2005 PLP (C (PLC(CS))

NAZAR MOHAMMAD SHAIKH (MEMBER).

Appellants have filed these appeals under section 4 of the Service Tribunals Act, 1973 read with Standing Order No.12(3) of the West Pakistan Industrial and Commercial Employees Standing Order Ordinance 1968 to agitate against their termination vide Respondent s order dated 6-4-1988. Since all these appeals contain common questions of law and facts, therefore, these are being disposed of by this single judgment. Appeal of Aurangzeb Taj bearing No.1910(K) of 1999 being the lead appeal is discussed hereunder:--

2. Appellant joined the Respondnet-Organization as Helper on 5-5-1976 and was promoted as Mechanic in 1977. Respondent terminated the services of the Appellant vide their order dated 6-4-1988 which reads as under:-- SINDH ENGINEERING (PRIVATE) LTD. KARACHI No. RET/88 6th April, 1988 By Hand/Registered A.D. Mr. Aurangzeb Taj Mechanic Sindh Engineering (Private) Ltd., Karachi. Dear Sir, RETRENCHMENT

1. It is matter of regret that the operating situation of the Company has deteriorated to such an extent that it cannot any longer afford to continue to employ the existing number of employees.

2. In an attempt to meet such redundancy situation, voluntary separation/retirement schemes were offered to all categories of employees and although a number of officers availed of the scheme applicable to them, last year the response of the workers to the scheme applicable to them had been negligible keeping in view the extent of the redundancy among the workers categories.

3. Therefore with a view to surviving as a viable and economic operational unit and for the purpose to achieve economy and effect reorganization in the Company necessitated due to impending closure of motor-cycle assembly, the anticipated stoppage for sale of Toyata products in the near future and the reduction in sale of Mazda Chassis etc., the Management has been compelled to decide to retrench/terminate the services of a number of workmen in various categories.

4. Since all jobs are subject to transfer throughout Pakistan and because such transfers have in fact taken place in the past, your juniority/seniority among the workmen employed in the category of Mechanic in the Company as a whole in Pakistan has been taken into consideration, and you being among the junior most Bench Fitter in the company, your employment is hereby retrenched/terminated with effect from the close of work on Thursday, 7-4-1988 in accordance with Standing Orders 12 and 13 of the Standing Orders Ordinance, 1968.

5. Should the circumstances change and need arise for the Company to recruit/employ a Mechanic within a period of one year, you will be offered re-employment in accordance with Standing Order 14.

6. Please collect all your legal/termination dues including one month s wage in lieu of notice of termination of employment besides gratuity, provident fund etc., from the Accounts Department.

7. Special arrangements have been made for the retrenched Workers including yourself to collect your legal dues from 10.00 a.m. to 1.00 p.m. and 2.00 p.m. to 4.00 p.m. on Sunday (10-4-1988) and Monday (11-4-1988).

8. A signed copy of this letter has already been sent at your residential addresses available in your Personal File through Registered A.D. Yours faithfully For Sindh Engineering (Private) Ltd., Sd/- Malik Ayazul Haque Manager (Administrative/Personnel) Appellant being a worker in terms of Standing Order Ordinance 1968, served grievance notice on the Respondents as required under section 25 of the I.R.O. 1969 and also filed a Grievance Petition before the Fifth Sindh Labour Court for reinstatement in service. The Labour Court dismissed the Grievance Petition vide order dated 31-5-1993 which was challenged before the Sindh Labour Appellate Tribunal (S.L.A.T.) in terms of section 37 of I.R.O. 1969. The appeal was also dismissed by the S.L.A.T. vide order dated 21-4-1994. Thereafter Appellant filed Constitutional Petition bearing No.D-2031 of 1994 before the Hon ble Sindh High Court on 25-8-1994 which was admitted and notices were served on the Respondents. Before the Constitutional Petition could be decided by the Hon ble High Court, the Service Tribunals Acts, 1973 was amended on 10-6-1997 and section 2-A was inserted bringing all the employees of the Government controlled/owned Corporations and autonomous bodies within the ambit of FST s jurisdiction in terms of Article 212 of the 1973 Constitution and, as such, the Constitutional petition filed by the Appellant was also declared as having abated by the Sindh High Court vide its order dated 23-10-1998. Appellant then approached the Tribunal through this appeal which was filed on 28-11-1998.

3. The learned Counsel for the Appellant strenuously argued the appeal and maintained that the retrenchment of the Appellant was illegal as he was a permanent employee and that there was no adverse economic condition of the Respondent-Organization which warranted retrenchment. He further argued that the Respondents while terminating his services have violated the established and approved principle of retrenchment i.e. last come first go and that the Seniority List produced by the Respondent-Organization in the Labour Court and also S.L.A.T. was not draw up in accordance with the rules. He further maintained that there were stil job opportunities available with the Respondent-Organization as they have hired contract workers. He further argued that the Appellant s seniority has not been correctly reflected as he has continuously served the Respondents as mechanic throughout his career and, therefore his retrenchment was not in accordance with established provisions of law. He further stated that the Appellant had rendered more than one year s service and, as such, he was a permanent workman and his service right guaranteed and in this regard relied on the ruling of the Hon ble Supreme Court reported in 1997 SCMR 1128. He further maintained that Respondents have also violated Standing Order No.14 by not recalling the Appellant for re-employment as there were still jobs available.

