2019 PLP 11 (PLC)

ABDULLAH BALOCH, J.

Since common question of law is involved in all petitions, as such, through this common judgment the Petitions Nos. 154, 155, 156, 207 and 208 of 2012 are being disposed of, filed by the M/S. QESCO (Quetta Electric Supply Company) through its Chief Executive Officer against the judgment dated 28.12.2011 passed by the learned 1st Labour Court, Quetta and dated 18.02.2012 passed by the learned Labour Appellate Tribunal, Balochistan in C.Ps. Nos. 154, 155, 156, 207 of 2012. While against the judgment dated 08.3.2012 passed by the Member Labour Appellate Tribunal, Balochistan in C.P. No. 208 of 2012, whereby the grievance petitions filed by the respondents No. 1 have been allowed, the appeal filed by the petitioners were dismissed.

2. The petitioners filed the instant petitions C.Ps. Nos. 154, 155, 156 and 207 and 2012 with following prayers: "It is accordingly respectfully prayed that the impugned judgment dated 28-12-2011 passed by the learned Presiding Officer 1st Labour Court, Quetta and the judgment dated 18.02.2012 passed by Member Appellate Tribunal may kindly be set aside and the grievance application filed by the respondent may kindly be dismissed being illegal, and void of merits, with cost throughout, in the interest of justice, equity and fair play." And in C.P. No. 208 of 2012 prayed with the following prayers: "It is, therefore, respectfully prayed that the impugned order dated 8-3-2012 may kindly be set aside and the Appeal preferred by the respondent may kindly be ordered to be dismissed in the interest of justice equity and fair play."

3. Brief facts of the above petitions are as under: C.P No.154 of 2012: The petitioners through advertisement invited applications for the post of different categories on the basis of son quota of QESCO employees. The respondent No. 1 Muhammad Iqbal son of Abdul Samad was applied for the post of Assistant Line man and after observing all coddle formalities, he was appointed as Line man on contract bases for a period of one year vide order dated 24.08.2010 under the terms and conditions as mentioned in the appointment letter clause 2 (q); that the employment order binding upon the appointee to furnish an affidavit on non-judicial stamp paper to the effect that none of his brother/sister is working in QESCO/WAPDA and in case of any incorrect undertaking his appointment will be liable for termination. It is further submitted that after joining report the respondent No.1 was failed to furnish the requisite affidavit, however, thereafter it was revealed that one of his brother namely Mr. Muhammad Khan is already serving in QESCO as he was appointed on 19.06.1999 consequently for concealing of this fact the services of respondent No.1 was cancelled in the light of clause 2 (q) of appointment letter dated 14.05.2011. C.P No.155 of 2012. On the basis of same advertisement as stated above the respondent No.1 Zahid Khan son of Faqir Muhammad was applied and appointed on the basis of son quota as Assistant Line man vide order dated 24.08.2010 on the same terms and condition as stated above. He was also failed to furnish requisite information, however, thereafter it was came on record that one of his brother namely Muhammad Ibrahim is already serving in QESCO and he was appointed vide order dated 20.06.1987 resultantly for concealing of the fact the appointment of respondent No.1 was cancelled vide order dated 14.05.2011. C.P No.156 of 2012. On the basis of said advertisement the respondent No.1 Abdul Khaliq son of Abdul Qadir applied and appointed as Assistant Line man vide order dated 28.08.2010 on failure of submission of affidavit and requisite information with regard to the employment of his brother/sister subsequently it was revealed that one of his brother namely Dad Muhammad is already serving in QESCO and he was appointed vide order dated 22.03.2007, for concealment of the above fact as required under clause 2(q) of appointment letter, the appointment of respondent No.1 was cancelled vide order dated 14.05.2011. C.P No.207 of 2012. The respondent No.1 Imdad Ali son of Ghulam Nabi applied on the basis of son quota and he was appointed as Assistant Line man vide order dated 24.08.2010 and failed to furnish requisite information with regard to service of his brother (no name was mentioned in the petition), however, it is mentioned that his brother was appointed in the year 2003, as such, for concealment of such fact the appointment of respondent No.1 was cancelled vide order dated 14.05.2011. C.P No.208 of 2012. On the basis of Said advertisement the respondent No.1 Abdul Manan son of Abdul Qadir applied for the post of Assistant Line man on son quota basis and he was appointed on the said post vide order dated 24.08.2010 on the same terms and condition as contemplated under clause 2(q) of appointment letter he was failed to furnish information with regard to appointment of his blood relative, subsequently his appointment was cancelled vide order dated 13.10.2010. It is worth to mention here that in all above cases the respondent No.1 have filed departmental representation allowed by grievance petition under section 41 BIRA, 2010 before learned 1st Labour Court, Quetta. The grievance petitions in C.Ps. Nos. 154, 155, 156 and 207 of 2012 were allowed by the learned 1st Labourt Court, Quetta, whereby the order of cancellation of their appointments were set aside and their services were restored, however, in C.P. No. 208 of 2012 the grievance petition under section 41, BMA, 2010 was dismissed.

4. Being aggrieved, the present petitioners filed appeal against the judgment of Labour Court as well as the respondent in C.P. No. 208 of 2012 also filed appeal before the learned Labour Appellate Tribunal Balochistan and the learned Appellate Tribunal after hearing the parties dismissed the appeals filed by the petitioners and allowed the appeal filed by the respondent No.1 in C.P. No.208 of 2012 and restored his services in its original position. Hence, the petitioners assailed all the impugned judgments before this Court.

