2003 PLP 286 (PLC)

S.25-A

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12

Termination of service

Services of employee were terminated on grounds of financial crises and abolition of post of employee

On filing grievance petition by employee against order of employers terminating his services, Labour Court set aside order of termination on ground that employee being senior in his cadre could not be removed in presence of his juniors

Employee was senior most in his cadre/section even according to seniority list wherein he ranked on the top-- Employers could not prove their stance that the employee was given an offer of transfer to another section as a condition of his retention in service, but employee did not agree to it

Excuse of such offer was neither in writing nor was taken by employers in written statement

Same could not be relied upon particularly in circumstances when juniors to employee were retained in service by transfer to another section

Labour Court in circumstances had rightly held that employee being senior in his cadre could not be removed in presence of his juniors

Appeal against judgment of Labour Court, was dismissed. Nisar Ahmad Khan for Appellants Ijaz Anwar for Respondent. Mushtaq Ahmad respondent was an employee of Babri Cotton Mills, Habib Abad Kohat, having been appointed on 9-9-1986 as Fitter-cum- Quli and having been transferred on 6-6-1987 to the casting section. On grounds of financial crises and abolition of post, his services were terminated on 24-9-1994. He filed grievance petition which was accepted by Labour Court Peshawar on 4-2-1999 on the ground that he was senior in his cadre and thus could not be removed in the presence of his juniors. Babri Cotton Mills (B.C.M.) have come up in appeal.

2. From the statement of respondent Mushtaq (P.W.3) and that of Executive Director of the company namely Sardar Ali (R.W.1), it is abundantly clear and not controverted that respondent Mushtaq Ahmad was the senior most in his cadre/section. Same is evident from the seniority list Exh.R.W. 2/X-1 where he ranks on the top.

3. The only answer that the learned counsel for the appellant had to the above situation, was that the respondent employee was given an offer of transfer to another section as a condition of his retention in service but he did not agree to it and hence removed. The excuse of such offer is neither in writing nor taken as a stance in the written statement and hence cannot be relied upon particularly in the circumstances when his juniors were retained in the service by transfer to another section. When the condition of transfer is not in black and white and when not taken in the written statement, it would be deemed to have not been in existence. When such is the situation the respondent should have also been transferred like his juniors.

4. In the circumstances no exception can be taken to the findings of the Labour Court dated 4-2-1999. The appeal having no merits is hereby dismissed. H.B.T./9/NWFP(L) Appeal dismissed.