This petition was filed by one Liaqat Ali, Electrician employed in the Maintenance Directorate of CDA u/S. 22-A (8)(g) of the Industrial Relations Ordinance, 1969 on the apprehension that the CDA Management might dispossess him of the Residential Quarter No, 1/2-A, situated in Sector G9/3, Islamabad as the same was allotted to his deceased father in his capacity as an employee of CDA.
It is contended that Petitioner has attained the status of a permanent employee and so is entitled to the allotment of the same Quarter under the Pakistan Allocation Rules, 1995 as amended up to date on the basis of this being son of a deceased employee. It was stated that these Rules have been adopted by the CDA. It is contended that due to trade union activities of the Petitioner the Respondent Management intends to forcibly dispossess him from the premises of the Quarter in question.
2. The above petition was filed on 9.1.1997 alongwith stay application under Regulation 32(2) of the NIRC (Procedure & Functions) Regulations, 1973. The then learned Member after hearing the learned Counsel for the Petitioner granted status-quo on the date of filing the Petition, which was confirmed by subsequent order dated 20-3-1998 with the following observations:-- "The balance of convenience lies in favour of the petitioner/appellant. He is an orphan and pulling on with his family including his old mother/widow of a permanent deceased employee of the respondent establishment. If the stay is not granted the applicant alongwith his family shall be evicted from the quarter and which they are likely to suffer an irreparable loss and injury. The application is allowed and the respondents are restrained from ejecting the petitioner/applicant till final decision of the petitioner".
3. During the course of proceedings two affidavits in evidence, one on behalf of the Petitioner and the other on behalf of the Respondent were filed. The statement of the Petitioner was taken on oath which is marked as Exbt. PW/1. The Petitioner in his cross examination has stated that CDA is being controlled by the Federal Government and he was appointed as Daily Wager. He has further stated that it is not correct that Daily Wager is not entitled to allotment of official house. He has also stated that no house has been allotted to him including the house in question. He has also admitted that it is correct that the house in question was allotted to Muhammad Ellahi, Masson who, he voluntarily said, has retired. He has also stated that the house in question was originally allotted to his father who died on 13.10.1995. He too has admitted that it is correct that in the Referendum for the year 1997 daily wage did not cast their votes because their votes were not included in the voters list. He has however stated that it is incorrect that he did not take part in the said referendum. He has also admitted that it was correct that he is not Member of any union and simply he has affiliation with a group of a union. He has stated that it is incorrect that no unfair labour practice has been committed by the CDA. He has also stated that it is incorrect that the refusal to allot the house in his favour was not due to his alleged trade union activities. He too has stated that it is incorrect that even otherwise he is not entitled to allotment of the house being Daily Wager. He also has admitted that the house in-question is in his possession without formal allotment order.
4. The witness of the Respondent namely, one Javed Ahmed Assistant Admin Officer CDA was also cross-examined on oath by the learned Counsel for the Petitioner and his statement is placed on the file as Exbt. RW/1. The witness of the Respondent has stated that he is posted as Assistant Admin Officer in the Department since May, 2003. He has further stated that there are two Assistant Admin Officers and both have different duties to perform. He deals with the hiring of accommodation cases whereas the other Assistant Admin Officer deals with the general administration. He has stated that there are 15 to 20 litigation cases pertaining to accommodation which are pending, but he is not aware of the facts of all the cases. He also. has admitted that it is correct to suggest that he has not read all these cases but he read the instant case. He also has admitted that it is correct that he does not know the facts of this case.
5. The matter was argued by the Counsels of both the parties. Mr. Abdul Hafeez Amjad. Counsel for the Petitioner has argued that the right of the Petitioner regarding eligibility and entitlement to the Quarter in question has been established in view of the Government Rules _adopted by the CDA, which inter alia allows allotment of the residential accommodation to the son of a deceased employee provided he is employed by the CDA and the same was allotted to his father. He argued that the Petitioner applied repeatedly for allotment of the Quarter in question but the same has not been done as an unfair labour practice and so is the case of discrimination with the Petitioner by the CDA Management. The learned Counsel brought to the notice of this Court the following allotment orders in respect of some Daily Wagers which clearly show discrimination on the part of the management:--
1. Allotment of Quarter (No, 534-C, St. No, 51, Sector G-6/1-3, Islamabad) to Mr. Zia Muhammad S/o Raja Liaqat Ali, vide order dated 3-3-1999.
2. Allotment of Quarter (No, 533-C, St. No, 51, Sector G-6/1-3, Islamabad) to one Shaukat Mehmood S/o Sufi Sultan Khali vide order dated 26.6.1999.
3. Allotment of Quarter (No, 395-C, Gali No, 27, Sector G-6/1-2, Islamabad) to one Asif Javed vide order dated 12.4.1999.
