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‑‑‑ S. 36‑B read with S. 25‑A‑Provisions of C. P. C. do not apply to proceedings before ;Junior Labour Court‑Such Court not required to frame any issues‑Framing of points by Presiding Officer for deter mination of dispute between parties‑Held, does not amount to fram ing of issues‑Civil Procedure Code (V of 1908), O. XIV.

‑‑ S. O. 13‑Retrenchment of workman juniormost in his category Provisions of S. O. 13 explicit which cannot be ignored or overridden Retrenchment of workman juniormost among persons employed in same section of establishment‑Held, unexceptionable.

‑‑ Art. 199‑Writ jurisdiction‑Finding of fact shown to be contrary to established facts on record or based oft misreading of facts Held, can always be disturbed in constitutional jurisdiction.‑[Writ].

In all cases where there is a finding of fact which is shown to be, prima facie, contrary to the established facts on record or is based on misread ing of facts it can always be disturbed in the constitutional jurisdiction of the High Court. This is such a settled view that it hardly needs any authority.

Yousuf Rafi for Appellant.

M. Sharif Khattak for Respondent No. 1.

Date of hearing : 12th April 1976.

This is a petition brought under Article 199 of the Constitution directed against the Orders of the Junior Labour Court as well as Labour Court, Karachi, directing the petitioners to re‑instate the respondent No. 3 as Security Inspector.

The admitted facts are that respondent No. 3 Subedar Fazlur Rehman was appointed as Security Inspector in the Watch and Ward Department of the petitioners' factory with effect from 1st January, 1973. On 4‑2‑1975 the respondent was served with a notice Annexure 'B indicating that as a measure of economy and re‑organisation of the Security Department it was decided to abolish the post of security inspector and, therefore, his services were no longer required. He was retrenched with effect from the same date and was offered one month's salary in lieu of notice. This notice was challenged through an application before the Junior Labour Court filed on some date in February, 1975 and the ground taken was that ‑the action of termination of service was mala fide, being without any reason, made on the so‑called pretext of re‑organisation. This application was contested and the reply statement was duly filed on 17‑2‑1975. The respondent as well as the representative of the petitioner were cross‑examined by the respective counsel for the parties. The Junior Labour Court while deciding the matter between the parties arrived at the following points for determination in the matter :‑

(1) Whether the applicant was a worker/workman

(2) Whether the applicant was the junior most worker in the respondents' factory

(3) Whether the applicant is entitled to re‑instatement

The learned Presiding Officer of the Junior Labour Court came to the conclusion that respondent Fazlur Rehman was a worker in terms of Standing Order 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As regards the second point the learned Presiding Officer, while basing his findings on the statement of the represen tative of the petitioners in cross‑examination that the 'applicant (respondent No. 3) was doing general work of general nature, came to the conclusion that respondent No. 3 was a general worker and as there were admittedly other general workers appointed after him, therefore he was not the junior most worker. Proceeding on this assumption it was held that the termination of respondent No. 3 was justified on the principle of 'first come last go'. The result was that his termination was set aside.

The petitioners appealed against this order before the Vth Labour Court, Karachi. The learned Presiding Officer of the Labour Court, confirmed the findings of the Junior Labour Court in as much as that respondent No. 3 was found to be worker of general nature and not being the junior most among them it was held that his retrenchment was 'improper and against the natural justice.' The result was that the appeal was dismissed.

Mr. Rafi for the petitioners contends that while arriving at this finding the Courts below have completely ignored the provisions of Standing Order 13 which declares that retrenchement, though to be made on the principle of 'last come first go', it is to be made category‑wise. It would be convenient to reproduce the Standing Order No. 13 here :‑ .

"Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category."

The learned counsel contends that the main reason behind this provision is that when an establishment wants to retrench a number of workers such retrenchment will be of the juniormost workers working in a particular category of workmen such as fitters, electricians, lathemen and personnel of watch and ward. The reason is obvious because in case the establishment wants to reduce the workers among the lathemen and the juniormost man in the whole establishment may be from the category of fitters and if the fitters were to be retrenched in such a situation it would work against the interest of the establishment.

In reply to this contention of the learned counsel Mr. Khatak contends that the ground of categorisation has been taken for the first time and, therefore, cannot be allowed to be agitated at this stage. In support of this contention he has drawn by attention to the reply statement riled by the petitioners before the Junior Labour Court wherein, according to Mr. Khatak, it is nowhere asserted if respondent No. 3 was the juniormost is a particular category. Secondly it is contended by the learned counsel that there were issues framed by tire Junior Labour Court which were so framed with the consent of the parties and as issue No. 2 does not speak of a category of the watch and ward department, therefore, it should be presumed that the petitioner had consented to deal with the worker as belonging to the general category of workers. Lastly, it is contended that the finding of the two Courts below that respondent No. 1 belonged to the general category of workers is a finding of fact and, therefore, cannot be disturbed by this Court in its constitutional Jurisdiction. In this respect he relies upon P L D 1973 Lah. 230 and P L D 1972 Lah. 262.

Dealing with the contentions raised by Mr. Kbatak I would say that in para. 3 of the reply statement the petitioner had clearly stated as follows:‑

"As regards para. 3, the allegations therein are irrelevant as his job became redundant as a measure of economy and re‑organisation effected by the respondent. The job of the Security Inspector was abolished and he being the only Security Inspector his services were terminated."

