Industrial Relations Act 2008 being workman employed therein. Workmen in the Pakistan railways prior to the enforcement of Industrial Relations Ordinance 2002 were governed by the provisions of Industrial Relations Ordinance 1969. The Ordinance of 1969 being Pari Materia with that of newly enforced Industrial Relations Act 2008, definition and interpretation of “workman” as contained in the Ordinance of 1969 could be applied to the intent of Industrial Relations Act 2008. And finally the railways employees, workmen were very much governed previously by the Industrial Relations Ordinance 1969.

CONCLUSION

Many suggestions could have put forwarded, had the legislature been in controlling and enforcing position. I believe being student of law, redundancy cannot be attributed the law, also there is no concept of law being obsolete. But the governmental action in not countering the problems faced by the workman definitely would result in destructive economy as the labour class still faces uncertain employment conditions especially in Pakistan Railways. Government is perhaps helpless or intentionally flouts the mandatory provisions of law even in the government controlled institutions and organizations. The uncertain employment conditions, unfair labour practices, non-obeying of dictums of courts, dragging poor labour class into lengthy litigation process etc are leading towards anarchy situation in this country which can only be countered when the employees are given their due right, beneficial and proper legislation done, policies favorable to the workman introduced and enforced, else the destruction would be the future of labour class of this country, which would definitely produce hazardous effects as such.