P L D 1977 Karachi 33 (PLP)

The learned counsel contends that the main reason behind this provision is that when an establishment wants to retrench a number of workers such retrenchment will be of the juniormost workers working in a particular category of workmen such as fitters, electricians, lathemen and personnel of watch and ward. The reason is obvious because in case the establishment wants to reduce the workers among the lathemen and the juniormost man in the whole establishment may be from the category of fitters and if the fitters were to be retrenched in such a situation it would work against the interest of the establishment. In reply to this contention of the learned counsel Mr. Khatak contends that the ground of categorisation has been taken for the first time and, therefore, cannot be allowed to be agitated at this stage. In support of this contention he has drawn by attention to the reply statement riled by the petitioners before the Junior Labour Court wherein, according to Mr. Khatak, it is nowhere asserted if respondent No. 3 was the juniormost is a particular category. Secondly it is contended by the learned counsel that there were issues framed by tire Junior Labour Court which were so framed with the consent of the parties and as issue No. 2 does not speak of a category of the watch and ward department, therefore, it should be presumed that the petitioner had consented to deal with the worker as belonging to the general category of workers. Lastly, it is contended that the finding of the two Courts below that respondent No. 1 belonged to the general category of workers is a finding of fact and, therefore, cannot be disturbed by this Court in its constitutional Jurisdiction. In this respect he relies upon P L D 1973 Lah. 230 and P L D 1972 Lah.

262. Dealing with the contentions raised by Mr. Kbatak I would say that in para. 3 of the reply statement the petitioner had clearly stated as follows:‑ "As regards para. 3, the allegations therein are irrelevant as his job became redundant as a measure of economy and re‑organisation effected by the respondent. The job of the Security Inspector was abolished and he being the only Security Inspector his services were terminated." By taking this stand the petitioners had narrowed down the category to which respondent No. I belonged to that of Security Inspector, not to speak of the larger category of watch and ward. Again in para. 5 of the reply statement an undertaking is given that in case the post of security inspector is revived within a year, as stipulated by Standing Order 14, it will be offered to respondent No.

1. It is, therefore, not correct to contend that no plea was taken as regards the specific category to which the respondent No. I belonged. As regards the consent issues I may say that there is nothing on record to indicate that any issues were framed by the Junior Labour Court. In actual fact Civil Procedure Code does not apply to the proceedings before the Junior Labour Court and, therefore, such Court is not required to frame any issues. In any case the reference made by the learned counsel for the A respondent to issues is in fact to the points framed by the Presiding Officer for the determination of the dispute between the parties. That does not amount to the framing of issues and, therefore, the contention of having framed such issues with consent is completely misconceived. But in any case even if there was no plea raised regarding the categorisa tion of workers to which respondent No. 1 belonged to or even if there were certain issues which did not take into account such categories, that would not have the effect of overriding the provisions of Standing Order

13. The provisions are quite explicit, and, therefore, could not be ignored. This Standing Order envisages different categories of workers within one single establishment. This is for obvious reasons, specially when workers are required to have specialised knowledge in a particular field, or to have a certain skill for performance of their jobs. In such cases the wisdom of applying the priniciple of 'last come first go' in terms of categeries is quite obvious. This is because if an establishment employs fitter and lathemen and due to some reasons retrenchment is to be effected as far as fitters are con cerned, it cannot be required to retrench a latheman only because he was the last to be employed in that establishment. In such a situation the employer would be acting perfectly within the bounds of law if he retrenches a fitter who was the juniormost in the category of fitters. As regards the question of findings of fact I am unable to agree with the learned counsel for the respondent. In all cases where there is a finding of fact which is shown to be, prima facie, contrary to the established facts on record or is based on misreading of facts it can always be disturbed in the constitutional jurisdiction of this Court. This is such a settled view that it hardly needs any authority. In the present case that learned Presiding Officer of the Junior Labour Court had torne, out of context, a sentence that the respondent was doing general work of general nature and made this statement the basis for arriving at a conclusion that there was a category of general workers to which everybody employed in the factory belonged and because it was admitted that the respondent was also doing the work of general nature, therefore, be also belonged to that category. In the first place an establishment of specialised nature, such as the petitioners are, who are manufacturing tyres and tubes for cycles and batteries for the motor cars, there have to be variety of jobs being done in their factory and each type of job would require a specialised category of workers skilled in their own field. It, therefore, cannot be presumed that such factory would be employing only one general category of workers to man all sorts of jobs. Secondly this statement itself has to be read in the context in which it has been made. It would be relevant to quote here the relevant portion of the statement in this regard "The applicant Subedar Falzur Rehman was the Security Inspector in the respondent establishment. His duties were to check the inward material. He also used to accompany the material brought to and from our Keamari godown. There are four Security Supervisors. The applicant was doing general work of general nature." This statement clearly indicates that Subedar Fazlur Rehman belonged to the Watch and Ward Department and his duties were those of security. In the same context he was required to do certain work of general nature but that also would be with respect to the duties of watch and ward and nothing else. It was, therefore wrong inference on the part of the Courts below, based on a clear misreading of evidence that he was a general worker, which cannot be sustained. In this context the learned counsel for the petitioner has drawn my attention to para. 2 of the petition wherein specific functions of the watch and ward section have been detailed. In this para it is contended that this section looks after the security needs and requirements of the entire undertaking. Then the following specific functions are enumerated "(i) Checking of materials received and goods sent out of the factory. (ii) Supervision of watch and ward arrangements and checking at the time of factory closing. (iii) Supervision of chowkidars' performance at the time of opening and closing of the Factory shifts. (iv) Accompanying material brought from Karachi Godown and super vising its loading and unloading. (v) General duties of general nature regarding Security." These contentions in the petition have not been controverted by the respondent and, therefore, will be deemed to have been duly established. It is also noteworthy that it was not the case of the respondent, at any stage before the Courts below, or before this Court, that Fazlur Rehman was a worker doing job of a general nature. On the other hand, the specific contention was that he was employed as Security Inspector, which by its very designation implies that it is a job of specialised nature, belonging to a category of its own. Another contention raised by the petitioners is that if the respondent No. 1 was considered to be belonging to the broader category of security staff he was the juniormost among the persons employed in that section. Other persons employed were "Khair Gul 6‑4‑1953. Abdul Ghafoor 13‑7‑1970. T. H. Shah 14‑11‑1970. Amir Dad 28‑11‑1970." As against them the respondent No. 1 was employed on 1‑1‑1973. It is contended that if he was put in that category alongwith them he was the o juniormost and, therefore, his retrenchment was unexceptionable in view of the provisions of Standing Order

13. Mr. Khatak had nothing to controvert this contention. For the foregoing reasons I would accept the petition and would declare that the orders of the Junior Labour Court as well as of the Labour Court were without lawful authority, having no legal effect. I would however, leave the parties to bear their own respective costs. S. Q. Petition accepted.