4. The learned Counsel for the Respondent opposed the appeal and raised preliminary legal objection that the appeal was time-barred as the cause for filing the appeal arose on 10-6-1997 when the Service Tribunals Act, 1973 was amended and section 2-A was inserted and referred to section 6 of the Service Tribunals Act, 1973 wherein it is stipulated that period of 90 days was allowed for filing service appeal before the Tribunal in all the pending cases before various Courts. He argued that the abatement was automatic and no order was required to be passed in the pending proceedings before various Courts as decided by the Hon ble Supreme Court in the ruling reported in 1980 SCMR

443. He further maintained that this dictum was followed in number of appeals by the FST including Appeal bearing No.946(K)/98 which was upheld by the Hon ble Supreme Court in Civil Petition No.244-K to 246-K of 1999. He further stated that the FST in another Appeal bearing No.295 decided on 26-3-1999 held that the appeal beyond 90 days period was time-barred. He also further argued that even when the abatement order was passed by the Hon ble High Court on 23-10-1998 the appeal was not filed immediately after that date. He further maintained that even application for condonation of delay has not been filed. Learned Counsel denied the allegation of malice and ill-will against the Appellant and argued that retrenchment was upheld by the Labour Court and the S.L.A.T. and, as such, the appeal was not maintainable. He further asserted that the termination of the Appellant was strictly in terms of Standing Order No.12(3) and 13 of the Standing Order Ordinance 1968. He also denied that Appellant s services were terminated by verbal order which is not a fact. He stated that written termination order was sent by registered post on 6-4-1988. Respondents learned Counsel further maintained that the Appellant s retrenchment was done strictly in accordance with the principle of last come first go enshrined under Standing Order 13 of the Standing Order Ordinance, 1968 and asserted that no irregularity or illegality has been committed. He also maintained that the Appellant had always satisfied with the determination of his seniority and categorization and, as such, this question was also not raised in his Grievance Petition which has been annexed as Annex-B to the Memo of Appeal. He further stated that no employee has been recruited by the Respondents and that the provisions of recalling terminated employee was within a period of one year and was not applicable to the Appellant who had been terminated long back. Learned Counsel also maintained that the Appellant has not produced any evidence to support his contention. He further raised the issue of the FST s competence to challenge Labour Court decision and in this regard referred to the rulings of the Hon ble Supreme Court reported in 2001 SCMR 328 and PLD 2003 SC 90.

5. In rebuttal, the learned Counsel for the Appellant maintained that FST had jurisdiction to hear Labour Court s decision and in this regard he also relied on the ruling of the Hon ble Supreme Court reported in 2001 SCMR 328 and FST s Court order dated 30-8-2002 wherein it was held that the FST was competent to hear such appeals.

6. We have carefully considered the submissions made by the Counsel from both sides and scrutinized the record carefully.

7. The following issues are involved in this appeal: (a) Limitation. (b) Whether the retrenchment was in accordance with the principle of last in first out ? and (c) Whether the FST has jurisdiction to bear such appeals?

8. We will first address the issue of limitation. The facts of the case clearly indicate that the Appellant s services were terminated on 6-4-1998 which was challenged by the Appellant first in the Vth Sindh Labour Court and after failing to secure any favourable order he challenged the dismissal or his Grievance Petition before S.L.A.T. where also the petition was dismissed and he went to the High Court through Constitutional petition which was still not decided when section 2-A was inserted by amendment in the Service Tribunals Act, 1973 whereby all the employees of the Government controlled/owned Corporations were deemed to be civil servants for the purpose of service matters and were brought within the ambit of FST s jurisdiction as defined in Article 212 of the 1973 Constitution, section 6 of the Service Tribunals Act, 1973 provides that 90 days period was allowed for filing appeal before this Tribunal from the date of insertion of section 2-A i.e. 10-6-1997 and no abatement order was required by the Court whether such cases were pending section 6 ibid reads as under.

