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Appeal No.. KAR‑18 of 1982, heard on 1st November, 1982.

West Pakistan

‑‑ S. Os. 13 & 14‑A‑Retrenchment‑"First in last go"‑Rule of Limited to some establishments or projects‑Cannot be stretched to other establishments or projects being run by same employer even if employer is a construction company or construction contractor- Preferential right to a construction worker retrenched from another project to a similar project of same employer available only when a vacancy for job for which such retrenched worker found suitable exists in other project and not by displacing another existing worker though junior to him or appointed later on.

Syed Qamaruddin Hassan for Appellants.

Ch. Rasheed Ahmed for Respondent.

Date of hearing: Ist November, 1982.

DECISION

This appeal is directed against the decision of the learned Fifth Labour Court, given on 16th December, 1981, allowing the grievance petition of the respondent employee against the termination of his services, and directing the appellants to re‑instate him in service with full back benefits.

2. The respondent, who was employed as a draftsman since 8th July, 1976 in the Juna Bandar Joint Venture, was retrenched from service vide order, dated 13th October, 1980, on the ground that he has been rendered surplus on account of the fact that the job on which he was working had been completed. Earlier, the respondent, vide his application, dated 13th September, 1980, had requested for promotion to Grade V but his request was rejected as intimated to him vide letter, dated 7th October, 1980. Aggrieved by the retrenchment of his services, the respondent filed a grievance petition before the learned Fifth Labour Court. The grievance petition of the respondent has been allowed by the learned Labour Court on two main grounds :‑

(a) that the retrenchment from service of the respondent was mala de as he was the sole person singled out for retrenchment an no other person was retrenched in the months of October, November and December, 1980 ; and

(b) that one Mr. Latif was appointed by the Joint Venture to perform the same duties as were being performed by the respondent employee, but with a different designation.

3. Mr. Syed Qamaruddin Hassan, the learned counsel for the appel lants, has submitted that the learned Labour Court has completely misconstrued the real position that was prevailing is the Joint Venture during the periods proceeding and after the retrenchment front service of the respondent. fie referred td the notices front pages 169 to 193 of the record of ,the learned labour Court, through, which a large number of employees had ,been retrench from service during the period from 10th January, 1980 to 31st March, 980. The learned ,counsel submitted that the appellants were engaged in a construction job arid as add when a particular position of the construction job was completed the staff engaged thereon was discharged if their services were no more required. The documents from pages 160 td 183 of the record appear to support the contention of the learned counsel. The notices from pages 177 to 183 of the record are respectively dated 21st January, 1980, 12th January, 1980, 10th January, 1980 and 31st January, 1981. By the notice, dated 21st January, 1980, as many as 28 employees were retrenched on the ground that the job for which they had been employed had been completed. Similarly by the notice, dated 12th January, 1980, 19 workmen were retrenched from service on the same ground. Again by the notice, dated 10th January, 1980, 22 employees were retrenched on similar ground. Finally by the notice, dated 31st January, 1980, 31 employees were retrenched from service on the identical ground. Similarly, by the notices respectively dated 15th January, 1981, 18th January, 1981, 28th February, 1981 and 31st March, 1981 a fairly large number of employees were retren ched on the ground that the work for which they had been engaged had been completed. 1t thus appears that from January, 1980, the process of retrench ment and demobilisation of the staff of the Juna Bandar Joint Venture was in progress. It was, however, argued by Mr. Ch. Rasheed Ahmed, the learned counsel for the respondent employee, that right from February, 1980 upto the end of December, 1980, no other employee of the Joint Venture save the respondent, was retrenched and the manner to which the respondent was retrenched indicates that the retrenchment was motivated by rnala fides. The learned counsel urged two grounds in support of his contention. The first is that the respondent had requested for promotion but this was turned down only ‑ six days before he was retrenched from service and it appears that this request on the part of the respondent had antagonised the admi nistration against him. 1 regret that 1 see no force in this ground. As already indicated the process of retrenchment had started as early as in January, 1980. This means that substantial part of the Joint ‑ Venture had been completed by the time the respondent's services were terminated. In those circumstances, it would be unreasonable to expect the Joint Venture to grant a promotion to the respondent. In any case mala fides cannot be rightly presumed in the circumstances of the case.

