DECISION ' The appellants, who are engaged in construction projects both in Pakistan and abroad, employed the respondent as a Procurement Assistant, vide appointment letter, dated 9-6-1975.
Subsequently, he was promoted as Senior Procurement Assistant and confirmed in the said capacity, vide appellant's letter, dated 21-1-1976. He was transferred to the Peace Hawk V Project, vide letter of the appellant-Company, dated 9-11-1977, and was directed to hand over charge of the assignment he was then holding with immediate effect and report to the Administrative Officer, Peace Hawk V Project, for further instructions. In persuance of this letter, the respondent was relieved from his assignment in the Head Office on 21-11-1977 and advised to report to the Administrative Officer, Peace Hawk V Project. On 16-11-1977, the respondent was informed that he has been selected exclusively for the Peace Hawk V Project for posting in Saudi Arabia on the conditions stated in the said letter. One of the conditions of transfer was that his posting in Saudi Arabia was to be for one year. The respondent was also required to execute a foreign service agreement and he executed such agreement on 4-10-1977. The respondent, thereafter, proceeded to 'Tait" in Saudi Arabia, where he completed his assignment of one year. Thereafter, his foreign service agreement was terminated vide letter, dated 6-5-1978, in accordance with clause 14(111)
(a) of the foreign service agreement. The respondent, thereafter, returned to Pakistan and reported to the appellant-Company but he was informed, vide appellant's letter, dated 28-6-1978, that he had no lien of service in Pakistan as per circular letter of the Company, dated 7-3-1978, and consequently his services stood terminated under the foreign service agreement. He was, accordingly, advised to collect his dues, if any. The respondent, aggrieved by this reply, filed a grievance petition before the learned Labour Court, after serving the requisite grievance notice upon his employer, to which he received no satisfactory reply. The learned Labour Court has held that the respondent's transfer to the Peace Hawk V Project and his posting to 'Tait" in Saudi-Arabia did not amount to severance of his relations with the appellant-Company and consequently on the completion of his assignment at 'Tait" he was entitled to be reposted by the Company in Pakistan in a post comparable to that which he was holding before his posting at 'Taff'. The appellant-Company has challenged this decision by way of appeal before this Tribunal.
2. I have heard Raja Shamsuzzaman, the learned counsel for the appellant-Company. And Mr. M. M.
Jillani, who appeared for the respondent. Mr. Shamsuzzaman assailed the impugned decision of the learned Labour Court on the following grounds :-
(i) the respondent was not tradsferred to the Overseas Project but was given a new job which entailed the severances of his relations with the appellant-Company in Pakistan;
(II) even if the new posting of the respondent be considered as a transfer, by accepting the transfer to a new job in a foreign country he should be considered as having abandoned his lien on the post held by the respondent in Pakistan ; and
(iii) that in any case the respondent's services stood terminated by the appellant-Company's letter, dated 28-6-1978, and thereafter, the respondent had no further claim on the appellant.
3. Elaborating his arguments in support of his first contention, Mr. Shamsuzzaman invited my attention to certain documents, which according to him, supported his contention. He submitted that the respondent had an application for being selected for assignment at 'Taff' and in support of his submission referred me to the cross-examination of Hamced Mohsin, the appellant-Company's Industrial Relations Officer, who has stated that the respondent had applied to be posted and transferred to some foreign project. Not much significance can be attached to this statement as, firstly, no such application was produced by the appellant-Company before the learned Labour Court, secondly, the application, if any, was in respect of any foreign project and not specifically for Peace Hawk V Project at 'Taff' and, lastly, since the latter project was under the control of the appellant-Company, mere request or application to be posted or transferred to the said project did not imply that the applicant wanted to sever his connection with the Company or he wanted to abandon his employment with the Company at Karachi. Mr. Shamsuzzman next relied upon the letter of the appellant-Company, dated 16-11-1977, informing the appellant that he had been selected exclusively for Peace Hawk V Project for posting in Saudi Arabia. There is no indication in this letter that by this selection and posting the respondent would be severing his connection with the Company in Pakistan. No doubt the letter recites that the respondent was selected exclusively for the Peace Hawk V Project for posting in Saudi Arabia but the word 'exclusively' refers to the place of posting and cannot be construed as severence of respondent's relations with the Company. This inference gains support from the fact that the period of posting in Saudi Arabia was to be only for one year. If it was the intention of the appellant-Company that only those employees would be selected or posted in Saudi Arabia who agreed to sever their relations thereafter with the Company in Pakistan, this should have been expressly stated in the terms and conditions, which has not been done. Raja Shamsuzzaman also relied upon the foreign service agreement but this agreement only covers the assignment at 'Taff' and did not touch at all the service conditions of the respondent with the Company in Pakistan. Finally. Mr. Shamsuzzaman relied upon a circular, dated 7th March, 1968, issued by the Company. According to Mr. Shamsuzzaman, this circular was specifically brought to the notice of the employees who were transferred to the foreign projects and they were informal that their lien in Pakistan stood terminated upon such transfer. Now, in the first place, this circular was issued after the respondent had entered into foreign service agreement with the appellant-Company and he had left for the project at 'Taff'. The circular thus cannot affect the employment of the respondent with the appellant-Company in Pakistan.
