1982 PLP 354 (PLC)

ALI HUSSAIN QAZILBASH, J.‑Through this constitutional petition, Mohammad Naeem has challenged the order of the Labour Court D. I. Khan dated 2nd April, 1978 whereby the application of Mohammad Israr under section 25‑A of the Industrial Relations Ordinance, 1969 was accept ed and that of the order of the learned Chairman, Labour Appellate Tribunal, N.‑W. F. P., Peshawar dated 24th March, 1979 who dismissed the appeal of the petitioner for his appointment on permanent basis as Upper Division Clerk as ordered by the Project Manager, Bannu Sugar Mills, Serai Naurang, District Bannu (respondent No. 4).

2. Relevant facts material to this petition are that Mohammad Israr (respondent No. 4) was appointed as a Lower Division Clerk on seasonal basis in the Cane section of Bannu Sugar Mills on 13th November, 1965, he being a matriculate. He was promoted as Upper Division Clerk in the same department on 24th January, 1972, w. e. f. 1st January, 1972 and on 23rd November, 1972, was transferred to the Account Section on seasonal basis at his own request. As against him, Mohammad Naeem petitioner being F. A. was directly appointed as Upper Division Clerk on seasonal basis in the sale section of the said Mills on 3rd January, 1970. On the abolition of the sale section on 18th December,1972, he was transferred to the Account Section. On the appointment of Mohammad Naeem as Upper Division Clerk against a vacant post in the Account Section on permanent basis w. e. f. 20th August, 1975 by respondent No. 3, Mohammad Israr challenged the said appointment before the Labour Court D. I. Khan through a petition under section 25‑A of the Industrial Relations Ordi nance, 1969. Before the Labour Court, Mohammad Israr succeeded in getting the order of Mohammad Naeem dated 20th August, 1975, cancel led. Feeling aggrieved of the order of the Labour Court dated 2nd April, 1978. Muhammad Naeem petitioner went up in appeal before the learned Chairman, Labour Appellate Tribunal, Peshawar but failed to secure a favourable decision; hence the present petition.

3. We have heard the learned counsel for the parties in detail and found that the Labour Court as well as the Chairman, Labour Appellate Tribunal have misdirected themselves in interpreting Article 4 of the Settlement arrived at between the Management and the Collective Bargain ing Agent of 21st March, 1975 which lays down :‑ "In case of transfer from one department or section to any depart ment or section in the factory the seniority for the purpose of confirmation and promotion will be considered from the first date of appointment and confirmation." The dates of initial appointment and transfer from one Section to another are not disputed. The petitioner is a direct recruit in a higher scale (U.D.C.) and was appointed as such on 7th January, 1970 on sea sonal basis in the sale section whereas respondent No. 4 was appointed as Lower Division Clerk in 1956 on seasonal basis in the Cane Section. He was promoted as Upper Division Clerk in the same section from 1st January, 1972 I.e. about two years after the appointment of the petitioner as Upper Division Clerk. Respondent No. 4 was transferred to the Account Section at his own request on 27th November, 1971 whereas the petitioner was transferred to the Account Section on 18th December, 1972 when the sale section was abolished. While interpreting the phrase "from the first date of appointment and confirmation" given at the end of the above Article, the Labour Court while accepting the petition of respondent No. 4, took into con sideration the length of service put in by respondent No. 4 coupled with) his joining the Account Section twenty days prior to the petitioner but has completely ignored very important fact that phrase "first date of appointment and confirmation" is relatable to the grades of the incum bents. Admittedly the petitioner is a direct recruit in a higher grad a (U.D.C.) and was appointed as such on 7th January, 1970 whereas res pondent No. 4 though joined the service in 1965 but was appointed in a lower grade (L D.C.), therefore, the length of service notwithstanding, respondent No, 4, could not compete with the petitioner in respect or permanent appointment as Upper Division Clerk and cannot claim seniority over the petitioner. Had he (respondent No. 4) been promoted to a higher grade a day prior to 7th January, 1970 (the date on which the petitioner was appointed as UDC then in that case alone respondent No. 4 would have the right to claim permanent appointment qua the petitioner. This being not the position, both the Courts have erred in law in holding respondent No. 4 senior to the petitioner and eligible for confirmation: The findings of the Labour Court that since respondent No. 4 had joined on transfer as Upper Division Clerk in the Account Section prior to the petitioner, therefore, he is entitled to be made permanent is fallacious inasmuch as in the first instance joining another section on transfer can by no stretch of imagination be taken the first date of appointment and secondly if a person in a higher grade joins another section on transfer even on a later date as in this case, he carries with him all his rights and privileges. Therefore seniority of the incumbents, under no circumstances, can be determined on the basis of the dates of their joining on transfer from another section.

4. At the fag‑end of his arguments, the learned counsel for the res pondents relying on a Division Bench authority of Karachi High Court reported‑ in P L D 1975 Karachi 754 contended that the appeal before the Labour Appellate Tribunal was incompetent as the case mainly and solely related to the interpretation of Article 4 of the Settlement dated 21st March, 1975 therefore the matter should have been referred to the Tribunal under section 50 of the Industrial Relations Ordinance. This contention, we are afraid, is misconceived inasmuch as in the reported, case, the Labour Court was moved under section 34 of the Industrial Relations Ordinance and the law as then stood, the right to go in appeal by an aggrieved person was not given in sections 37 and 38, there fore, in the said case it was rightly held that the appeal was Incom petent. The effect of the above judgment has, however; been now negatived by amending sections 37(3) and 38(3) by Act XI of 1976 and Labour Laws (Amendment) Ordinance, 1977 promulgated on 16th April, 1976 and 1st February, 1977, respectively whereby an appeal, from a decision. Award or settlement under section 25‑A or 34 of the I.R.O. 1969 ha been provided for. This being the position the appeal filed by the petitioner before the learned Chairman Labour Appellate Tribunal was competent.

5. In view of the above, the writ petition is accepted, the orders of the Labour Court dated 2nd April, 1978 and that of the learned Chair man. Labour Appellate Tribunal dated 24th March, 1979 are set aside and that of respondent No. 3 dated 20th August, 1975 is restored with ac order as to costs. Petition accepted.