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Constitutional Petition No. D‑14 of 1983, decided on 3rd February, 1986.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0s. 13 & 14‑A‑‑Termination of service‑‑Mala fide, proof of Burden of proof upon party urging mala fide‑‑Mala fide to be established through convincing evidence that impugned order was based upon extraneous circumstances and not maintainable under law‑‑Mere refusal to promote a workman and rejection of his prayer, held, could not be a basis for argument that subsequent termination of service was on that ground.

‑‑‑S.Os. 13 a 14‑A‑‑Retrenchment‑‑Workers of construction company‑ Different projects run by same employer‑‑Workman of one project on its completion terminated‑‑Employer being one and nature of duties being identical rule of "first in last out" laid down in S.O. 13, being limited to same establishment, held, would be applicable and workman of project not yet completed if junior, had to be retrenched.

Abid Hussain v. Sind Labour Appellate Tribunal, Karachi and 2 others 1981 P L C 955 held not applicable.

Punjab Road Transport Board v. B.D. Burney and another 1985 S C M R 910 distinguished.

Sind Road Transport Corporation v. Abdul Khalique Mangi 1982 P L C 97 and Muhammad Anwarul Haq v. Punjab Labour Court No. 1, Lahore and another P L D 1977 Lah. 907 ref.

S.M. Hussain and another v. National Construction Company, Karachi N L R 1981 TD 557 rel.

Rashid Ahmad Chaudhry for Petitioner.

Syed Qamarul Hassan for Respondents.

Date of hearing: 22nd January, 1986.

‑The petitioner has challenged the order of Sind Labour Appellate Tribunal by which the appeal directed against the order of the Labour Court was accepted.

The facts in brief are that the petitioner was employed as a Draftsman since 8‑7‑1976 in the Juna Bandar Joint Venture. He was retrenched from service vide order dated 13‑10‑1980 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 petitioner vide application dated 13‑9‑1980, had requested for promotion to Grade‑V but his request was rejected vide letter dated 7‑10‑1980. Aggrieved by the retrenchment of his services, the petitioner filed a grievance petition before the Fifth Labour Court. The petition was allowed on the ground that the retrenchment from service was mala fide as he was only person singled out for retrenchment and no other person was retrenched and one Mr. Latif was appointed by the joint venture to perform the same duties.

The learned Labour Appellate Tribunal took the view that as the substantial part of the joint venture had been completed, therefore, the services of the petitioner were terminated and it would be unreasonable to expect the joint venture to grant a promotion to the petitioner. In any case mala fides in such circumstances cannot be presumed. It has also been held that no presumption can be drawn that Mr. Latif had been employed in place of the petitioner. The contention of the petitioner that the rule of first in last out embodied in Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance), appears to be limited to same establishment or project. The contention of the petitioner that the appeal filed by the respondent No.2 before the respondent No.1 was not maintainable was also not entertained. In a these circumstances the appeal filed by the respondent No.2 was accepted.

2. It has been urged by the learned counsel for the petitioner that the petitioner had applied for promotion and as the promotion was not granted to the petitioner, therefore his services were terminated. This contention has no force. If the petitioner was not promoted there was no cause of grievance to the employer, on the other hand the petitioner might have been aggrieved against the order refusing promotion. Merely because the prayer of the petitioner for promotion was rejected it cannot be argued that his services were terminated on this ground. When a mala fide has been urged by a party, the burden is upon him to establish through convincing evidence that the order passed against him is based on extraneous circumstances and not maintainable under A law. There is no evidence on record to substantiate the plea of mala fide urged by the petitioner. In this context the learned Appellate Tribunal has considered the case of the parties and observed that substantial part of the joint venture had been completed by the time the petitioner's services were terminated. As such this would be unreasonable to expect the joint venture to grant promotion to the petitioner.

It has been contended by the learned counsel that the Juna Bandar Joint Venture had been transferred back to the National Construction Company (Pakistan) with effect from 18‑12‑1978 and reliance is placed on Annexure 'E' filed before the Labour Appellate Tribunal but this document was not filed before the Labour Court and the Labour Court has not given any finding on this document. It therefore appears that the Labour Appellate Tribunal has also not considered this document and ignored it altogether.