By taking this stand the petitioners had narrowed down the category to which respondent No. I belonged to that of Security Inspector, not to speak of the larger category of watch and ward. Again in para. 5 of the reply statement an undertaking is given that in case the post of security inspector is revived within a year, as stipulated by Standing Order 14, it will be offered to respondent No. 1. It is, therefore, not correct to contend that no plea was taken as regards the specific category to which the respondent No. I belonged.

As regards the consent issues I may say that there is nothing on record to indicate that any issues were framed by the Junior Labour Court. In actual fact Civil Procedure Code does not apply to the proceedings before the Junior Labour Court and, therefore, such Court is not required to frame any issues. In any case the reference made by the learned counsel for the A respondent to issues is in fact to the points framed by the Presiding Officer for the determination of the dispute between the parties. That does not amount to the framing of issues and, therefore, the contention of having framed such issues with consent is completely misconceived.

But in any case even if there was no plea raised regarding the categorisa tion of workers to which respondent No. 1 belonged to or even if there were certain issues which did not take into account such categories, that would not have the effect of overriding the provisions of Standing Order 13. The provisions are quite explicit, and, therefore, could not be ignored. This Standing Order envisages different categories of workers within one single establishment. This is for obvious reasons, specially when workers are required to have specialised knowledge in a particular field, or to have a certain skill for performance of their jobs. In such cases the wisdom of applying the priniciple of 'last come first go' in terms of categeries is quite obvious. This is because if an establishment employs fitter and lathemen and due to some reasons retrenchment is to be effected as far as fitters are con cerned, it cannot be required to retrench a latheman only because he was the last to be employed in that establishment. In such a situation the employer would be acting perfectly within the bounds of law if he retrenches a fitter who was the juniormost in the category of fitters.

As regards the question of findings of fact I am unable to agree with the learned counsel for the respondent. In all cases where there is a finding of fact which is shown to be, prima facie, contrary to the established facts on record or is based on misreading of facts it can always be disturbed in the constitutional jurisdiction of this Court. This is such a settled view that it hardly needs any authority. In the present case that learned Presiding Officer of the Junior Labour Court had torne, out of context, a sentence that the respondent was doing general work of general nature and made this statement the basis for arriving at a conclusion that there was a category of general workers to which everybody employed in the factory belonged and because it was admitted that the respondent was also doing the work of general nature, therefore, be also belonged to that category. In the first place an establishment of specialised nature, such as the petitioners are, who are manufacturing tyres and tubes for cycles and batteries for the motor cars, there have to be variety of jobs being done in their factory and each type of job would require a specialised category of workers skilled in their own field. It, therefore, cannot be presumed that such factory would be employing only one general category of workers to man all sorts of jobs. Secondly this statement itself has to be read in the context in which it has been made. It would be relevant to quote here the relevant portion of the statement in this regard

"The applicant Subedar Falzur Rehman was the Security Inspector in the respondent establishment. His duties were to check the inward material. He also used to accompany the material brought to and from our Keamari godown. There are four Security Supervisors. The applicant was doing general work of general nature."

This statement clearly indicates that Subedar Fazlur Rehman belonged to the Watch and Ward Department and his duties were those of security. In the same context he was required to do certain work of general nature but that also would be with respect to the duties of watch and ward and nothing else. It was, therefore wrong inference on the part of the Courts below, based on a clear misreading of evidence that he was a general worker, which cannot be sustained.

In this context the learned counsel for the petitioner has drawn my attention to para. 2 of the petition wherein specific functions of the watch and ward section have been detailed. In this para it is contended that this section looks after the security needs and requirements of the entire undertaking. Then the following specific functions are enumerated

"(i) Checking of materials received and goods sent out of the factory.

(ii) Supervision of watch and ward arrangements and checking at the time of factory closing.

(iii) Supervision of chowkidars' performance at the time of opening and closing of the Factory shifts.

(iv) Accompanying material brought from Karachi Godown and super vising its loading and unloading.

(v) General duties of general nature regarding Security."

These contentions in the petition have not been controverted by the respondent and, therefore, will be deemed to have been duly established.

It is also noteworthy that it was not the case of the respondent, at any stage before the Courts below, or before this Court, that Fazlur Rehman was a worker doing job of a general nature. On the other hand, the specific contention was that he was employed as Security Inspector, which by its very designation implies that it is a job of specialised nature, belonging to a category of its own.

Another contention raised by the petitioners is that if the respondent No. 1 was considered to be belonging to the broader category of security staff he was the juniormost among the persons employed in that section. Other persons employed were

"Khair Gul 6‑4‑1953.

Abdul Ghafoor 13‑7‑1970.

T. H. Shah 14‑11‑1970.

Amir Dad 28‑11‑1970."

As against them the respondent No. 1 was employed on 1‑1‑1973. It is contended that if he was put in that category alongwith them he was the o juniormost and, therefore, his retrenchment was unexceptionable in view of the provisions of Standing Order 13. Mr. Khatak had nothing to controvert this contention.

For the foregoing reasons I would accept the petition and would declare that the orders of the Junior Labour Court as well as of the Labour Court were without lawful authority, having no legal effect. I would however, leave the parties to bear their own respective costs.

S. Q. Petition accepted.

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