1998 PLP 1309 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench dated 7-11-1994 whereby Constitutional petition filed by the respondent company has been accepted and the orders of the Labour Tribunals directing the petitioner's reinstatement in service set aside. 2 Facts necessary for the disposal of this petition, briefly stated, are that the petitioner was appointed as a Driver with the respondent Company in 1967. He was later posted/promoted as Transport Clerk on 5-3-1977. His services were, however, terminated vide order dated 31-8-1987 issued by the Divisional Engineer on the ground that the post of Transport Clerk had been abolished. Aggrieved of his termination, the petitioner filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969. The Labour Court after recording the evidence adduced by both the parties held, inter alia, that if it was necessary to abolish the post of Transport Clerk, the petitioner could have been reverted to his substantive post of Driver. Grievance petition was accordingly accepted vide order dated 14-6-1990 and it was directed "that the petitioner be reinstated in service as a Driver with all back benefits".

3. Respondent company filed an appeal against the order of the Labour Court but the same was dismissed by the learned Labour Appellate Tribunal holding that the order of termination was violative of Standing Order 12(1) of the Standing Orders Ordinance, 1968 and it could not, therefore, be sustained. Yet another defect pointed out by the learned Tribunal was that the petitioner was posted as Transport Clerk by the General Manager/Director but the termination order was passed by Divisional Engineer. According to the Tribunal, only General Manager/Director was competent to terminate the service of the petitioner and not the Divisional Engineer who under the rules could pass termination orders in respect of Engineering Department staff getting salary in excess of Rs.1.200 per month provided the powers in that behalf were delegated to him. It was observed by the Tribunal that there was no evidence of such delegation nor any evidence with regard to the salary of the petitioner. The learned Tribunal repelling the cross-objections filed by the petitioner upheld his reinstatement to the post of the Driver which post, it was observed, was admittedly available.

4. The orders of the Labour Court and the Labour Appellate Tribunal were assailed by the respondent company in a Constitutional petition which as stated above has been accepted by a learned Single Judge of the Lahore High Court vide the impugned judgment.

5. We have heard the learned counsel for the petitioner. He has, inter alia, contended that Labour Tribunals having found that the post of Driver was available and this being a finding of fact was not open to interference in writ jurisdiction of the High Court particularly when it was not shown to suffer from any misreading or non-reading of evidence. In the circumstances, it is contended by the learned counsel that the petitioner's reinstatement to the post of Driver was perfectly valid and for this reason alone, the judgment of the High Court cannot be sustained. Learned counsel also vehemently contended that the question of competence of the Divisional Engineer to order the termination of the petitioner's service has not been attended to by the learned Single Judge in its proper perspective and with reference to the relevant rules on the subject. 5-A. In view of the contentions raised by the learned counsel, we find it a fit case for the grant of leave to appeal. Order accordingly. A.A./M-106/S Leave granted.