1988 PLP 1002 (PLC(CS))

Date of hearing: 14th January, 1988. This is an appeal filed by the appellant against an impugned order, dated 27‑8‑1987 passed by the Sind Labour Court No. VII at Sukkur, who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Briefly stated the facts of the case are that the, appellant claimed to have been appointed as a Fitter on 31‑10‑1966 on Work Change Establishment with the respondents Nos. 1 and 2 and in the year 1968, was re‑designated as Spray Painter and subsequently having worked years together he claimed to have attained the status of permanent workman within the meaning of Standing Orders Ordinance, 1968. The appellant claimed that though on 12‑12‑1983 his services were terminated, but, he filed his grievance petition under section 25‑A, I.R.O., 1969 before the Learned Labour Court No. VII at Sukkur which was subsequently allowed and he was ordered to be reinstated in service; vide order dated 24‑10‑1984. The appellant further claimed that as the respondents Nos. 1 and' 2 had refused to implement the order of the learned Labour Court, therefore, he filed a complaint against them under section 25‑A (8), I.R.O. 1969 which had annoyed them and consequently he was again terminated on 30‑7‑1985 on a false plea of retrenchment resulted m that he again challenged his termination from service before the learned Labour Court No. VII at Sukkur, which has passed the impugned order on 27‑8-1987. The appellant further claimed that he had worked with the respondents Nos. 1 and 2 as Fitter from 31‑6‑1966 to 1‑4‑1968 and as Spray Painter from 1‑4‑1968 to 11‑6‑1971 and was regularised as Painter on 1‑7‑1982 and remained as such upto the date of his alleged termination from service on a false pretext of retrenchment. He claimed that actually designation or category was not to be considered but the seniority was to be considered from the date of his joining the establishment and even in that case he was senior to respondent No. 9 namely, Mushtaq Bhutto who was retained in service as a Painter. Being aggrieved with this action of the respondents Nos. 1 and 2 the appellant submitted his grievance petition before the learned Labour Court.

3. The respondents Nos. 1 and 2 resisted the claim of the appellant and submitted that the appellant was retrenched on 15‑6‑1971 and then on 9‑2‑1972 he was taken up as Spray Painter and was wrongly regularised as Painter. The respondent further submitted that as the post of Spray Painter was not sanctioned, therefore, his name was deleted from the regularized employees list dated 21‑12‑1985 and had denied that any junior was retained in service and that respondents Nos, 3, 4, 7, 8 and 9 were senior to the appellant, so, the appellant was not entitled to maintain his grievance petition under section 25‑A, I.R.O. 1969 which was liable to be dismissed. The respondents Nos. 3, 4, 7, 8 and 9 also denied the claim of the appellant.

