1998 PLP 80 (PLC)

Umar Alvi for Appellant Mian Muhammad Hanif for Respondent Date of hearing: 9th July, 1997 By a judgment announced by the learned Labour Court, Multan, camping at D.G. Khan, Bashir Ahmad's grievance petition was accepted on 8-12-1996, and he was ordered to be reinstated in service with full back benefits. The employer has come up in appeal to this forum.

2. Bashir Ahmad was working in the Accounts Section of the Thal Jute Mills Limited. On account of what was called re-orgainzation of the concern, the strength of the employees under-went retrenchment and Bashir Ahmad was ousted from service on 17-12-1994. He maintains that he had put in about 18 years of satisfactory service, and it occurred to the management to get rid off him, and on a false pretest of retrenchment, his services were dispensed with. Although, initially an objection was taken up by the appellant, as regards status of the employee and the competence, of the Labour Court in the matter, such an objection was given up, in the course for arguments. Another objection, however, was to the effect that although several people were retrenched, and quite a few were going to be adversely affected, in the event of success of the grievance petition, they were not impleaded as parties, and would thus, be condemned unheard, in case the grievance petitioner was crowned with success.

3. The learned counsel for the appellant-employer has put forth in the grounds of appeal a number of contentions. It is submitted that re organization of an establishment is the right and prerogative of the employer, who is the sole judge to determine modalities of the proposed reorganization and such an exercise is not open to judicial review. The learned lower Court, according to the appellant, has erred in proceeding with the matter, that suffered from misjoinder of parties, and has based its judgment on conjectures and surmises. The employee had no right, guaranteed or secured under any law, award or settlement, to impose himself upon the employer and to force him to keep him on the rolls, even though his services were not needed. It was maintained that the impugned decision suffered from misreading and non-reading of evidence and was full of fanciful assumptions. In particular, emphasis was laid on the assertion that the nature of the job, in all the Sections of the Accounts Department, was not identical and different sections had their own independent existence or entity. It was vociferously averred that no worker junior to Bashir Ahmad had been retained and actually he being the junior-most was liable to retrenchment, and the employer, therefore, did nothing wrong in removing him from service, especially as it was his own out-look to take a decision, keeping in view the inexigencies of service and work and the requirement of the employees their number in different branches or sections.

4. It is the case of the appellant here, respondent before the Labour Court, that the Accounts Section is comprised of so many subsections, as Accounts, Finance, Closing, Store-Ledger, Audit, Data Center, Cash and Wages, etc. and that seniority has to be reckoned of determined keeping in view the sub-section or the branch in which a particular person is employed and overall position of the Broader Section, say, the Accounts Section has not to be kept in view. The learned lower Court is of the view that retrenchment cannot be conducted in a hotch-potch manner and must be undertaken systematically and in keeping with the familiar norms and principles. Of justice Certain documents have twice been marked or exhibited as Exhs. R-1 and 2, but this duplication may be clarified on a reference made to the statements of Fazal Hussain PW-2 and Ejaz Hussain RW-1. In the statement of Fazal Hussain P.W. certain papers have been put to him by the learned counsel for the employer, and the same, purportedly, advancing the cause of the establishment, have been exhibited as R-1, R-2 and R-3. The documents show that he had voluntarily tendered his resignation and had even received all of his dues. He has, however, explained the reasons for what has been described as in-voluntary cessation of service of certain employees, including himself. Ejaz Hussain has appeared as R.W.1, a witness of the employer. Documents put to him or produced by him have been exhibited as R-1 and R-2, though the same should have been marked as Exhs. R-4 and R-5, being the Retrenchment Policy and the List of the Accounts Staff or the Seniority List (at pages 45 and 47 of the file of the lower Court). Bashir Ahmad, at serial No.5, is in the Wages subsection and the categorisation leaves little doubt about the fact that all the subsections belong to one and the same section, the Accounts Section. Seniority of an official is not, therefore, to be examined or determined with reference to a particular subsection in which he is employed. Overall seniority of the officials in the Accounts Department will have to be kept in view, as already said. Manzoor Hussain, at serial No. 6, in the Wages subsection, is still working and his services have not been terminated, and this fact is not denied by the employer. He, as also a number of other union employees, have been retained in service; and this development would demonstrate that retrenchment has not been done in a fair, just and equitable manner. Bashir Ahmad appears to have been picked up for a discriminatory treatment and retrenched, although he was not junior-most. The learned lower Court, is, therefore, justified in coming to the conclusion that he has been struck off the rolls of the establishment on a vain pretext or a lame excuse.

5. This being the position the decision delivered by the learned lower Court cannot be interfered with and is endorsed. It is not disputed that Bashir Ahmad will be attaining the age of superannuation in December, 1997, and he will get pension, as also all other old age benefits, but he cannot, at the same time, be held disentitled to the back benefits, having been ousted from service in a wrongful manner. Since Bashir Ahmad has not rendered service to the concern practically, he is entitled, in my estimation, to have half of the back benefits. The appeal is dismissed, with the above modification, as substantially it is devoid of merit. There shall be no order as to costs. H.B.T./907/Lb.P Appeal dismissed