1998 PLP 306 (PLC)

Hafiz Muhammad Saeed for Appellant. Ch. Shabbir Ahmad for Respondent. Date of hearing: 16th July, 1997 The appeal is directed against the decision dated 12-7-1993, rendered by the learned Labour Court, Bahawalpur, accepting the grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, by Kaleem Sabir, respondent here, being the petitioner in the Court below.

2. Kaleem Sabir maintained that he was entitled to confirmation as Technician in Grade No. 8, but he was unfortunately reverted as Assistant Technician in Grade No. 5 and was also shifted, and this was in actual practice a manipulation on the part of the Authorities, resorted to with a view to curb his trade union activities, as he was a member of such association or union and the same was not relised by the employer.

3. According to the appellant, the petition could not proceed and was hit by the rule of res judicata and further that the respondent, being an ad hoc employee, could not claim confirmation as of right, particularly when he had also not qualified the 'trade test'.

4. The appellant, as respondent before the Labour Court, had vociferously urged that the employee had already submitted three petitions, one of which was withdrawn, and the other two were decided. This contention has been repelled by the respondent, according to Whom, there is available on record no worthwhile evidence to establish the assertion. It has, however, been conceded by the employee that his petition for regularisation of service is pending and he has not withdrawn it. Submission is that it has actually been adjourned sine die, by reason of pendency of the present petition.

5. Grievance notice Exh. P-5, despatched vide postal receipt Exh. P-6, has been held by the learned lower Court to be in order and to have been issued in time. It has been taken to have duly been served on the employer; and this conclusion has not been challenged in appeal by the learned counsel for the appellant.

6. Initial order of appointment of Kaleem Sabir is Exh. P-7, which indicates that the appointment had been made on 24-1-1987 as Technician in Scale No.

8. The learned lower Court has dilated upon the term 'ad hoc', connotation of which is employment of a person for a particular purpose and for a specified period, ordered as stop-gap arrangement. Although Kaleem Sabir was appointed against a temporary vacancy, and the services were liable to termination, at any time, without notice, or without assigning any reason, practically he had remained in service as technician carrying Scale 8 for four years and six months, before he was reverted to a post in Scale 5 on 3-8-1991. It is also not the case of the appellant that the services of the respondent had been extended from time to time. As such, the learned Labour Court has inferred, and rightly so, that the job, even if it was temporary, to begin with, had been converted in character into a permanent post.

7. Another important aspect of the case is that reversion of the respondent had been ordered, without any show-cause notice and without imputing to the employee any allegation constituting misconduct. The reduction in rank was effected during- pendency of an industrial dispute, in the opinion of the Court below. The employee had applied to the Court for regularisation of his service and even that move had been resisted by the respondent before the Labour Court. It will not be correct to urge that regularisation or confirmation is not claimable as a matter of right. It is true that an employee has not a vested or in-alienable right to claim confirmation, but it will also not be disputed that the employer or the authority cannot be permitted to act in a fanciful or whimsical or arbitrary way, and he must be bound down to proceed in a manner, which appears to every one around to be proper, fair, just and equitable. It is, thus, a justiciable right; and evidently if one is deprived of his due position, he has a genuine grievance to make, and he can certainly knock at the door of a Court of law for enforcement of his right or vindication of his honour.

8. Terms and conditions of service of the respondent have obviously been altered; and this could manifestly not be done, without observance of the requisite formalities. One fine morning, by a jerk of pen, the employer or the authority could not just make an order, reverting his subordinate from Scale 8 to Scale No.

5. It is maintained that the respondent had to acquire the requisite training, and pass the prescribed test or examination, without which he could not remain on the post for ever. The question, however, arises, if he was not equipped with this qualification and had not passed the test, in question, why was he given appointment against a post carrying Scale No.

8. If initially the stated disqualification constituted a bar against his appointment to the post, in question, it is not understood as to why, subsequently; and after several years, he was treated to be deficient in qualification and training in the sphere. Policy letters exhibited as R. 2 and R. 4, in the estimation of the learned lower Court, do not appear to have been acted upon, in letter and spirit; and I do not think that the Court below has fallen in error in making such an observation and in arriving at the aforesaid conclusion.

9. Throughout this period, ever since 24-1-1987, the employee has been drawing emoluments of the post, carrying scale No.

8. If he had appeared in the 'trade test', and had also failed to qualify it, it could not ipso facto entail his reduction in rank, as qualifying a test did not seem to be a condition precedent for his appointment to the post of technician, and his confirmation in the said post, without any gap or break, he remained a Technician, and is said to have even been considered for promotion, and at least he had crossed the efficiency bar, and completed the probationary period. How could then he be reverted to a lower post, and that too without following the prescribed procedure, as already observed? The impugned act of the Authorities, it has rightly been held by the learned Labour Court, was not sustainable in law, and could not be endorsed by a Court. If at all the employee is to be penalised or reduced in rank, the requisite procedure may be adopted, and, to begin with the explanation/reply of the official be obtained by serving him with a show-cause notice.

10. The judgment delivered by the learned Labour Court is not liable to interference or rescission, and is approved of. Since, throughout this period, the respondent has been working on a post carrying Scale No. 8, the question of allowing to him back benefits does not arise. The appeal has no merit and is hereby dismissed, with no order as to costs. H.B.T./904/Lb.P????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.