The first respondent examined Muhammad Amjad Siddiqui as a Court witness and he has stated that the joint venture in respect of the Juna Bandar upon the splitting up of the National Construction Company, was assigned, so far as the interests of the N.C.C. was concerned, to the National Construction Company (Pakistan) Ltd. The Juna Bandar Joint Venture was not the only venture in which the N.C. C. (Pakistan) and the Denish Company have collaborated. He further stated that Juna Bandar Joint Venture is an undertaking of the National Construction Company in joint venture with Christian and Nelsen A/S of Copenhagen. In 1978 the National Construction Company split up into two separate companies, the National Construction Ltd. which was made responsible for the projects in Pakistan and the National Construction Company (Pakistan) Ltd. which was responsible for the projects abroad. Besides the above joint venture they are collaborating in the Bridge Joint Venture. Both these joint ventures have been completed. The Juna Bandar Joint Venture was completed on 20‑2‑1982 while the Bridge Joint Venture was completed on 31‑5‑1982. The staff of the Juna Bandar Joint Venture is in the process of demobilization and this process is likely: to be completed within two weeks.

The document on which the learned counsel has placed reliance has not been put to this witness and in these circumstances when the document has not been admitted by the other side no reliance can be placed on it. Thus, the petitioner has failed to establish that the joint venture was transferred to the respondent No.2. It has been specifically stated by the appellant in the written statement filed in the Labour Court that the petitioner was appointed for the Juna Bandar Joint Venture and the respondent does not send persons abroad for employment and appointing authority for abroad is totally independent body.

4. It is next contended by the learned counsel for the petitioner that the project was completed on 20‑2‑1982 but the services of the petitioner were terminated on 13‑10‑1980. It means that the project was still in progress when the services of the petitioner were terminated.

In reply to this contention, it is the case of the respondent that the demobilization had started with effect from 10‑1‑1980 and it had completed on 20‑2‑1980. The learned Labour Appellate Tribunal has referred to various documents to repel the contention of the petitioner, that no retrenchment has been made. The finding is based on record. Exh. X‑4 is dated 10‑1‑1980 which shows that 22 persons had been retrenched. On 12‑1‑1980, 19 employees had been retrenched (Exh. X‑5). On 21‑1‑1980 28 workmen had been retrenched (Exh. X‑6). On 31‑1‑1980 31 persons had been retrenched (Exh. X‑7). On 15‑1‑1981 14 persons had been retrenched (Exh.X‑8). On 18‑1‑1981 10 persons had been relieved of their jobs Exh.X‑9). On 28‑2‑1981 3 persons have been retrenched (Exh. X‑10). On 31‑3‑1981 52 persons had been retrenched (Exh. X‑11). The services of the petitioner were retrenched on 13‑10‑1980 (Exh. X‑13) wherein it is stated that the job against which the petitioner was working has become redundant due to the completion of major/most of the work and therefore he had been rendered surplus.

All these documents would support the case of the respondent that the petitioner's services have been terminated, as his services were no more required due to the completion of the work. The other employees of the said Joint Venture had also been relieved of their duties and none of them had challenged the orders of their termination. The letter of confirmation dated 23‑6‑1977 issued by the Administrative Manager, Juna Bandar Joint Venture also shows that the petitioner was confirmed by the National Construction Company (Pakistan) Ltd. Juna Bandar Joint Venture.

5. It is next contended by the learned counsel for the petitioner that though the petitioner's services were terminated but one Mr. A. Lateef was appointed on 1‑10‑1980 i.e. before the termination of the services of the petitioner. His contention is that the appointment of Mr. Lateef contradicts the contention of the respondent No. 2 that the work had been completed.

The case of the respondent No. 2 is that A. Lateef was employed for demobilization purpose. He was not appointed as a draftsman. He was appointed in a higher grade as an Engineer; therefore, the contention of the petitioner is not well‑founded. It has been specifically stated by the respondent No. 2 in the written statement filed in the Labour Court that Mr. Lateef had not been appointed as draftsman. He had been appointed for the specific purpose of demobilization that is winding up of the project. The appointment letter of Mr. Lateef Annexure 'E' also confirms this contention. He was appointed as an Engineer and not as draftsman. He was drawing higher salary than the petitioner. The petitioner was employed as a draftsman in Grade‑VI and he had requested for promotion to Grade‑V but his request was rejected. On the other hand Mr. A. Lateef was appointed in Grade‑IV. In view of the above facts it is incorrect to allege that Mr. A. Lateef was performing the same duties.

6. It is next contended that even after the termination of the petitioner's services five drawings had been prepared by Lateef and one Mr. Qamar Imam. The mere preparation of five drawings during the period of about 16 months does not indicate that the respondent had the vacancy of draftsman. On the other hand this would show that the work was in the process of completion and, therefore, a separate person was not 'required for making only five drawings.

