1989 PLP 886 (PLC(CS))

Ch. Muhammad Ikram for Appellants. Nemo‑for Respondent No.

1. Malik Muhammad Suleman Respondents Nos. 2 to

4. Date of hearing: 13th December, 1987. The three appeals captioned above emerge from the decisions dated 12‑9‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby the grievance petitions of Bashir Ahmad, Mehr Din and Ghulam Jehanian, respondents, were accepted and setting aside the orders, whereby the appellants were appointed against permanent vacancies, direction was issued to appoint the formers. Since same legal question is involved in all the three appeals, they are being disposed of together through this single judgment.

2. None appeared for the management in spite of notice, therefore, it has been proceeded against ex parte. In the circumstance the word `respondents' wherever used in the judgment, would not include the management.

3. The facts are that the appellants and the respondents were seasonal workers and on the close of the season they were retrenched. The posts of time keeper, assistant centrifugal and clerk became permanent and the employer appointed against those vacancies Rana Javed Islam, Haji Ahmad and Rana Abdul Rehman, respectively. Bashir Ahmad brought grievance petition against Rana Javed Islam; Mehr Din brought grievance petition against Haji Ahmad and Ghulam Jehanian brought grievance petition against Rana Abdul Rehman claiming that they, being senior to their opponents, had a prior right to be appointed against permanent vacancies. The learned lower Court has relied upon office order dated 8‑3‑1986, which reads as under:‑‑ "All the promotions in permanent cases of the workers whether as a result of agreement with the Union (C.B.A.) or otherwise shall be decided purely on seniority, efficiency and fitness basis. This principle should be adhered to strictly while promoting and making the workers permanent." The letter has been wrongly applied. It relates to promotions and making the workers already in service permanent on the posts held by them. It is not mentioned therein that the new appointments cannot be made against permanent posts. The question of making a worker permanent means making him permanent on the post held by him temporarily. It does not mean that a worker can be made permanent or appointed permanently against a post which he was not holding at the time the question of filling in the vacancy arose. As mentioned above, the appellants and the respondents were seasonal workers and on the close of the previous season had been retrenched. They had a right to be recalled on the restart of the factory in the new season. They thus were not in service at the time the above mentioned posts were made permanent. Before the question of their recalling on the post from which they were retrenched could arise the posts, mentioned above, were made permanent. The learned counsel for the respondents has argued that Bashir Ahmad, Mehr Din and Ghulam Jehanian had been holding previously the posts of time‑keeper, assistant centrifugal and clerk respectively before the said posts had been made permanent, therefore, they had a right to be appointed against those posts when the said posts had become permanent. He has also argued that since the said respondents were admittedly senior to the appellants, they had a prior right. 1n this respect he relics upon Standing Order 14 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. There is no dispute about it that the above mentioned respondents had been holding the posts mentioned above previously when the said posts were temporary but in spate of it they had no right upon the posts. If they had been holding the said posts at the time the posts were made permanent, of course they would have a right to be considered for the same. But admittedly they were retrenched on the close of the previous season. Standing Order 14 also does not help, the respondents. Learned counsel for the respondents has made reference to the said Standing Order, but, according to the facts of the case, the provisos are attracted and they are not helpful to the respondents. Standing Order 14 relates to re‑employment of regular retrenched workers and not workers employed in a seasonal factory. Under proviso No. 1 a seasonal worker who has been retrenched on account of the close of the season has a right to report for duty within ten days of the resumption of work in the factory. Proviso No. 2 provides that the employer may send notice by registered post to a retrenched seasonal worker to report on duty on a day not earlier than ten days before the resumption of work and that if the said worker reports on duty, he is to be given preference for employment. According to these provisos, the retrenched' seasonal worker has a right of re‑employment on the post from which he was retrenched and there is no provision that he has any right on any other post temporary or permanent, whereas in the present case the posts from which the respondents were retrenched on the close of the previous season had not been made permanent, but different posts were given the character of permanency. The mere fact that on some occasion previously the respondents had been holding the posts which afterwards had been made permanent, they had no right over these posts. Of course, as mentioned above, if they had been holding the said Cposts at the time they were given permanent character, they could claim right over them. The employer was thus free to fill in the permanent posts by fresh B appointment according to his own choice and free will. The employer, therefore, rightly appointed the appellants as time‑keeper, assistant centrifugal and clerk, respectively. Learned counsel for the respondents has cited 1980 L L C 411 but it too is not helpful. The said case related to P.I.A. Obviously P.IA. is neither a factory and much less a seasonal factory.

4. As a result, all the three appeals are accepted' and setting aside the impugned decisions of the learned lower Court, the appellants are‑ directed to be ‑restored to the posts of time‑keeper, assistant centrifugal and clerk, respectively. Since the employer passed the correct orders and the learned lower Court erred in setting aside those orders, the employer cannot be burdened with back benefits. As a further result, the grievance petitions of the respondents stand a dismissed. A.E./488/Lb. P Appeals accepted.