4. The second ground on which Mr. Ch. Rasheed Ahmed has assailed the order terminating the services of the respondent was that the work for which the respondent was engaged was very much there when the services of the respondent were terminated and in fact the appellants had engaged one Latif to do this work. In support of this contention he relied upon the admissions made by Sarwar Kamal Siddiqui, Industrial Relations Officer, of the appellants, to the effect that five drawings had been prepared by Latif and one Qamar Imam after the services of the respondent had been terminated. From the mere fact, however, that Latif had prepared certain drawings in conjunction with Qamar Imam after the services of the respon dent had been terminated, no presumption can be drawn that Latif had been employee in the place of the respondent or that he was required to do the work which previously was being performed by the respondent. As already pointed out the respondent had been employed as a draftsman and was in Grade IV. He had requested for promotion to Grade V but this request was rejected. On the other hand, A. Latif was appoint ed as planning Engineer in Grade IV (on a consolidated salary of Rs. 2.000 P. M.) vide order, dated Ist October, 1980. His appointment was 13 days prior to the termination of services of the respondent. It is in the evidence of Sarwar Kamal Siddiqui that A. Latif, who was a qualified Engineer, was appointed merely for the purposes of demobilization. As already indicated the first phase of retrenchment was carried out in the early part of 1980 and the second phase was carried out from January, 1981 to March, 1981 after. the appointment of A. Latif. The second phase of retrenchment would, thus, seem to support the stand of the appellants that A. Latif was employed for the purposes of demobilization of the staff. However, since he was qualified Engineer and was available it seems that h,‑ was also asked to prepare some drawings in conjunction with Qamar Imam. The per formance of this work, however, would not make him a draftsman nor can it lead to the inference that he was appointed in place of the respondent employee.

5. It was next urged by Mr. Ch. Rasheed Ahmad that even if the services of the respondent had been rightly retrenched from the project in which he was employed admittedly the appellants were engaged in another construction project at the relevant time. namely the Bridge Venture, in which the respondent employee should have been accommodated. In support of his contention the learned counsel relied upon the provisions of Standing Order 14‑A, which reads as follows :‑

14‑A. Special provision for construction workers.‑Where any work man is retrenched or discharged by a contractor or any employer engaged in the construction industry due to completion, cessation or discontinuance of work, lye shall be given preference for employment in any other similar work undertaken by the contractor or employer within a period of one year from the date of such retrenchment or discharge:

Provided that where a workman is re‑employed within one month of his retrenchment or discharge, he shall be deemed to have been in con tinuous service of the contractor or employer notwithstanding the interruption caused by his retrenchment or discharge but no wages shall be paid to him for the period of interruption."

Witness Muhammad Amjad Siddiqui, who has been employed in the Joint Venture since 1976 and was first Incharge of the Bridge Venture and sub sequently placed Incharge of the Juna Bandar Joint Venture Project, was examined as a witness before this Tribunal on the joint request of the learn ed counsel for the parties. He has stated that on 13th October, 1980 both the Juna Bandar project as well as the Bridge project were going on and the work in both projects was in progress. He has further stated that in the Bridge project one Khalil Ahmed was employed as draftsman on 14th January, 1980 and that he continued to work as draftsman in the Bridge project up to 28th January‑ 1982, when he resigned whereafter no other draftsman was appointed since the draftsman s work had been completed. The question that arises for consideration is whether the respondent had a pre ferential right to appointment in the‑ Bridge project over Khalil Ahmed who; was already working there as a draftsman. The rule of "first in last out" embodied in Standing Order 13, appears to be limited to the same establishment or project but. I am doubtful that it can be stretched to other establishments or projects, which are being run by the same employer, even if the em ployer is a construction company or construction contractor as in the instant case. I construe the provisions of Standing Order' 14‑A as giving a preferential right to a construction worker, who has been retrenched from another project, to a similar project undertaken by the same employer, provided that a vacancy for a job for which such workman is found suitable, exists in the latter project and not that he should displace another worker who might be junior to him or appointed later on. If my understanding of Standing Order 14‑A is correct the respondent cannot be deemed to be entitled to have been appointed in the Bridge Project by displacing draftsman Khalil Ahmed.

6. It was lastly argued by Mr. Ch. Rasheed Ahmed that the appeal is incompetent as it has been filed only by the National Construction Company and not by the Juna Bandar Joint Venture, which consists of two parties in association with each other, namely the National Construction Company and Christiani & Nielsen A/S, as pointed out by the Division Bench of the Karachi High Court in the case reported as Juna Bandar Joint Venture, Karachi v. Board of Trustees of Port of Karachi (P L D 1982 Kar.13),:‑ In that case an application made by one party to the Joint Venture was considered not be an application on behalf of the Juna Bandar Joint Venture since the other party to the Joint Venture had not signed the application. In the instant case the grievance petition itself was filed against M/s. National Construction Co. (Pakistan) Ltd., Juna Bandar Joint Venture, K. P. T. Gate No. 37, Karachi. The title of the respondents (appellants herein), is misleading but it appears that M/s. Surridge & Beecheno, Advocates & Solicitors, were engaged by Sarwar Kamal Siddiqui on behalf of the Jun# Bandar Joint Venture project. Thus the grievance petition was defended on behalf of the Juna Bandar Joint Venture. As regards the appeal, it has been filed by the same party which defended the grievance petition and which was cited as the respondent in the grievance petition namely National Construction Co. (Pakistan) Ltd. (J. J. V.). The initials stand for Juna Bandar Joint Venture. The appeal. thus, appears to be competent.

7. For the reasons discussed by me above, I would set aside the order of the learned Labour Court and would allow the appeal.

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