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Application No. 162 of 1984, decided on 10th December, 1985.

---S. 25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 14--Grievance notice- Limitation--Notice to be served on accrual of cause of action and limitation runs from same date--Workman terminated due to retrenchment. alongwith others--Juniors re-employed within one year--Grievance notice served within limitation period from date of re-employment of juniors--Grievance petition, in circumstances, held, maintainable and plea that grievance notice reckoned from date of retrenchment was time-barred rejected because cause of action accrued on date of re-employment of juniors.

Muhammad Bashir Awan for Applicant.

M. Ibrahim Soomro for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 and 4.

The applicant was appointed as Tractor Operator on 16-11-1963 initially on work-charged/contingent establishment. In pursuance of the directions of the President of Pakistan the staff borne on contingent establishment having put in more than 3 years service were converted into regular cadre. However, the applicant was not brought on regular cadre and finally, he alongwith a number of other workers, was terminated on account of retrenchment made on 2-10-1983. On 15-3-1984 some junior persons were re-employed and so the applicant served _a grievance notice dated 28-5-1984 as he claimed to be senior to those persons who were re-employed. His request for re-employment was turned down and so he instituted the present position for his re-employment with consequential benefits.

The respondent pleaded that the seniority of the applicant was considered from the date he took over the charge in Sub-Division Dadu where he came on transfer from Karachi Sub-Division. It has also been pleaded that the applicant had himself sought his transfer from Karachi to Dadu and had agreed to give up his original seniority. Accordingly, he was much junior to the persons re-employed and so he has no locus standi to approach this Court. It has also been pleaded that the grievance notice was time-barred and -so this application is also not maintainable.

The applicant alone examined himself in support of his case, while Mr. Abdul Sattar, Agricultural Engineer, Larkana was tendered in evidence on behalf of the respondent. After evidence, I have heard Mr. Mohammad Bashir Awan, Advocate for the applicant, and Mr- M. Ibrahim Soomro, Advocate for respondents. I have also considered the evidence on record.

It has been contended on behalf of the applicant that the applicant was appointed on 16-10-1963 in Thatta and was transferred to Dadu in the year 1979. Both the places are under one and the same Director and so the seniority of the entire staff working throughout the Sind is to be jointly drawn. It has also been contended that seniority on sub-division basis are to be prepared. Learned counsel submits that the respondent has produced no evidence to show that the transfer of applicant from Thatta to Dadu was made at his request and that he had agreed to give up his seniority. Accordingly, there was no justification in law to place the applicant below the other workers employed at Dadu. Learned counsel also submits that admittedly the respondents 3 and 4 have been re-employed on 15-3-1984, i.e. within one year of the retrenchment and so this application is well within time. Mr. Soomro, on the other hand, submits that this application is time-barred on the ground that retrenchment was effected on 2-10-1983, whereas the grievance notice was issued on 28-5-1984. His next submission is that the applicant was actually transferred at his own request from Thatta to Dadu as is evident from office order R/1 and the application R/3. A seniority list as per R/4 was also drawn on 10-8-1982 and the same was never objected to by the applicant. Accordingly, he cannot now claim the seniority over the private respondents.

In so far as the limitation is concerned, suffice it to say that) the grievance notice is to be issued on the accrual, of the cause of action. In this case no doubt the retrenchment was effected on 2-10-1983 but the cause of action actually accrued to the applicant on 15-3-1984 when juniors were re-employed. Accordingly, the grievance notice issued on 28-5-1984 was well within time and so this petition is quite maintainable in law.

Reverting to the merits of this case, it is to be mentioned herein that as per letter dated 10-11-1979 (A/4) the applicant was relieved from Thatta to report for duty under Agricultural Engineer, Larkana Division. This letter does not indicate that this applicant was firstly transferred at his own request and, secondly, by virtue of this transfer he was to be placed at the bottom of the seniority list maintained for Larkana Division. The respondent has placed reliance on an office order (R/1) purported to have been issued some time in May, 1979 as also the application alleged to have been made by the applicant as per R/3. None of these documents were however confronted to the applicant during the evidence nor the originals have been brought on record. The solitary witness of the respondent has also showed his ignorance if letter R/1 was served on the applicant or not. Accordingly, it cannot be urged on behalf of the respondent that by virtue of office order R/1 applicant lost his seniority. Moreover, even if R/3 is considered to have been made by the applicant, the same would not help the respondent in as much as this application does not indicate that the applicant had agreed to give up his seniority and so cannot claim seniority over the private respondents. Mere transfer at one request would not debar the employee from claiming the benefit of his service nor the seniority is to be affected unless of course there is something in black and white. As stated above, there is no proof whatsoever that the applicant was transferred from Thatta on this condition and that he would not claim his seniority over others. Accordingly, he cannot be placed below those persons who were employed after the appointment of the applicant.

The Department has also not been able tri prove that any seniority list was prepared and was legally circulated. Seniority list Rl4, purported to have been prepared an 10.-8-1982 does not even mention the name of the applicant even if he had been placed at the bottom thereof. Admittedly the applicant was employed in Larkana Division and if any seniority list was actually prepared his name must have been included therein at any place. Non-mention of the name of the applicant does not affect the right of the applicant.

Under Standing Order 14 if the employer re-employs during one year of the retrenchment, the re-employment is to be made in accordance with the seniority and notice by registered post is to be sent to such person. In the instant case, the applicant has been proved to be senior to the private respondents and who have not contested this petition and so he has a legal right for re-employment in preference to the private respondents.

In view of the above, I accept this petition and direct the re-employment of the applicant with consequential benefits.

A.E. Petition accepted.

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