4. The appellant filed his affidavit‑in‑evidence while one Wahid Bux was examined on behalf of respondents Nos. 1 and

2. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard at length Ch. Ashraf Khan the learned Advocate for the appellant and Mr. Abdul Rehman Sheikh, the learned Advocate on behalf of respondents Nos. 1 and 2 and have also carefully perused the record and proceedings of the case. At the very outset I would observe here that this case has a sad story of illegalities, biased and revengeful action on the part of respondents Nos, 1 and 2 and the poor appellant is a victim of their liking and dislikeing. It is an admitted position that the appellant was originally appointed as a Fitter on 31 10‑1966 on Work Charge Establishment and in the year 1968 he was redesign Ted as Spray Painter in the year 1968 and after having served for a number of years quite satisfactorily he attained the status of a permanent workman. It is again an admitted position that as a consequence of his termination from service on 12‑12‑1983, he filed his grievance petition under section 25‑A, I.R.O. 1969, before the learned Labour Court No. VII at Sukkur, who, vide his order, dated 24‑10‑1984 had ordered his reinstatement in service with full back benefits as a permanent workman and as the respondents Nos. 1 and 2 did not implement this order of the learned Labour Court, therefore, he submitted complaint under section 25‑A(8) of I.R.O. 1.969. It is also an admitted position on behalf of the respondents No s. 1 and 2 that the appellant was regularized as Painter on 1‑7‑1982 and was being paid his monthly salary, as such, till his illegal termination of service on a false plea of retrenchment. However, Mr. Ch. Ashraf Khan, the learned Advocate for the appellant has very correctly argued that the respondents Nos. 1 and 2 had filed an appeal before this Tribunal against the order, dated 24‑10‑1984 through which this same appellant was held to be a permanent and regularized Painter and reinstated in service with full back benefits and this appeal was withdrawn by the respondents themselves and the back benefits which were deposited by these respondents before this Tribunal were paid to the appellant. Mr. Ch. Ashraf Khan the learned Advocate for the appellant urged that as the respondents Nos. 1 and 2 did not implement this order of the' learned Labour Court, therefore, the appellant had initiated criminal complaint proceedings against them under section 25‑A (8) I.R.O. 1969, which was very mischievously and with mala fide intention got withdrawn under the signatures of the appellant as the poor appellant being an illiterate did not realize that on which written paper he was putting his signatures. Ch. Ashraf Khan, the learned Advocate for the appellant further pleaded that these complaint proceedings had annoyed the respondents Nos. 1 and 2 who were after him to get rid of him on any pretext, therefore, they very mechanisedly got him terminated from service on a false and concocted plea of retrenchment on the ground that the post of Spray Painter was not approved by the Finance Department of the Government, therefore, he cannot be retained anymore, and that the appellant was wrongly designated as Painter and regularised in service. Mr. Ashraf Khan the learned Advocate has submitted that if the Department had wrongly regularised in service the appellant as a Painter, then the Department should suffer for its own mistake and not at the cost of the poor appellant and that admittedly the respondent No. 9, namely, Mushtaq Bhutto who was junior Painter had been retained in service and the appellant who was senior painter was picked up to be terminated and this action on the part of the respondents Nos. 1 and 2 clearly proved the mala fides and revenge on their part against the appellant. I see much force in these pleadings of Mr. Ashraf Khan, the learned Advocate for the appellant. In this behalf Mr. Ashraf Khan has referred me to a list of the workers of the respondents Nos. 1 and 2 which was admittedly sent by them to the Registrar of Trade Unions Sukkur under the signatures of Agricultural Engineer for the purpose of Referendum wherein at Serial No. 81 at page 3, the respondent No. 9 namely, Mushtaq Bhutto's designation was shown as Painter and his date of appointment was 15‑9‑1985 where as admittedly the appellant was regularised in service as Painter with effect from 1‑7‑1982. In view of this admitted position, I would hold that the appellant was a permanent and regularised Painter with the respondents Nos. 1 and 2 with effect from 1‑7‑1982 and that respondent No. 9 namely, Mushtaq Bhutto was junior to him having been employed as Painter with effect from 15‑9‑1985. Therefore, the termination of the appellant on account of false plea of retrenchment and retaining the junior Painter in employment cannot be sustained and hence set aside. Merely by designating the appellant as Spray B Painter would not at all oust him from the category of employment as a Painter and his seniority over Mushtaq Bhutto, the respondent No.

9. This action on the part of the respondents Nos. 1 and 2 is clearly biased, revengeful and with mala fide intent‑ion against the appellant for the main reason that he had filed complaint against them before the learned Labour Court for non‑compliance of its order, dated 24‑10‑1984. Hence, the termination of services of the appellant is accordingly declared as `illegal' and the higher authorities of respondents Nos. 1 and 2 are directed to proceed immediately against these respondents, as per Law, who are directly responsible for all these illegal actions and unwarranted litigation t" thereby putting the Government into financial loss which be also recovered from their personal salaries and the funds. On the other hand Mr. Abdul Rehman Shaikh, the learned Advocate for the respondents has no legs to stand in support of his case and he has miserably failed to submit anything cogent in rebuttal of any of the pleadings of the appellant as I find nothing as such on the record of this case. In view of this position, I would also hold that the learned Labour Court had not appreciated the full and correct facts and documents brought on record in its impugned order which is contrary to law, hence is liable to be set aside.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The appellant is directed to be instated in service as permanent and regularised Painter with all back benefits forthwith. A.E./1261/Lb. S. Appeal allowed.