1995 PLP 389 (PLC)

‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Retrenchment‑‑‑Re‑employment‑‑‑Road Transport worker transferred from one Station to another on his own request and thus treated as junior to those already working in Depot at new station‑‑ Termination of services of such junior on account of retrenchment, held, was quite legal‑‑‑Other workers so retrenched having been re‑employed Labour Court, held, had rightly passed order for re‑employment‑‑‑Plea that instead of re‑employment order of re‑instatement should have been passed by Labour Court, repelled. Ghulam Mustafa, Court Clerk for PRTC. Farooq Zaman for Respondent (Muhammad Tufail). Date of hearing: 3rd October, 1987. The two appeals captioned above emerge from the decision dated 26‑4‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No.9, Multan, whereby Muhammad Tufail (hereinafter called as the respondent) was directed to be re‑employed without back benefits. The respondent has challenged the direction of re‑employment passed by the learned lower Court claiming that he should have been reinstated, whereas Punjab Road Transport Corporation (hereinafter described as the appellant) has challenged the direction of re‑employment. Since both the appeals again from the same decision, they are being disposed of together through this single judgment.

2. The respondent was employed in 1976 and on 17‑3‑1980 his services were terminated on the plea of retrenchment. The respondent brought an application under section 25‑A of the Industrial Relations Ordinance, 1969 for re‑instatement, but alleging that the appellant had asked him to withdraw the petition and he would be reinstated, he withdrew the previous grievance petition with permission to bring fresh one. He brought departmental appeal and then brought fresh grievance petition. The respondent challenged the retrenchment on the ground that there was no justification and for the reason that his juniors were retained in service. The case of the appellant was that since the respondent was transferred to Sahiwal on his own request, therefore, he had ranked junior and was rightly terminated. The application for transfer of the respondent of Exh. P‑6 dated 13‑1‑1980. It is from Multan to Sahiwal. The case of the respondent is that he was not transferred to Sahiwal on his application Exh. P‑6 because he was firstly transferred to Lahore and from Lahore to Sahiwal. The order whereby the respondent was transferred to Sahiwal is dated 20‑1‑1980 and his application for transfer is dated 13‑1‑1980. Since seven days he was transferred to Sahiwal. It is clear that the transfer was on his own request. The order of termination of the respondent was thus quite legal, inasmuch as he had been transferred on his own request therefore, he had to rank junior to ones who had gone to the said depot prior to him. The seniority list is Exh. P‑

7. According to this seniority list, the respondent was on his own request transferred to Sahiwal Depot on 21‑1‑1980. Tauheed Khan, over whom the respondent claims seniority, joined Sahiwal Depot on 8‑1‑1980 on his own request. Since the respondent joined the Depot after Tauheed Khan, therefore, he was junior to him and on retrenchment was rightly terminated prior to Tauheed Khan. He claims seniority over Taj Muhammad also mentioned at Serial No.75 of Exh. P‑

7. No doubt, Taj Muhammad joined Sahiwal Depot on 16‑2‑1980 i.e. after the respondent but there is no note that he was transferred on his own request. Against his name the word conditional is typed. In evidence the word conditional has not been explained but apparently the word does not mean on one's own request. So, is the case with Nazar Hussain who joined Sahiwal Depot on 17‑2‑1980 conditionally. Javed Pal mentioned at Serial No.71, no doubt, joined Sahiwal depot on his own request but his date of joining is 7‑1‑1980 whereas the date of joining of the respondent is 21‑1‑1980. Since others were re‑employed and not reinstated, the learned lower Court has rightly directed the appellant to re‑employ the respondent and his request for reinstatement has been rightly refused.

3. The representative of the appellant has said that the grievance notice and the grievance petition of the respondent were time‑barred, but he has not been able to establish it. He has said that no appeal, copy of which is Exh.P‑17, was received. Exh. P‑16 is the postal receipt and the respondent deposed that under the said receipt he had sent departmental appeal, copy of which is Exh. P‑

17. No intimation of the rejection of the said appeal can be found on the record, the representative of the appellant has made reference to some other appeal, which the respondent had lodged on 10‑4‑1983 but since the respondent had brought an appeal earlier, copy of which is Exh. P‑17, the decision for which was not conveyed, therefore, the grievance notice and the grievance petition were not time‑barred.

4. Since Tauheed Khan has been wrongly found by learned lower Court as junior to the respondent, the latter has been wrongly directed to be re employed from the date on which the former was re‑employed. The respondent has not suggested any other date with effect which he should have been re‑employed. It is, therefore, left the appellant to see on what date the junior of the respondent was re‑employed and from what date the respondent would be considered to have been re‑employed. The learned lower Court has rightly disallowed back benefits. Since it cannot be determined as to when the junior of the respondent was re‑employed and he was ignored, this is another reason for not allowing back benefits.

5. As a result, both the appeals are disposed of accordingly. A.E./448/Lb.P Orders accordingly.