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Appeal No. SUK-178 of 1983, heard on 21st August, 1985.

---Ss.25-A & 38(3)--Grievance petition before Labour Court-Maintainability of--Redress and relief against infringement of right guaranteed by Law--Regularisation of work-charged employees -Government Policy that work charge employee be regularised after three years continuous service--Petitioner (respondent) after requisite service regularised but subsequently regularisation order cancelled by regularising another employee junior to petitioner--Petition seeking redress and relief against cancellation order, in circumstances, held, maintainable and order of Labour Court holding cancellation order causing infringement of right of petitioner as wrong , upheld by Appellate Tribunal.

Manzar Alam for Appellants. Abidul Hameed Khan for Respondents. Date of hearing: 21st August, 1985.

The instant appeal is filed against the order of Sind Labour Court No. VII, Sukkur, dated 23-4-1983.

2. The facts are that appellants Nos. 1 and 2 passed certain orders placing the respondent, Khadim Hussain who was below, the respondent, Ali Gul. Khadim Hussain after necessary notices filed a petition under section 25-A, I.R.O. 1969. Khadim Hussain was appointed in the year 1966 as a an road-mate. During the months of September, 1967 to March, 1973, he worked on Larkana Ratedero Road which was constructed and completed. On 12-12-1973, he was promoted as Road Mistry and was posted on Sijawal Garhi Khairo Road within the jurisdiction of Highway Division No. II, Larkana. Then, again on 19-7-1974, he was transferred to Ratedero Shahdatkot Road, which was completed in January, 1976. Ali- Gul respondent was working with Khadim Hussain on the same road. The policy and practice of the Department was to regularize senior most workers but very recently the appellants Nos. 1 and 2 had started drawing a line of distinction between work charged employees working on the completed roads and on the under construction roads. The workers working on completed roads are being called M/R workers and those working on under construction roads are called contingent or work-charged establishment. Now, the case of Khadim Hussain is that the contingent staff and M/R Workers actually belonged to one and the same category and are transferable from one work to another. There is no difference in the benefits allowed to both type of workers. The regularization is on promotion in seniority and on merits. The worker, Khadim Hussain served the Department since last 16 year's and he was regularized vide order dated 18-7-1982 but afterwards. without any notice or reason, the appellant No. 1, on 9-8-1982 issued an order superseding the previous order and deleted the name of the respondent and substituted the name of respondent No. 2 namely, Ali Gul who was junior to the respondent No. 1, Khadim Hussain The case of the worker, Khadim Hussain was that the order, dated 9-8-1982 by appellant No. 1 was without notice and was illegal, void and ineffective. The respondent, Khadim Hussain gave a grievance notice and subsequently tiled a grievance petition.

3. The appellants in their reply statement briefly stated that Khadim Hussain was appointed as Road Mistry on work-charged establishment, vide order, dated 25-10-1974. The conversion of work-charged establishment into regular establishment is exclusively the right of the persons working on M/R works continuously for the last three years or more as per policy of the Government and that the service chargeable to A. D.P. works is not countable and is treated as break towards conversion into regular establishment. The order passed on 2-8-1982 was erroneous and the final order, dated 9-8-1982 was legal and correct order.

4. The arguments of learned counsel, Mr. Abdul Hameed Khan were heard. The arguments of ground for appeal filed by Mr. Manzar Alam, Advocate, for the appellants were also perused.

5. The contention in appeal is that the Labour Court cannot grant a declaration in a. petition filed under section 25-A, I.R.O., 1969. The wording of section are as follows:--

"Section 25-A (1)r-A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises."

6. The words under "any law" brings the section in full force and this is not declaration which is sought but it is infringement of the right which is being challenged in the Labour Court. The redress and the relief for the infringement of right which is guaranteed by law in this matter is sought by Khadim Hussain. The Government policy was that those who had worked as work-charged establishment for more than three years are to be regularized. Since the respondent, Khadim Hussain was regularized and then de-regularized, he came for the relict in the Labour Court.

7. The work-charged establishment is considered to be establishment, of workers as envisaged by the Industrial Relations Ordinance, 1969. In this case an infringement of right which is accrued to Khadim Hussain, was challenged under section 25-A, I.R.O. 1969. The law was that he, was to be regularized after having worked for 3 years continuously but he was not regularized by the Department and hence, his right was infringed. An application under section 25-A, I.R.O., 1969 is maintainable for relief or redress of his right.

8. Going over to the facts of the case and the evidence on record, it is contended by Khadim Hussain that he is a senior most and was senior to Ali Gul. Khadim Hussain has claimed that he was appointed as Road-mate on 2-9-1966, and was promoted as Road-Mistri on 12-12-1983. He has claimed that he was transferred to Ratedero. The appellants have claimed that the respondent Khadim Hussain was appointed as Road-Mistri vide order, dated 25-7-1974. The appellants have brought nothing on record to suggest that there was any break in service of the respondent, Khadim Hussain. On the contrary, the witness of the appellant Nos. 1 and 2 has admitted in his affidavit Exh. 4 in the cross-examination that the employees working on the construction side and working on the maintenance side belong to the work-charged establishment. He also admitted that the promotion of the employees is made on seniority basis, provided there is no break in their service He has further admitted that no notice was given to the respondent, Khadim Hussain before cancelling the order, dated 18-7-1982, Exh. 1/D was issued in favour of the respondent. From these admissions by the witness of the appellants clearly established that Khadim Hussain is senior to Ali Gul by four years as Road Mistri. Ali Gul, in his affidavit Exh. 5 and in cross-examination has admitted that he was promoted as Mistri on 1-1-1978 and that he was appointed as Road Mistri. From these facts it stands proved that Khadim Hussain is most senior to respondent Ali Gul. The evidence of Ghulam Hussain shows that the employees working in the maintenance work are transferable to the Construction work and also the employees working on the construction side are transferable to the maintenance work. The promotion is made on the seniority basis provided there is no break in their service.

9. How his service was broken, it is not known. No regular letter was produced before the Labour Court, hence, it was rightly considered that Khadim Hussain was senior and order, dated 9-8-1982 cancelling, his seniority and promoting Ali Gul was wrong and it caused infringement to the right of Khadim Hussain. The Labour Court has held that this right could be vindicated and could be given to Khadim Hussain. I find nothing wrong in this order and accordingly maintain the impugned order and dismiss the appeal.

A. E.

Appeal dismissed.

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