' SABIHUDDIN AHMAD, J.---Since all the above three petitions contained similar facts and identical question of law, therefore, we intend to dispose of the same by this common judgment.
' The petitioners in C.P. No,1618, 1619 and 1621 of 1999 (hereinafter described as petitioners No,1,2 and 3 respectively) were employed as general workers in the respondent No,2 company. The petitioners Nos.1 and 3 appointed initially in the Production Department in 1994 and 1995, but were transferred to agri-vet section on 27-6-1997. The petitioner No,2 was initially appointed as a watch-man in 1990, but upon the assignment of security duties to security agency he was appointed as general worker in the Agrivet Department. All the three petitioners were confirmed in service and incidentally their letters of confirmation only described them general workers without specifying any department. Moreover according to the terms of initial appointment, produced by the petitioner No,1, the services were transferable to any other section, department or branch office of the company as is evident from para 7 of the appointment letter, which reads as follows:-- "7.- Presently your services are placed as a "GENERAL WORKER" in the Production Department, but your services can be transferred to any other section, department or branch office of the Company as per Rules and Regulations."
2. Subsequently the petitioner was confirmed in service and thereafter through a Circular dated 27- 6-1997 he was transferred from the Production Department to the Agrivet Department. By a letter dated 27-3-1998 the services of the petitioner were terminated on the ground that the company did not wish to retain the Agrivet Department as manufacturing of annual product was considered no longer viable and as such the petitioner's services had become surplus. The petitioner being aggrieved by the aforesaid termination served a grievance notice, alleging that several junior general workers had been retained by the company and he was being victimized for his trade union activities. Failure to receive any response he approached the appropriate Labour Court for redress.
3. The respondent No,2 filed a reply statement to the petitioner's application under Section 25-A of the Industrial Relations Ordinance, 1969 before the Labour Court. With respect to the specific allegations of retention of general workers, who were juniors to the petitioner. It was contended that the workers mentioned in the petitioner's application were working in other departments and not the Agrivet Department. The same position was reiterated in the affidavit-in-evidence of the Manager Personnel and Management of the respondent No,2. In cross-examination however, he stated that the workers mentioned by the petitioner in para 8 of the grievance petition were operators, but at the same time he admitted that this position was never taken up anywhere earlier.
4. The learned Labour Court by its decision dated 16-10-1998 allowed the application and directed that the petitioner be re-instated with all back benefits. The respondent No,2 preferred an appeal against the aforesaid decision before the then Sindh Labour Appellate Tribunal. The learned Tribunal appeared to be of the view that the Labour Court had allowed the petitioner's application on the ground of his being victimized for trade union activities, though there was no tangible evidence to support the aforesaid contention. With respect to the grounds that the petitioner was not junior most worker and his retrenchment was not bona fide. The Tribunal took the view that the Standing Order 13 of the Industrial and Commercial Employment contemplated that the junior most from category of workmen and not from the entire work force in the company ought to be retrenched first. Since it was not disputed that no worker junior to the petitioner was retained in the Agrivet Department and other workers mentioned by the petitioner were admittedly working in other departments, the petitioner's plea was "fallacious". Consequently the appeal was allowed and the judgment of the Labour Court was set aside by order dated 11-5-1999.
5. The petitioner has called in question the aforesaid order through this petition. Mr. M.A.K. Azmati, learned counsel for the petitioner argued that the finding of the Tribunal is based upon a complete misreading of material on record and mis-interpretation of the relevant law. He emphasized that the petitioner belongs to a category of worker described as "General Workers" and had a bona tide retrenchment had been placed no general worker junior to him could be retained in service. He contended that the mere fact that the petitioner was working in the Agrivet Department at the relevant time was inconsequential as his appointment letter show that he was initially appointed in another department and under the terms thereof he could be transferred to work in any other department, and therefore, workers in Agrivet Department could not be classified as separate category. As a matter of fact he had been transferred to the aforesaid department only a few months prior to the issuance of the termination letter after having rendered several years of service in the Production Department. Moreover, he pointed out that the petitioner had explicitly stated both in his application and affidavitin-evidence that his seniority was counted with general workers and not with Agrivet Department and this contention was neither rebutted in reply statement nor in the affidavit-in-evidence on behalf of the respondent No,2 nor was in any thing of the contrary suggested in cross-examination.
