DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE Versus MUHAMMAD YOUSAF

This is an appeal directed against the decision dated 14‑10‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.7, Gujranwala, whereby the respondent was directed to be reinstated in service with back benefits.

2. The facts are that the respondent was employed on 15‑10‑1983 as a substitute in place of his father who had gone on medical leave. The father of the respondent was retired on 25‑3‑1984. On 30‑5‑1985 one Shah Muhammad was appointed as mason and the services of the respondent were terminated. On 25‑3‑1984 when father of the respondent was retired, the respondent ceased to remain as a substitute employee and the appellants have not shown in what capacity he continued in service thereafter. In the written statement plea was taken that the respondent was employed on daily wages basis but there is no evidence documentary or oral on the record. Ex. R‑2 is said to be the history of the service of the respondent prepared on 2‑7‑1985, probably in connection with the case brought by the respondent in the Labour Court. No doubt this document can be read in evidence since ‑it was exhibited without .any objection but its evidentiary value is yet to be assessed. The record on the basis of which Ex.R‑2 was prepared was not brought on the record. Even in Ex. R‑2 it is not stated that the employment of the respondent was on daily wages basis. He is mentioned as substitute. He could be a substitute till his father was in service but thereafter he remained employed as an ordinary employee. In Ex.R‑2 it is mentioned that his name was sent for trade test which he did not clear. It is not said whether he was informed to appear in trade test and if so, he failed to appear or that he appeared and failed. The respondent in his statement said that he was not sent for trade test and this statement stands unrebutted, as there is no oral or documentary evidence to controvert the same. Since on the retirement of the father of the respondent, the vacancy became permanent, the respondent, who continued to serve for a considerable period, was entitled to be considered for absorption. Since he was not sent for trade test, he could not be removed from service on the plea that he did not clear it. There is no evidence that cent per cent vacancies of masons are to be filled in by promotion. There is also no evidence produced by the appellants that according to the quota, the term was for filling of the vacancy by promotion and not by direct appointment. Since in Ex. R‑2 it is said that the name of the respondent was submitted for trade test, it means the vacancy was to be filled in by direct appointment. In the absence of any evidence that either the respondent did not of his own accord appears in the trade test or that he appeared and failed, it was not proper to fill in the vacancy by promotion without considering the case of the respondent. The finding of the learned lower Court on merits of the case, therefore, appears to be correct with this modification that if taking of trade test is necessary, the services of the respondent can be regularised if he gets through the trade test.

3. However, this argument of the learned counsel for the appellant is not without force that since on the date on which the respondent moved the application under section 25‑A of the Industrial Relations Ordinance, 1969 he was no longer in service, he was not covered by the definition of workmen as given in section 2(xxviii) of the said Ordinance. The Lahore High Court has, in 1985 P L C 1053 held that the persons who are no longer in service and where Standing Orders Ordinance, 1968 is not applicable, cease to remain workmen on the date of removal from service. The above‑mentioned ruling has not D yet gained finality as it stands challenged before the Supreme Court, therefore, only a conditional order of return of the grievance petition can be passed.

4. As a result the appeal is partly accepted and the grievance petition is directed to be returned to the respondent with the observation that if the Supreme Court finds that the persons not in service on the date of making their grievance petitions are covered by the definition of workman, the respondent will be entitled to the benefits under the decision of the learned lower Court to the extent it has been confirmed by this judgment.

A.E./344/Lb.P Appeal partly accepted.