5. The learned counsel for the petitioners contended that the judgments passed by the Courts below suffers from misreading and non-reading of evidence and mis-appreciation of law; that the advertisement appeared in the daily newspapers categorically mentioned the posts are reserved for son quota of the QESCO employees with the condition that each and every qualified candidates must have to furnish affidavit with regard to his brother/sister being already in service of the company; that the said condition was also incorporated under clause 2(q) of appointment letter of each and every employee as penalty clause, but the private respondents have failed to furnish requisite information to the company, however, on thorough probe into the matter it was revealed that the brothers of each employee (private respondents) are already in service of the company, but this fact was concealed by the private respondents, consequent whereof, their appointment letters were cancelled; that both the Courts below have failed to consider this important aspect of the case and comes to a wrong conclusion which has resulted grave miscarriage of justice with the petitioners; that the impugned judgments of Courts below also suffers from material illegalities and irregularities, which are not sustainable and liable to be set aside.

6. Conversely, the learned counsel for private respondents have vehemently opposed the contention so raised by the learned counsel for the petitioners and contends that the petitioners were appointed purely on the basis of merits and their appointments were subsequently cancelled on the pressure and connivance of the Union and nothing was brought on record that according to rules and regulations, the appointments of the respondents could be cancelled on the basis of such vague illegal policy being managed by the management and the office bearers of the Union; that the respondents have applied being qualified candidates and their appointments were made after observing all coddle formalities and they have also rendered their services to the entire satisfaction of the company and no complaint against the respondents was arises during the course of their service and half and suddenly cancellation of their appointment were based on mala fide and ulterior motive of the petitioners; that the petitioners have properly filed representations followed by grievance petitions under BIRA, 2010 before the learned Labour Court and both the Courts below after proper appreciation of evidence had rightly allowed the grievance petitions of the respondents and restored their services; that concurrent findings of the Courts below does not warrant interference by this Court.

7. We have heard the learned counsel for the parties and perused the record minutely, which reveals that petitioners invited applications for the post of Assistant Line man on the basis of son quota through advertisement in daily newspapers, in pursuance whereof the private respondents have applied against the said posts and after observing all coddle formalities and after thorough scrutiny the selection committee had recommended the respondents for appointment on the said posts; the record further reveals that on the recommendations of selection committee based on proper verification of the candidature of the private respondents, the competent authority had approved their appointments and accordingly they have been appointed on the said posts and joined their duties, during the course of their service nothing was brought on surface that they have concealed any required information from the company, however, a letter of Pakistan WAPDA Hydro Electric Central Labour Union (CDA) dated 10-01-2011 appearing on record, which was issued by the Provincial Chairman and General Secretary of the Union addressed to the Chief Executive Office, Quetta for convenience the aforesaid letter is reproduced as under:--

8. It is pertinent to mention here that neither the above letter of Union is covered under any statuary law, rules and regulations nor described any particular with regard to any of the private respondents or their relatives that they are in service of the company, the said letter is vague in nature just to blackmail the management and by the garb of so called policy to pick and choose the appointments of their own wish and will even there is no charter of demand available on record to ascertain that the said policy was agreed/settled between the Union and the Employer for the welfare of the workers of the company. If the same be that even then the same does not cover under any statutory law and would be void ab initio and ultra vires of law. The record further transpired that in all cases the affidavits of the private respondents are very much available, wherein it was categorically mentioned that their brothers were appointed in different period much prior to the appointment of the private respondents purely on the basis of merit instead of any son quota and this fact was also nowhere denied by the petitioners that the appointment of their brothers was not made on merits.

9. The petitioners mainly stressed on clause 2 (q) of the appointment letter for convenience the clause 2 (q) of appointment letter is reproduced as under: "He will also be required to furnish an affidavit on non judicial stamp paper that the re is no other brother/sister working under QESCO/WAPDA and in case there undertaking is found incorrect at later stage then their services will be liable for termination." The above condition was admittedly inserted by the management on the pressure of Union as transpired from above quoted letter of Union, neither the said condition was appeared in the advertisement nor covered under any statuary law, which is ultra vires of law/ constitution and act of officials/petitioners found in excess of jurisdiction and tainted with mala fide. Hence excessive use of lawful powers is itself unlawful as held by the Hon'ble Apex Court in the case of "Independent Newspaper v. Chairman for the wage Board, 1993 SCMR 1533".

10. Besides, the evidence so brought on record and the representative of the petitioners so appeared in the trial Court in cross-examination has categorically admitted that in C.P. No. 154/2012: Likewise in C.P. No.155/2012 it was admitted in cross-examination by the representative of the petitioners that: In C.P. No.156/2012 it admitted deposed by the representative of the petitioners: In C.P No.207/2012 it was observed by the learned appellate Court that the respondent No.3 Tariq lqbal submitted his affidavit, wherein he acknowledged that he has no relationship with respondent Imdad Ali son of Ghulam Nabi and also submitted photocopies of ID card of his own and his father. In C.P. No.208/2012 It was also observed by the learned appellate Tribunal that the Superintending Engineer/Executive Engineer certified and verified that Mr. Abdul Qadir father of Abdul Manan (respondent No.1) was/ is benefited WAPDA employee and he has not already availed the employees son quota. In the light of all above factual position observed by the learned Courts below the petitioners have failed to made out a case for interference by this Court in constitutional jurisdiction. The judgments passed by the Courts below are based on sound reasoning. It reveals that after properly appreciating the evidence available on record, both the Courts below have rightly declared the cancellation orders of the appointments of the respondents as null and void. For the reasons discussed hereinabove, we see no merit in all the constitutional petitions to warrant interference in the concurrent findings of the Courts below. The petitions are dismissed with no order as to costs. HBT/58/Bal. Petitions dismissed.