1990 PLP 30 (PLC)

This regular second appeal is directed against the judgment and decree of the District Judge, Sheikhupura dated 8th of May,1975 whereby the appeal filed by respondent No.1 against the judgment and decree passed by the Senior Civil Judge, Sheikhupura on 29th of January,1974 decreeing the suit of the appellant was accepted and the suit of the appellant was dismissed, leaving the parties to bear their own costs.

2. The facts briefly are that Abdul Ghafoor, appellant joined the Railway Department as Mason coolly on 18th of July,1949. Abdul Sattar, respondent No.2 was appointed as Chowkidar on 16th of October,l

951. On 12th of November,1957, respondent No.2 was promoted as hammer man. The appellant impugned the promotion of respondent No.2 as hammerman by way of an appeal on the ground that he was entitled to be promoted as hammerman in preference to respondent No.2 as he was senior to respondent No.2. On 13th of April,1963 the appeal of the appellant was accepted and he was promoted as hammerman vice respondent No.2 who was reverted as colly vide order Ex.P.I. Subsequently on the occurrence of a vacancy of a blacksmith, a trade test as prescribed therefore was held. The appellant qualified in the test and therefore, he was promoted as a blacksmith vide order dated 8th of March,1969 Ex.P.2. Respondent No.2 filed an appeal assailing the promotion of the appellant. On 20th of September,1969, the appellant vide order Ex.P.3 was reverted to the post of hammerman and in his place respondent No.2 was promoted and posted as a blacksmith. On 31st of March, 1970 the appellant instituted a suit for a declaration that the order dated 20th of September, 1969 was illegal, ultra vires and void and for a direction to respondent No.l to treat him as a blacksmith and issue order for his posting as such. He alleged that he was senior to Abdul Sattar, respondent No.2 and that the order dated 20th of September, 1969 had been passed without any notice to and without hearing him.

3. Respondent No.2 did not appear to contest the suit. Therefore, proceedings were taken ex parte against him. Respondent No.l, however, contested the suit asserting that the order dated 20th of September 1969 was correctly passed. It was denied that the appellant was senior to respondent No.2 or that respondent No.2 had not passed the trade test. The jurisdiction of the Civil Court to try the suit was also challenged.

4. The trial Court framed the following issues:‑ (1) Whether this Court has no jurisdiction to try the suit? (2) Whether the plaintiff has been reduced in rank? (3) Whether the order of Assistant Engineer No.5 Ocilla Sheikhupura dated 20‑9‑1969 is illegal, without jurisdiction and void for the reasons given in para. No.6 of the plaint. (4) Relief.

5. After appraising the evidence adduced by the parties, the learned trial Court found issue No.3 in favour of the appellant issue No.l was not pressed and issue No.2 was considered as redundant. Accordingly the suit of the appellant was decreed.

6. Feeling aggrieved, only the Railway Department viz. respondent No.l preferred an appeal. Abdul Sattar, respondent No.2 who was primarily affected by the judgment and decree of the trial Court did not file an appeal nor he was impleaded as a party to the appeal filed by the Railway Department. The learned District Judge reversed the finding of the trial Court on issue No.3 on the ground that the appellant was promoted to the post of blacksmith temporarily and since he was not confirmed in that post, his reversion as hammerman did not amount to demotion. He, accordingly, accepted the appeal of respondent No.l and dismissed the suit of the appellant. Hence this second appeal.

7. Learned counsel for respondent No.l has agitated that the Civil Court had no jurisdiction to try the suit. As mentioned above, this objection was taken in the written statement and issue No.l was framed thereon but at the time of arguments, the same was not pressed. It appears from the judgment of the learned lower appellate Court that this objection was not pressed before it also.

8. In support of the objection, learned counsel for respondent No.1 has cited Muhammad Saeed and 3 others versus Chairman, Pakistan Railways, Lahore and 2 others (1982 PLC 592) wherein it was held that on the establishment of Labour Courts, the jurisdiction of Civil Courts to adjudicate upon industrial disputes in respect of workmen was ousted by implication in view of section 25‑A of the Industrial Relations Ordinance,1969. Section 25‑A was added in the Industrial Relations Ordinance, 1969 on 13th April, 1972. Learned counsel for the appellant has stated that he examined the record of the precedent case and found that the suit in that case had been instituted on 19th of January, 1978. The suit of the appellant was, however, filed on 31st of March, 1970. Section 25‑A does not envisage that proceedings already commenced in the Civil Court would abate on its enforcement. Therefore, this provision of law does not affect the present proceedings.

9. As regards the merits of the case, the appellant was promoted as I blacksmith on 8th of March,1969 for two reasons; firstly that he was senior to respondent No.2 and secondly that he had passed the trade test while respondent No.2 did not appear in that test. It is, not denied that the appellant joined the Railway Department on 18th of July, l949 whereas respondent No.2 was appointed as Chowkidar on 16th of October,1951. The seniority of the appellant was upheld when on his appeal against the promotion of respondent No.2 as hammerman, he was promoted as hammerman and respondent No.2 was reverted as 'coolie vide order dated 13th of April, 1963 Ex.P.I. Muhammad Nasrullah P.W.2, LOW of the Railway Department and a Member of the Test Board deposed that the appellant had qualified in the trade test for the post of blacksmith while respondent No. 2 had absented himself. Ayub Ahmad, D.W.1, an Assistant Engineer, stated that there was nothing on record showing whether respondent No.2 had or had not passed the trade test. It is evident from the statements of these two officials that the appellant had positively passed the trade test but respondent No.2 did not pass the same. The appellant deposed as P.W.1 that before reverting him from the post of blacksmith on the appeal of respondent Ng.2, he was not served with any show‑cause notice. There is nothing on record to rebut this testimony. Learned counsel for the appellant has in this connection referred to Rule 619 of Section VI (Seniority) of the Pakistan Railways Personnel Manual Volume 1, which provides. "In every case in which it is found necessary to alter the position of an individual on the seniority list, to his disadvantage, a show‑cause notice must be served on him and his explanation obtained before final orders are passed." This rule was obviously violated in this case. Even if this rule were not in existence, the principle of natural justice embodied in the maxim audi alteram partem which inheres in every procedure required that the appellant should have been provided with an opportunity of hearing before reverting him from the post of blacksmith. In these circumstances, the order dated 20th of September,1969 was manifestly void and ineffectual and notwithstanding the same the appellant was entitled to continue as blacksmith.

10. In the result, this appeal is accepted and the suit of the appellant is decreed with costs throughout, setting aside the judgment and decree of the lower appellate Court and restoring the judgment and decree of the trial Court. M.Y.H./A‑726/L Appeal allowed.