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Appeal No. MN‑169 of 1984, decided on 20th October, 1985.
‑‑Railway employee‑‑Confirmation‑‑Claim for confirmation cannot be made unless it is proved that vacancy became permanent‑‑Petitioner appointed to officiate in a vacancy caused due to transfer of incumbent else where‑‑No proof that transferee confirmed elsewhere‑‑Statement during arguments before Labour Court that transferee had since retired‑‑Such statement not admitted‑‑Acceptance of such statement made during arguments likely to cause miscarriage of justice‑‑No proof that petitioner was senior most‑‑Order of Labour Court accepting grievance petition with direction for confirmation of petitioner, in circumstances, modified by Appellate Tribunal that petitioner be confirmed if he was senior most and vacancy became permanent‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A, 38(3).
Gulzar Ahmad Alvi for Appellant.
Ch. Nazir Hussain for Respondent.
Date of hearing: 13th October, 1985.
The decision dated 11‑3‑1984 passed by the learned Presiding Officer, Punjab Labour Court No. 9 Multan has been challenged, whereby the respondent was directed to be confirmed as Deputy Chief Controller.
2. The respondent was appointed with effect from 23‑4‑1981 vide order Exh.R‑4. It has been argued by the learned counsel for the appellant that the vacancy was not permanent, therefore, the respondent could not be directed to be confirmed. The respondent was made to officiate as Deputy Chief Controller in the vacancy of Mr. M.M. Rizvi who was transferred to Rawalpindi Division. It is not made clear either in Exh.P.3 or any other document produced in the case as to what post Mr. Rizvi was holding in Rawalpindi Division after being transferred. This is also not known if the post and vacancy in which he was posted was permanent. If the vacancy or the post is temporary, Mr. Rizvi retained his lien on the post of Chief Controller and likewise Mr. Asif in whose vacancy the respondent was made to officiate retained his lien. In Exh.P.4 it is clearly mentioned that the promotion in officiating capacity would not confer any right upon the respondent to claim regular promotion. Needless to say that unless it is proved that the vacancy has become permanent, no one can claim any right of confirmation upon it. The learned lower Court has in its judgment recorded that the respondent during arguments said that Mr. Rizvi, who was transferred, has retired from service. The respondent did not say so when he was in the witness‑box. The learned counsel representing the appellant in lower Court was confronted with this surprising situation. He was not afforded opportunity to get instructions on the point before hand. So if he at the spur of the moment did not controvert what the respondent had urged during arguments, it did not mean that actually the vacancy had become permanent. Such a statements made during arguments cannot be accepted unless they are admitted by the adverse party. Acceptance of such statement made during arguments are likely to cause miscarriage of justice.
3. However, this part of the statement of the respondent made on With before the learned lower Court stands un controverted that the post of Deputy Chief Controller was not a selection post. No witness was examined and no document has been pointed out by the learned counsel for the appellant which may have controverted this part of the statement of the respondent.
4. It has been argued that the respondent is not the senior most so could not claim confirmation. In the written statement no question of seniority was raised, nor any list of seniority has been pointed out on the file. An application has been given on behalf of some employees for being impleaded as party. It is claimed in the said miscellaneous application that they are senior to the respondent. Now it is too late to make such an application in labour cases at the appellate stage. Proper time was when the case was still pending before the learned lower Court. Since it has been claimed that some persons are senior to the respondent, so the direction of confirming the respondent should be conditional.
5. As a result of the observations made above, I partly accept the appeal and modifying the impugned decision of the learned lower Court, direct that the respondent may be confirmed if the vacancy has become permanent and he is the senior most.
A. E. Appeal partly accepted.
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