Moreover the circular itself recites that employees who have been given assignments on foreign projects can have no lien in the company's offices in Pakistan unless they are specifically transferred to Overseas Projects. In the instant case, as rightly pointed out by the learned Labour Court, the services of the respondent were specifically transferred to the foreign project, vide letter of the appellant-Company, dated 19-11-1977. It is, therefore, obvious that the respondent was being merely given a temporary assignment on a foreign project and there was -no hint or indication to him that this in any way implied the severence of his relation with the appellant-Company in Pakistan.
4. I also find no substance in the second contention of Mr. Shamsuzzaman that the respondent by accepting foreign assignment had abandoned his lien on the permanent post held by him in Pakistan. On the contrary, there are indications to show that the respondent considered that he was to continue his relations with the Company subject to the terms of his temporary overseas employment. It may be mentioned that the foreign service agreement was between the appellant- Company and the respondent. This agreement provides an effective reply to the argument of Mr. Shamsuzzaman that the `Taff' project was a different Company and the appellant-Company was merely the Recruiting Agents of the said Company in Pakistan. The appellant-Company could not have entered into the foreign service agreement unless it controlled the foreign service assignment. Moreover, no plea was raised before the learned Labour Court by the appellants that they were mere Agents or Recruiting Agents of the Company at `Tad'. Reference may also be made to the Authority letter, dated 16-11-1977, addressed by the respondent to the Disbursing Officer of the appellant-Company while leaving Pakistan for foreign project assignment authorising his younger son to receive medical expenses of his family and other amounts on his behalf. A photostat copy of the tredical expenses, etc., has been produced showing the payment of these monies by appellant-Company to the nominee of the respondent. The items in the said extract cover the period from 26th March, to 19th September, 1978. Mr. Shamsuzzaman sought to argue that these amounts were paid by the appellant-Company on behalf of the fereign Company at `Tait" and in support of his contention he referred to the additional affidavit of the company's witness, Harmed Mohsin. The said affidavit, however, does not support Mr. Shamusuzzaman's contention. All that is stated in the affidavit is that the expenditure incurred upon the medical treatment of the respondent's family would be debited to the foreign project in which the applicant is employed. There is, therefore, nothing to indicate that either the medical expenses of the respondent's family in Pakistan were paid by a different Company at `Taff' or even that the appellant-Company paid these expenses on behalf of and as Agents of that Company.
5. The final contention of Mr. Shamsuzzaman was that the services of the respondent should be deemed to have been lawfully terminated by the letter of the appellant-Company, dated 20-6- 1978. This letter is important as on the one hand it cannot be considered to be a letter of termination of service and on the other hand it supports the view that I have taken that by transferring the respondent to the Peace Hawk V Project at `Tar the appellant-Company was not severing its relations with the respondent. The letter in question takes the position that the services of the respondent had been terminated under the foreign service agreement. I have already shown that the said foreign service agreement merely regulated the foreign assignment of the respondent and hence under it the services of the respondent with the appellant-Company in Pakistan were not terminated. Furthermore, if the services of the respondent stood terminated by reason of this foreign assignment, the appellant should have acted in accordance with the provisions of Standing Order 12, particularly clauses (I), (3), (4), (6) and (7). Since admittedly no such action was taken and apparently even the legal dues of the respondent were not paid to him then, since they have been referred to for the first time in the appellant-Company's letter, dated 28-6-1978, it is apparent that the services of the appellant were not terminated either when he joined the foreign assignment or on the completion of the foreign assignment or by the letter, dated 28-6-1978.
6. The upshot of the above discussion is that I find no merit in this appeal and would dismiss the same.