6. Abatement of suit and other proceedings.

All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer an appeal to it] in respect of any such matter which is in issue in such suit, appeal or application. Respondents have strictly stressed this point that limitation should start counting from 10-6-1997 and the Appellant came to this Tribunal on 28-11-1998 i.e. after a delay of more than one year and, as such, the appeal has become time-barred. Respondents in support of their contention have relied on the ruling of the Hon ble Supreme Court in Civil Petitions Nos.244-K to 246-K wherein it was held by their Lordships as under: On perusal of the Memo. of Appeal and the documents filed therewith and after hearing the Appellant s Counsel and after study of the law relating to the present appeal it can very safely be said that appeals were not within time as not filed within 90 days from 10-6-1997 the date of insertion of section 2-A in the Act as required to the relevant provision of section 6 of the Act. The Supreme Court also observed as under; The Tribunal has meticulously recounted the various happenings which took place in relation to the petitioner (and other similarly placed), in the past 15 years and has come to the right conclusion that the appeals before the departmental authorities as also the Tribunal were beyond time from all angles. In view of the express provisions of section 6 and the dictum laid down by the Hon ble Supreme Court we agree with the Respondents Counsel that the appeal is time-barred. Strangely enough the Appellant has not even filed an application for condonation delay. Further, Appellant has even filed this appeal before the Tribunal beyond 30 days from the abatement order passed by the Hon ble Sindh High Court. Thus, viewed on all counts this appeal is badly time-barred.

9. Adverting to the issue of seniority, Appellant has been shown as Mechanic in the Seniority List issued on 7-4-1988 which is reproduced as under: SINDH ENGINEERING (PRIVATE) LTD, KARACHI Seniority List countrywide-Including Karachi, Rawalpindi, Lahore as on 7-4-1998 Category-Mechanic Sr. No. Batch No. Name Date of appointment 1. 90063 Amir Afsar/Ahmed Khan 01/10/66 2. 61976 M. Afzal/Sher Afzal 17/9/69 3. 90094 Samander Khan/Mehar Ali 1/6/70 4. 90095 Zahir Ahmed/M. Nazir 1/6/70 5. 60956 Bachoo/M. Hashim 1/6/70 6. 60958 L.D Souza/M.D Souza 1/6/70 7. 60957 A. Sattar/Ahmed Bux 1/6/70 8. 80166 Tariq Mehmood/M. Mehboob 18/1/73 9. 60965 Hussain Muhammad Ali/M. Ali. 1/4/73 To be retrenched 10. 60964 S. Shahid Ali/S. Usman Ali 1/4/73 To be retrenched 11. 60963 Flex Domnic D Souza/M. D Souza 1/4/73 To be retrenched 12. 61216 Ghulam Qadir/Karam Din Khan 17/12/73 To be retrenched 13. 60320 Nisar Ahmed/Chotto Abdullah 30/9/74 To be retrenched 14. 60906 Aurangzaib Taj/A. Rehman Khan 5/5/76 To be retrenched 15. 80171 Humayun Pervain Lodhi/A. A. Lodhi 31/12/81 To be retrenched The perusal of the above Seniority List clearly indicates that the Appellant has been retrenched strictly in accordance with the Seniority List where he is junior. Appellant s Counsel admitted during the course of hearing that the Seniority List as far as its contents were concerned was not wrong. He also could not produce any counter list to challenge the veracity of the Seniority List or substantiate that any junior of the Appellant has been retained in service or recalled by the Respondent. We, therefore, feel that the Appellant s seniority has been correctly determined and consequently he has been rightly retrenched in accordance with the principle of list in first out .

10. Coming to the issue of jurisdiction of the FST to hear such appeals we reproduce FST s order in this regard which reads as under: Since the question of maintainability is involved, we would like to reproduce platinum (b) of the authority reported in 2002 PLC (C.S.) 18, where their Lordships of the Hon ble Supreme Court held: (b) Service Tribunal Act (LXX of 1973)

Ss. 2-A and 4

Effect of insertion of S.2-A in the Service Tribunals Act, 1973

Scope

Appeal

Maintainability

jurisdiction of Service Tribunal

Matter was decided by Labour Court and appeal was pending before Labour Appellate Tribunal

By insertion of S.2-A in the Service Tribunals Act, 1973, the appeal pending before the Labour Appellate Tribunal had abated and the matter was taken, to the Service Tribunal

Appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against the judgment of the Labour Court

Validity

Effect of S.2-A of the Service Tribunals Act, 1973 was that notwithstanding any judgment rendered by the Labour Court or any other forum, all such matters covered under S.2-A of the Service Tribunals Act, 1973 stood abated

Service Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons

Judgment passed by the Service Tribunal was based on erroneous assumption of law that the appeal filed by the appellants was bereft of jurisdiction in the matter

Service Tribunal failed to appreciate the judgment passed by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq, reported as PLD 1981 SC 249 and fell in error by dismissing appeals of the appellants on the ground of maintainability and lack of jurisdiction

Judgment passed by the Service Tribunal for decision afresh

Petitioner for leave to appeal was converted into appeal and the same was allowed. Thus relying on the aforesaid authority, we are of the view that this Tribunal is competent to hear such type of appeals, therefore, the objection raised by the counsel for the respondents regarding maintainability, stands overruled.

11. In view of the above facts, we do not find any merit in this appeal and is also not sustainable on ground of limitation, such, we dismiss the appeal.

12. This judgment shall also apply mutatis mutandis to the above listed appeals.

13. No order as to costs. Parties be advised accordingly. H.B.T./163/FST Appeal dismissed.