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Appeal No. LHR‑134 of 1981, decided on 18th January, 1983.

‑‑ Retrenchment‑Services terminated on account of retrenchment- Vacancy becoming available during pendency of grievance petition before Labour Court but filled in by promotion of a junior person‑Ousted workman, in circumstances, held, should have been recalled instead of promotion from lower post‑Reinstatement for date of occurrence of vacancy, in circumstances, awarded by Labour Appellate ‑ Tribunal ‑ Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 37.

Yousaf Hussain Dilawari for Appellant.

Muhammad Saleem Khan for Respondent.

Date of hearing : 15th January, 1983.

This appeal arises from the decision, dated 7th March, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. The appellant's services were terminated on account of retrench ment. He challenged the order of termination on the ground that Akbar Ali Shah, Director Finance, having been appointed by the Govern ment and not by the P. R. T. B. was not competent to terminate his services and that on account of retirement of Muhammad Sadiq, his post was available for him.

3. There is no evidence regarding the retirement of Muhammad Sadiq. Even in the application the appellants has not given the date of his retirement or his going on L. P. R. Evidence was produced that one Muhammad Boota was dismissed, so his post was available for him. This fact was admitted by R. W. 1. The letter also admitted, that one Muhammad Akram was prompted. The promotion order is Exh. P. 4. He was promoted in 1980 when the appellant was holding his post on ac count of stay order. The learned lower Court has held that since the order of termination was valid, the appellant may challenge the promotion or appointment of any other person separately. Since the appellant was in service, he should have been adjusted against the permanent vacancy against which Muhammad Akram was promoted. Since Muhammad Akram was a newly promoted person, obviously he was junior to the appellant, Learned counsel for the respondent has argued that this Court has no jurisdiction to order the adjustment of the appellant against the post which fell vacant after the appellant had been terminated during the pendency of his petition. I do not find much force in it. Even if there had been no stay order, and the appellant had been out of service, on the occurring of the vacancy he should have been recalled instead of promoting a person from the lower post.

4. However, there is no force in the argument that Mr. Akbar Ali Shah had no authority to terminate the appellant. The appellant cannot attack the legality of his appointment.

5. As a result of the observations made above, I accept the appeal and direct the re‑instatement of the appellant in service from the date on which after his termination the first permanent vacancy in his cadre arose. However, the appellant is not entitled to back benefits as the order of termination was legal.

A.E.

Appeal accepted.

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