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Appeal No. SUK‑64 of 1981, heard on 17th September, 1981,

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑‑ S. O. 13‑‑Retrenchment‑‑Principle of last in first out‑‑-To be kept in view‑‑Mere fact that person junior to affected person was some time holding superior post‑Does not affect seniority in rank/grade determined on basis of date of appointment‑Petitioner a Conductor challenging his retrenchment on ground that his junior conductors were retained‑‑Pact that junior conductor held senior post some time when petitioner had been reverted from such senior post, held, would not alter his ‑seniority as Conductor determined on basis of dates of appointment‑‑Retrenchment order, in circum stances, held further violative of principle of "last in first out" hence set‑aside‑Wrongful assumption of seniority resulting in bona fide error‑Petitioner on re‑instatement, in circumstances, awarded 50% of back benefits‑Back benefits ‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 37.

Nizamuddin Baloch for Appellant.

Muhammad Ramzan Baloch for Respondent.

Date of hearing: 17^thSeptember, 1981.

The appellant, who was originally appointed as conductor, according to his grievance petition in 1968, but according to the evidence of Habibullah Mangi, the Office Superintendent of the respondents, in 1966, was promoted to the post of time‑checker. in the year 1967 and was further promoted to the post of Inspector with effect from 25th January, 1977. However, he was reverted to his original post of conductor May, 1977, and finally his services were terminated with effect from 28th January, 1980, on the ground of general retrenchment. The appellant challenged the termination of his services before the learned VIIth Labour Court at Sukkur on the main ground that at least 3 conductors junior in service to him had been retained in service contrary to the provisions of the law requiring that for purposes of retrenchment the rule of last in first out should be followed. The learned Labour Court has dismissed the appellant's grievence petition on the grouted that there is no evidence on record to establish that workmen Abdul Rauf, Manzoor and Nazeer, who the appellant claims are junior to him, are in fact junior to the appellant. The latter has accordingly come up in appeal to this Tribunal.

2. I have heard Mr. Nizamuddin Baloch, the learned counsel for the appellant, and Mr. Muhammad Ramzan Baloch, the learned Law Officer of the respondent corporation.

3. The short point which falls for consideration in this appeal is whether any workman in the grade of conductor were retained in service by the respondent corporation when the services of the appellant were terminated on 28th January, 1980. As already pointed out, it has been admitted by the Office Superintendent of the respondent corporation that the appellant was appointed as conductor in the year 1966. I specifically enquired from Mr. Muhammad Ramzan Baloch as to' when the 3 other workmen, namely, Manzoor, Nazeer Hussain and Abdul Rauf were appoint ed as conductors or to any other office in the respondent corporation. He was unable to produce any letter of appointment or document showing their respective dates of appointments, but submitted that they were appointed in the year 1968, which according to him was the year in which the appel lant was also appointed. However, the statement of Mr. Muhammad Ramzan Baloch about the year in which the appellant was appointed can not be relied upon in view of the sworn testimony of the Office Superinten dent of the respondent corporation that the appellant was appointed as conductor in the year 1966. If, therefore, the statement of Mr. Muhammad Ramzan Baloch is to be relied upon as to the year in which Manzoor, Nazeer and Abdul Rauf were appointed then the appellant would clearly be senior to them at least in the grade of conductor. There is, however, more tangible evidence to show that the appellant in fact was appointed as conductor prior to the appointment of the aforesaid 3 persons. Exh, 3‑at page 41 of the record of the learned Labour Court shows these 3 persons as junior to the appellant. The Office Superintendent of the respondent corporation. while admitting this fact, tried to explain that the aforesaid document wrongly shows the said persons as junior to the appellant. He, however, was unable to give any cogent reason from which it could be inferred that the document, Exh. 30, wrongly shows the aforesaid 3 persons as junior to the appellant. The Office Super intendent has further admitted the fact that the said 3 persons. were appointed after the date on which the appellant was appointed as conductor. This admission of his thus clearly indicates that in the grade of conductor the appellant was senior to the aforesaid 3 persons. It appears that the respondent corporation has wrongly assumed that the aforesaid 3 persons are senior. in the grade of conductors to the appellant merely because in the year 1977, the said 3 persons were holding the senior post of Inspector while the appellant was reverted to the post of conductor. The mere fact that the said 3 persons were holding superior posts at a time when the appellant was holding a junior post does not make them senior nor their appointment in the junior post earlier than that of the appellant, who clearly was appointed as conductor much before the said 3 persons. Of course if there had been a rule making the said 3 persons senior to the appellant even in the grade of conductor, the position would have been otherwise but Mr. Muhammad Ramzan Baloch was unable to refer me to any such rule of seniority in the respondent corporation. I am, therefore, satisfied that by reason of his earlier appointment as conductor, the appellant was senior in that grade to workmen Manzoor, Nazeer and Abdul Rauf despite the fact that at one time the said 3 persons had been holding posts superior to the post of the appellant. As such in terminating the service of the appellant while retaining the services of Manzoor Nazeer and Abdul Rauf, the respondent corporation clearly violated the principle of "last in first a out" which is to be followed in effecting retrenchment, as provided in Standing Order 13.

4. It was next contended by Mr. Muhammad Baloch that inasmuch as the appellant had received his full dues, he has ceased to be an aggriev ed person and consequently is not entitled to file and maintain a grievance petition. The contention of the learned counsel, however, is not well founded. No receipt indicating any acknowledgment on the part of the appellant that he had received his dues in full and final settlement has been produced by the respondent corporation. Reliance, however, was sought to be placed on the admission of the appellant before the learned Labour Court. According to that admission, the appellant was paid his gratuity and C.P.F., after the filing of his grievance petition. This indicates that the appellant was not giving up his claim against the respondent corporation and that the receipt of his gratuity and CPF amounts were subject to his other claims for wrongful termination of services against the respondent corporation.

5. For the reasons discussed by me above, I would set aside the decision of the le2rned Labour Court, allow the appeal and would direct the respondent corporation to re‑instate the appellant. Inasmuch as the respondent corporation appears to have committed a bona fide errors in wrongfully assuming that Manzoor, Nazeer and Abdul Rauf were senior to the appellant even in the rank of conductor, because they had held posts superior to that or the appellant, I would award the appellant 50% of the bask benefits. It would be open, however, for the respondent corpora tion to deduct from the back benefits of the appellant, the amounts which have been paid to the appellant as gratuity and CPF, which amounts may then be Credited the Mount of the appellant with the corporation,

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