6. Mr. Muhammad Humayun, learned counsel for the respondent No,2, on the other hand, argued that there was no tangible evidence on record to show that the petitioner was victimized for his trade union activities. In any event neither an industrial dispute existed nor did such termination lead to an industrial dispute, and therefore, the ground of victimization could neither be established from fact nor the legal requirement was such ground available in law. As regards the retrenchment he argued that it was always the employers privilege to close down any particular department and when the respondent No,2 did so find the same not viable, to objection could be taken to the termination of services of all workers serving in that department, which constituted a separate category of workers. He also relied upon the pronouncement of the Honourable Supreme Court in Utility Stores Corporation v. Punjab Appellate Tribunal (PLD 1987 S.C. 447). In this case services of the respondents Nos.3 & 4 who had been promoted from the positions of salesmen but supervisors were terminated by way of retrenchment in view of abolition of some posts of supervisors. Their plea that should have been reverted to the position of salesmen was repelled by their Lordships.
7. We have carefully gone through the record and considered the respective contentions raised at the bar. On the ground of victimization for trade union activities we agree with the learned Tribunal that there was no tangible evidence on record to prove the same. Nevertheless we may observe with profound respects that a different conclusion was found by the Labour Court was not quite correct. The Labour Court had merely recorded the respective contentions of the parties but did not pronounce upon the question either way.
8. The only point, on which the controversy was premised, was whether there was a bona fide retrenchment in terms of Standing Order 13 of the Standing Orders Ordinance. Indeed there can be no cavil with Mr. Muhammad Humayun's contention that an employer could always close down a department or a section of his establishment in case he does not find it viable from his business point of view. In a given case all the persons employed in that section performing a particular kind of work and possessing a special skill could be retrenched. In the instant case however, the petitioner's own appointment letter mentioned that he was not employed in a particular department and could always be transferred (and was in fact transferred) to another department as a general worker. There is also force in Mr. Azmati's contention that whereas the petitioners had expressly alleged that his seniority was reckoned on the basis of general workers employed by the company, the same went in un-rebutted on the part of the respondent No,2. Indeed the petitioner could always he re-transferred to another department or to his original department.
9. With respect to the pronouncement of the Honourable Supreme Court in Utility Stores case, and was founded upon, entirely different set of facts and legal principles. Admittedly the respondents had promoted to the posts of supervisors which obviously constituted different category of workers as compared to salesmen. Then Lordships proceeded to consider whether they could claim their lien on the post of salesmen. It was observed that while a civil servant could claim a lien over his original post while officiating in another post no such right was available to a workmen under any law. We may add that even the lien of a civil servant stands terminated once he is appointed to a higher post of a substantive basis. In the instant case however, the petitioner has not claimed any lien against the post from which he was transferred to Agrivet Department. His case is simple that by a very terms of his appointment he was liable to serve as general worker in any section of the company, and therefore the principles laid down in the aforesaid are not applicable.
10. On other hand the learned Tribunal itself has referred to a Division Bench judgment of this Court in Aijaz Hussain v. Hotel Jabees Limited (1990 PLC 643). In this case the petitioner was employed as a Room Bearer in Hotel Jabees belonging to the respondent company, which was apart from the said Hotel running other establishments i,e, Funland, Playland and Kababish Restaurant and it had come in evidence that while they were the junior most Room Bearers in Hotel Jabees, but other juniors to them were retained in other establishments. Their Lordships held that Room Bearer waiters and tables boy constituted one category of workmen and therefore, the termination of services of the petitioners was not in accordance with the requirement of Standing Order 13 and the Order of the learned Tribunal was set aside.
11. The above case in our humble view appears to be applicable on all fours with the present one and respectfully following the principle contained therein, we would allow these petitions, set aside