4. Allotment of Quarter (No, 488-C, Gali No, 34, G-6/1-3, Islamabad) to one Imtiaz-ul-Haq vide order dated 20.5.1999.
5. Allotment of Quarter (No, 122-B, Sector G-6/1-4, Islamabad) to one Tassaduq-ur-Rehman vide order dated 17.6.1999.
6. Allotment of Quarter (No, 257-C, St. No, 31, Sector G-6/2 Islamabad) to one Sultan Mehmood vide order dated 8.3.1999.
7. Allotment of Quarter (No, 93-D, Sector G-6/2, Islamabad) to one Hafiz Muhammad Mudasar vide order dated 13.11.1999.
8. Allotment of Quarter (No, 83-A, Sector G-6/2, Islamabad) to one Pitras Masih vide an order dated 28.6.1999.
6. The learned Counsel for the Petitioner has further argued that the Petitioner has attained the status of a permanent employee and in that regard he relied on the judgment reported as PLD 1988 SC 38, SCM R 1989 455(b). Also the learned Counsel has argued that the Respondent management is violative of its own rules. He has stated that the case of discrimination is rightly attracted by Section 53(1)(c) of IRO, 2002 relating to unfair labour practice on the part of the employer. The eligibility of the petitioner is established by the rules of application which entitles the son of the deceased employee for the allotment of the residential quarter on genuine grounds.
7. The learned Counsel for the Respondent, Syed Rais Ahmed Jafri has argued that the petitioner is not entitled under the above rules because he was daily wage worker at the time of filing of the petition. He has contended that the petitioner cannot become entitled in due course of time after attaining the status of regular employee. He can only get the benefit for allotment of quarter on his turn. He has also contended that the petitioner is just a trespasser and the quarter in question has not been allotted to the. petitioner. He has reiterated the position mentioned in the reply statement that the quarter was allotted to one Mr. Muhammad Elahi, Mason Maintenance III. The learned Counsel for the Respondent also raised objection with regard to filing of fresh documents when by the order dated 7.9.2004, the defense of the petitioner was struck off. He has argued that in view of the said order the fresh documents are not maintainable. The learned. Counsel also raised the objection that NIRC has no jurisdiction in the instant case and there happened no case of unfair labour practice by the Respondent, as the petitioner during his cross-examination has admitted that he is not member of any union. The father of the petitioner died on 13.10.1995 prior to his appointment in the CDA, therefore, on this ground along he has no right to allotment of the quarter on the basis of his being son of the deceased employee. The learned Counsel also raised the objection that this case falls within the jurisdiction of FST in view of Section 20-A of the Federal Service Tribunal Act 1973. As such the petitioner has no locus standi to file this petition in this Court.
8. The learned counsel for the Petitioner respondent to the objection of the learned Counsel for the Respondent regarding placing of additional documents before the Court at the latest stage by referring to Regulation 35 of NIRC (Procedure & Functions) Regulations 1973 which provides that all books, papers and other documents or things produced before the Commission whether voluntarily or in pursuance of a summons may be inspected by the Commission and also by such parties as the Commission may allow. As such he argued that the additional documents can be produced at any stage for perusal/inspection of the Court.
9. From the above arguments of both the Counsels. I arrive at the following conclusions:--
(a) The Petitioner being the son of a deceased employee has been residing in the house allotted to his father by the CDA alongwith his family. He therefore continues to retain the possession of the house in question. His stay was confirmed by this Court and so he was not dislodged from the quarter.
(b) The claim of the Petitioner is based on merits as he seeks allotment of the said quarter under the Rules after attaining the status of a regular employee of the CDA. On the other hand his case could be decided sympathetically by the CDA on the ground of his being son of a deceased employee of the said Organization. It is also a matter of record that the Petitioner was given the employment in the same organization and so it would not be justifiable if same consideration is not given in respect of allotment of the quarter in question in his name.
(c) This petition was entertained on the ground of unfair labour practice in view of Petitioner's interest in trade union activities. Whether the Petitioner was or not a Member of any trade union Organization is immaterial because the relevant section concerning unfair labour practice on the part of the employer (Section 15 of IRO 1969 and Section 63.of IRO, 2002) clearing envisages that there shall be no discrimination against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not a member or office bearer of a trade union. The case of the Petitioner is a case of discrimination in view of the certain office orders (cited in the above) as presented by his learned Counsel during arguments. While the objection of the learned Counsel has been answered by the learned Counsel for the Petitioner, the same appears to be a technical objection. As held by the superior Courts, justice cannot be denied to a party on the ground of technicalities.
(d) This case rightly falls within the jurisdiction of this Commission and so is not barred by Section 2-A of the Service Tribunal Act, 1973 as the petition is based on the allegation of unfair labour practice which was not disproved by any counter-evidence.
(e)It is not the case of any trespass as contended by the learned Counsel for the Respondent. The Petitioner and his family including his mother continues to live in the quarter allotted to his father.
The person to whom the quarter is contended to have been allotted has already retired as evidenced from the cross-examination of the petitioner. Even if that person had not retired, the petitioner would have genuine ground for consideration of his case on permit under the law.
In view of the above I accept the petition and direct the Respondent not to dislodge the Petitioner from the quarter which is allotted to his Father. It would be in the interest of justice as well as on human grounds that the quarter in question be allotted to the Petitioner.