1976 PLP 570 (PLC)

Raja Muhammad .Akram for Respondent. Date of hearing: 29th May 1973. This is a petition sunder section 38 (5) of Industrial Relations Ordinance, 1969, for the non-implementation of the decision, dated 3-7-1972 of the Punjab Labour Court, Northern Zone, Lahore, the appeal which was dismissed by this Tribunal vide order dated 25-3-1972.

2. The facts of the case are that services of petitioners were retrenched by the Pakistan International Airlines Corporation. Shortly after that some persons were freshly employed. The petitioners filed petitions under section 25-A of Industrial Relations Ordinance, 1969 before the learned Labour Court on the ground that in accordance with Standing Order 14 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, they should have been given the chance and opportunity of re-employ ment and sought the permission from the Labour Court to direct the respon dents to re-employ them. The learned Labour Court vide its decision accepted the petitions and declared the petitioners as permanent employees in view of Standing Order 1, clause (b) of she West Pakistan Industrial and Commercial Employment i Standing Orders) Ordinance, 1968, and directed the respondents to re-employ them immediately. The learned Labour Court also directed the respondent to scrutinize if any junior to the petitioners were retained in service when the services of the petitioners were terminated. If it happened so, the matter should be set right so that the seniority of the petitioners did not suffer. The appeal against this decision was dismissed by this Tribunal vide its order dated 25-8-1972.

3. In appeal it was argued that the petitioners were not permanent employees and therefore Standing Order 14 did not apply in this case. In view of Standing Order 1 (b) the petitioners were held to be permanent employees and the decision of the learned Labour Court was upheld. In the present case the learned counsel for the petitioners contended:- (1) That the petitioners after re-employment under the order of the Labour Court are not being treated as permanent employees and are not being given the facilities, allowances and benefits, which are admissible and are being given to the permanent staff of the Pakistan International Airlines Corporation. (2) That fresh appointments were made after the termination of services of the petitioners in April, 1972 and before their re-employment, under the orders of the Labour Court and even thereafter, the said appointees were being treated as senior to the petitioners. (3) That the direction of the Labour Court that the Management should scrutinize if any junior to the petitioners were retained in services when the service s of the petitioners were terminated, has not been complied with.

4. The learned counsel fob the respondents while opposing this petition contended that the petitioners wore ordered to be re-employed, which order had been obeyed. Since their services were validly terminated as held by this Tribunal and the Labour Court, therefore, the question of their previous service and seniority was not within the scope of present proceedings. The petitioners were declared permanent by this Tribunal within the meaning of the Standing Order 1 (b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and it was on that basis that petitioners were ordered to be re-employed. Even if the petitioners were being designated 'Daily Wagers', 'Contract Staff', etc., it is not the violation of any order of this Tribunal and the Labour Court. According to the learned counsel the order of the Labour Court that the Management should scrutinize if any junior to the petitioners were retained in service when the services of peti tioners were terminated, was ambiguous because the petitioners were ordered to be re-employed in terms of Standing Order 14 and that under the law their service starts afresh from the date of re-appointment and the previous service put in by the petitioners could not be taken into consideration for any purpose including seniority. If it were to be done, it would be clearly against the law.

5. Re-employment under Standing Order 14 means neither re-instatement nor fresh appointment. It is a recall to the old job under statutory compul sion. Therefore, the petitioners will have the same rights, duties, privileges and obligations as before. Supposing if a person is a senior clerk, will he be recalled as a junior clerk Answer: No. In fact the petitioners are reservists on one year. Since by operation of law if they had become permanent before their retrenchment, on recall they will be re employed as before. According to Standing Order 14 where any members of workmen are retrenched and the employer proposes to take into his employment any person within a period of one year from the date of such retrenchment, he shall give an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by Registered Post to their last known addresses to offer themselves for re-employment, and they shall have preference over other persons, such having priority according to the length of his service under the employer. This shows that previous service has to be taken into account. The learned Counsel for the respondents contended that the words "other persons" mean outside and not persons already in employment. This contention bas no force because this legislation is primarily for the benefit of the employees and therefore beneficial construction should be placed. The interpretation, which is likely to defeat the object of the legislation, has to be discarded in favour of the interpretation, which promotes the object of the legislation. If this was not so, it will give an opportunity to an unscrupulous employer to partially or wholly close down the factory or any of its department, entailing the retrenchment of permanent staff with a view to deprive them of their existing rights and privileges. In fact it will be a fraud on the statute. I am fortified in this view by the judg ment of the Supreme Court in the cases Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, Sh. Muhammad Hassan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan Lahore, Sh. Muhammad Hassan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore (P L D 1968 S C 154), wherein it was held that the interpretation advancing the object of the legislation has to be preferred.

6. Thus the petitioners are entitled to all the rights, privileges, allowances benefits, etc., which are available to a permanent employee under any law, custom, usage, award or agreement, because they were held to have become permanent by operation of law.

7. In the result I find no force in the contentions of the learned counsel for the respondents and direct them to comply with the decision dated 3-7-19 72 of the Court below within a month from today. The petition is disposed of accordingly.