7. It is next contended by the learned counsel for the petitioner that the respondent was engaged in another construction project namely the Bridge Venture in which the petitioner should have been employed

In support of this contention learned counsel has referred to Standing Order 14‑A of the Ordinance which reads as under:‑

"14‑A.

‑‑ Where any workman is retrenched or discharged contractor or any employer engaged in the construction industry due to completion cessation or discontinuance of work, he 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 continuous 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."

The learned respondent No.l had adverted to this aspect of the case and considered the contention of the petitioner but has not given any positive finding. It has been observed that the question that arises for consideration is whether the respondent (petitioner) had preferential right to appointment in the Bridge Project over Khalil who was already working there as a draftsman. In this context it also observed that the rule of first in last out embodied in; Order 13, appears to be limited to same establishment or project but am doubtful that it can be stretched to other establishments or which are being run by the same employer". However, as Khalil already employed as draftsman when the services of the petitioner terminated, therefore, the provisions of Standing Order 14‑A are applicable.

The record shows that one Khalil Ahmad was employed as draftsman on 14‑1‑1980 and he continued to work as draftsman in the Bridge Project upto 28‑1‑1982 when he resigned whereafter no other draftsman was appointed since the draftsman's work had been completed. It is the case of the respondent No.2 that the Juna Bandar Joint Venture and the Bridge Joint Venture are two independent projects. It has been admitted by the respondent that these two ventures were constructed by the respondent No.2.

8. It is now to be considered what is the effect of the Standing Order 13 which provided that where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category.

It is an admitted fact that both ventures were run by the respondent No.2. The employer is the same and the nature of the work is also the same. The learned respondent No.l has come to the conclusion that under Standing Order 14‑A the petitioner cannot be deemed to be entitled to have been appointed in the Bridge Project. We agree with the contention that Khalil Ahmad could not be displaced for the reasons C that he was already in service and, therefore, provisions of Standing Order 14‑A would not be applicable but Standing Order 13 would definitely apply in the circumstances of the case as Khalil Ahmad and the petitioner both were draftsmen and thus the junior most workman is to be retrenched. Khalil Ahmad was junior to the petitioner, therefore, he should have been retrenched.

Learned counsel for the petitioner has referred to the case of Abid Hussain v. Sind Labour Appellate Tribunal Karachi and 2 others reported in 1981 P L C 955 but this authority is inapplicable to the present case because in this case the employer of the company was the same but in the present case the company had been bifurcated and the two ventures were run by the respondent No.2 in collaboration with a (foreign company and, therefore, the employer was not the same.

He has also referred to the case of Punjab Road Transport 'Board v. B.D. Burney and another reported in 1985 S C M R 910 wherein a retrenched workman was re‑employed. The case is distinguishable, as after the completion of the two projects no new post has fallen vacant.

The next case cited by the learned counsel is Sind Road Transport 'Corporation v. Abdul Khalique Mangi reported in 1982 P L C 97 wherein Standing Order 13 was considered and it has been observed that the last come should first go.

A plain reading of Standing Order 13 makes the provision clear and it requires no further interpretation.

Similar view was taken in the case of Muhammad Anwarul Haq v. Punjab Labour Court No. 1 Lahore and another, reported in P L D 1977 Lah. 907.

The learned counsel then stated that the same Tribunal in the base of S.M. Husnain and another v. National Construction Company Karachi reported in N L R 1981 TD 557 has held that it is well‑established that it is not designation which employer chooses to give to A post which is material for determining whether holder of that post was within definition of workman but it is nature of duties for which he is employed and it was observed in para. 10 of the judgment that it would, however, appear that the appellants were not employed specifically for any project or cell and were taken up in general employment of the respondent establishment. It has been further held that merely because the respondent establishment chose to call their different ventures as separate projects or cells does not mean that each cell or project was a water‑tight section or department. It was, therefore, held that retrenchment in one project or in one section the employees of that project oz section would be entitled to appointment to vacancies in another project or section.

We endorse the view taken in this authority.

It escaped the notice of the learned Appellate Tribunal that in the instant case the employers are the same and there were only two different projects and, therefore, the provisions of Standing Order 13' should have been taken into consideration.

9. In these circumstances we are of the opinion that the services of Mr. Khalil Ahmad should have been discontinued and he should have been retrenched in place of the petitioner. Mr. Khalil had worked upto 28‑1‑1982 and the petitioner's services were terminated on 13‑10‑1980, therefore, the petitioner is entitled to the pay and other benefits for this period and to this extent the petition is allowed, with no order as to costs.

A.B. Petition partly allowed

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