1985 PLP 1931 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 2‑5‑1981 of the Lahore High Court; whereby two Constitutional Writ Petitions filed by the Utility Stores Corporation (petitioner) against orders of a Labour Tribunal and affirmation thereof by an appellate Tribunal, were dismissed.

2. The brief facts relevant for the present stage noted in the impugned judgment are that the contesting respondents in these two petitions namely, Ghulam Dastgir, Abdul Sattar and Tasneem Ahmad entered in the employment of the petitioner Corporation as Assistant Salesmen. After some time they were promoted as Salesmen. Later they were also promoted as supervisors and were confirmed in that post. In the beginning of 1980 the petitioner re‑organized its administrative set up and reduced the number of posts of Supervisors from 98 to

24. The senior most supervisors were retained. The services of the remaining supervisors were terminated. The said three respondents (amongst those were who retrenched) approached the Labour Court under section 25‑A of the Industrial Relations Ordinance No. XXIII of 1969 with the main contention that if on account of re‑organization the posts held by them had become surplus they should have been offered the next junior posts of Salesman which they had held before their promotion as supervisors. The Labour Court upheld this contention and directed the petitioner to offer the post of Salesman to the said respondents. The petitioner challenged the decision of the Labour Court before the Labour Appellate Tribunal and then in writ jurisdiction before the High Court but without any success. Therefore, leave to appeal has now been sought through these petitions in this Court.

3. The learned counsel for the petitioner has contended that the reliance in the impugned judgment as also by the Labour Tribunals on subsection (5) of section 25‑A without reading therewith subsection (1) of section 25‑A as the controlling provision, has resulted in miscarriage of justice; that the provision contained in Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to the effect that: where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category, has not been given due importance: that the provision contained in subsection (5) to the effect that the Labour Court shall go into "all the facts of the case and pass such orders as may be just and proper in the circumstances of the case" even though authorising a subjective decision on controversial questions of facts, does not permit the Labour Court to exceed its own jurisdiction or to pass an order which is contrary to law. Some of the observations made in Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub and others P L D 1978 S C 207, laying emphasis on the legal aspect have been relied upon: that the principle in all cases of retrenchment namely, last come first go in the same category of retrenched posts has not been adhered to; that the order passed by the Labour Court would create serious complications in its implementation for example, new posts of Salesmen would have to be created or some Salesmen would be removed, for absorbing the contesting respondents as Salesman, which would mean imposing a major administrative change on the employer and further it will amount to depriving innocent Salesmen of their right to continue in service without any fault, moreso when they were not impleaded as parties in the proceedings before the Labour Court: and lastly that the question whether the respondents would fall within the definition of "workman" also required examination by the High Court but the points raised were not duly considered on the assumption that they were not raised before the Labour Court and the appellate forum regarding which learned counsel further, explained, in the circumstances of the case, firstly the points were so obvious that Labour Court was bound under Law to examine the same before assuming jurisdiction and secondly in any case they being of fundamental jurisdictional importance could be raised in the higher forum. Learned counsel at the end also pointed out that there is conflict of opinion in the Labour Appellate Tribunals on questions raised in these matters‑‑he cited the contrary view taken in Utility Stores Corporation Ltd. v. Mahboob Darul Amin, Appeals Nos. 311 to 319 of 1981, decided on 27‑9‑1981.

4. Learned counsel for caveators respondents in reply reiterated the points noted in the High Court judgment.

5. After hearing both the learned counsel we consider it a fit case for examination of the questions noted above and others raised in these petitions as they indeed are of general importance and have also led to conflicting judgments in so far as the Labour Appellate Tribunals are concerned. Order accordingly.

6. Interim order passed on 18‑5‑1984 suspending the operation of the impugned judgments and orders, shall remain in operation during the pendency of the appeals; which shall be made ready on the present record with permission to the parties to file additional documents which would be necessary for the hearing of the appeals. M.I. Leave granted.