1998 PLP 265 (PLC)

Syed Anwar-ul-Hasan Gilani for Appellant (in Appeal No. MN-517 of 1993). Ch. Shabbir Ahmad for Respondent No. 1 (in Appeal No. MN-516 of 1993). Date of hearing: 13th January, 1997. By the present judgment I shall be disposing of the two appeals captioned above, all questions involved being common.

2. Muhammad Khalil was on 3-7-1982 appointed as Assistant Mechanic and Tariq Ahmad was appointed as Assistant Mechanic in the year 1987. Whereas Muhammad Khalil, as pleaded by him, had got the appointment against a regular post or a permanent vacancy. The appointment of Tariq Ahmad had been made on a work-charged post and for a specific period and the appointment had not even been regularised. No place in the seniority list was assigned for Tariq Ahmad, according to Muhammad Khalil, who asserted that any vacancy occurring at higher level was to be filled in by promotion and not by direct recruitment. Although Muhammad Khalil's name was recommended by the Plant Manager, the 'Authorities' of the Seed Corporation ignored him and promoted Tariq Ahmad instead, as Foreman, on 10-2-1988; and this caused to Muhammad Khalil a positive grouse, being infringement of his service rights.

3. The 'Authorities' maintain that Muhammad Khalil had been appointed as probationer for a period of six months with effect from 1-7-1982 and had never been regularised. On the contrary, Tariq Ahmad was appointed as Mechanical Foreman with effect from 3-9-1983, when Khalil teas not considered fit for promotion, on seniority-cum-fitness basis. Tariq Ahmad had actually been holding the post of Foreman since 1983, although on work-charged basis, according to the Corporation people, who also plead that promotion could not be claimed as a matter of right, and Muhammad Khalil also could not have recourse to a Labour Court by treating him as a workman.

4. I have minutely and cautiously scrutinised the reasoning recorded and the findings given by the learned Labour Court in the impugned decision dated 4-10-1993. I must say that I find it hardly possible to differ with the same. Muhammad Khalil had been in service prior to Tariq Ahmad's induction in service. The standpoint of the 'Authorities' about Tariq's entitlement to the post is wholly inconsistent. One cannot make any head or tail of the assertion whether Tariq Ahmad had been appointed as Assistant Mechanic or as a Foreman. Muhammad Khalil having been appointed on 3-2-1982 and Tariq having been employed on 3-9-1983, the former must be treated, as senior. In January, 1986, Tariq Ahmad, according to R.W. 1 was an Assistant Mechanic, but the testimony is contradicted by the Exh.P-16. A criminal case was registered against Tariq Ahmad for having produced a forged Matriculation Certificate as RW-3 he admits that he is under matric. How could then the deposition of Muhammad Rashid R.W. 1, that Tariq Ahmad was an Intermediate pass, be given any credence. The very conduct of Tariq Ahmad having presented a fictitious or a forged certificate would render his credentials absolutely doubtful. Even Muhammad Khalil, however, had allegedly got the employment on the basis of a forged Matriculation Certificate, but no proof in that regard has been tendered by the establishment. Muhammad Khalil did not appear as his own witness, but, it has rightly been observed by the learned lower Court that, it is a case primarily of record and oral testimony would have led the Court nowhere. It cannot be denied that the post of foreman is higher as compared with that of Assistant Mechanic, and if Tariq Ahmad had been working as Foreman ever-since 1983, there was no point in his appointment as Assistant Mechanic on 1-9-1986. If Tariq Ahmad, as is claimed by him, was a foreman since 1983, his description as Assistant Mechanic in the subsequent list of 1987, Exhs. P-6 and P-9, was not understandable. In Exh. P-3, Tariq Ahmad has been shown as Assistant Mechanic in the year 1986. A criminal case had been lodged against him for having tendered a forged Matriculation Certificate, but the same was not true of Muhammad Khalil, as no proof in writing as regards this fact has been brought on record, although R.W. 2 has orally deposed in that behalf.

5. It has very rightly been observed by the learned lower Court that even if promotion of a subordinate is the discretion of the employer, a Court of law has to see to it, if the discretion has been exercised properly and equitably, and it is not attended by ill-will or mala fides. Muhammad Khalil having his appointment date prior to that of Tariq Ahmad. and there being no difference respecting their educational qualifications and experience, Muhammad Khalil had the prior right to promotion and could not be ignored by the 'Authorities,' in the manner it was done. This should be read with the two documents Exhs. P-16 and 17, P-16 being subsequent to P-17. It had been requested by Tariq Ahmad, vide Exh. P-16, that he had been working as Assistant Mechanic and the period of posting having expired, the same be extended with effect from 1-9-1986. This runs counter to the claim, made vide. Exh. P-17, whereby it was stated by Tariq Ahmad that he had been working as Foreman, although period of his posting in that capacity had expired on 28-2-1986. There is a clear contradiction between the two claims and the learned Labour Court has correctly deduced conclusions from these documents, as also assertions of Tariq Ahmad as against Muhammad Khalil; and this Tribunal would find it difficult to make any departure and to interpret the documents available on record differently. The order dated 10-2-1988, making appointment of Tariq Ahmad as Foreman, was rightly struck down by the Court below. The decision dated 4-10-1993 is endorsed; and both the appeals, one preferred by the 'Authorities' of the Punjab Seed Corporation, and the other by Tariq Ahmad, being devoid of merit, are hereby dismissed, with of course no order as to costs. H.B.T./874/Lb.P Appeals dismissed.