HAFIZ ABDUR REHMAN ANSARI (CHAIRMAN).--- The appellant-department has filed the instant appeal before this Court against judgment dated 7-2-2010 passed by learned Presiding Officer, Labour Court No,9, Multan whereby learned Presiding Officer accepted the grievance petition of the respondent/petitioner and directed the appellant-department to reinstate the petitioner/respondent in service with all back-benefits.
2. The brief facts of the instant appeal are that respondent/ petitioner was appointed as Assistant Librarian against post of Artist BPS-12 on Ad hoc basis on 24-1-1990 by respondent No,1 almost after one year his service was regularized on the recommendation of Departmental Promotion/ Selection Committee by respondent No,2 vide order dated 22-1-1991. The respondent/ petitioner alleged in the grievance petition that he performed his duties to the entire satisfaction of his superior officers and no complaint of any sort exists in his service record. He further alleged in the grievance petition that vide office order dated 6-11-1990 he was transferred from the office of Agricultural Engineer (F&W) AMRI, Multan to Library and in addition to the charge of Librarian, he was also given charge of photographer of AMRI, Multan. He further alleged that he was elected as Joint Secretary of Insaf Union Zarai Tehqiqati Idara Brai Macheeni Kasht AMRI Multan. Subsequently, after regularization one Syed Musawwir Hussain Naqvi President Labour Union Agriculture Mechanization Research Institute Multan (CBA) moved an application to the Director General Agriculture Field Punjab Lahore on 26-8-2004 to the effect that the petitioner/ respondent had been illegally appointed as Assistant Librarian. The said application was forwarded to Director Agriculture Mechanization Research Institute, Multan vide letter dated 12-10-2004. He further alleged in the grievance petition that on the said application respondent No,1 issued a show-cause notice to the petitioner/respondent on 31-3-2005, which was challenged by the respondent/petitioner before Punjab Labour Court No,9, Multan, the said grievance petition was dismissed as withdrawn vide order dated 20-5-2006. It is further alleged in the grievance petition that vide order dated 20-5-2006 he was removed from service on the ground that his appointment was illegal, defective and in violation of Rules. The said removal order has been assailed by the espondent/petitioner in the grievance petition on the ground that he has been victimized due to Trade Union activities without conducting regular enquiry against respondent/petitioner and without providing any opportunity for personal hearing. It is alleged in the grievance petition that after 16 years of his unblemished service, the appellant- department was not competent to declare his appointment as illegal after his regularization. It is alleged in the grievance petition that on his application he was appointed as a Assistant Librarian against the post of Artist and during the course of employment he improved his qualification by passing Diploma in Library course. It is alleged in the grievance petition that application against him was filed by respondent No,3 due to his Trade Union activities and respondent No,2 removed the respondent/ petitioner from service vide impugned order dated 21-12-2006 illegally and thereafter respondent/petitioner filed grievance petition.
3.The grievance petition was resisted by appellant-department, written statement was filed by appellant-department and some preliminary objections were raised i,e, respondent/petitioner is not workman and AMRI, Multan is working under Government of Punjab and is not earning department, so Labour Court lacks jurisdiction to entertain the grievance petition and petition is not maintainable. On facts some contents of the grievance petition are admitted in the written statement while some other facts are denied. Syed Musawwir Hussain Naqvi also filed written statement as he was also impleaded which he admitted that he filed complaint against respondent/petitioner. Both the parties appeared before Punjab Labour Court and produced their documentary evidence as well as oral evidence. The respondent/ petitioner entered in witness box as PW-1 and tendered documents i,e, affidavit Exh.P.l, copy of order dated 21-12-2006 Exh.P.2, Photocopy of show-cause notice dated 31-8-2005 Exh.P.3, copy of application dated 26-8-2004 by respondent No,3 Exh.P.4, copy of letter dated 12-10-2006 Exh.P.5, copy of office order dated 24-1- 1990 Exh.P.6, copy of order dated 28-1-91 Exh.17. Copy of certificate of registration of Insaaf Union AMRI, Multan Exh.P.8, copy of letter dated 6-3-2003 Exh.P.9 and name of the petitioner as Joint Secretary Exh.P.9/1, copy of order dated 6-11-1990 Exh.P.10, copy of letter dated 10-12-1990 Exh.11, copy of letter dated 23-4-2003 Exh.P.12, copy of order dated 5-5-2004 Exh.P.13, copy of Petition No,279 of 2005, Exh.P.14, Copy of reply in Petition No,279 of 2005 Exh.P.14/1 and copy of order dated 20-5-06 Exh.P.15. On the other hand Mr. Altaf Hussain Superintendent Office of Director AMR1 (Agriculture Mechanization Research Institute. Multan appeared on behalf of respondents before court and tendered documents i,e, Authority letter No,2027 dated 8-7-2011 Exh.R.1, Attested copy of application Exh.R.2, copy of order dated 24-1-1990 Exh.R.3, copy of office order dated 24-1-1991 Exh.R.4, copy of application filed by Syed Musawwir Hussain Naqvi Exh.R.5, copy of letter dated 12- 10-2004 Exh.R.6 and letter dated 27-10-2004 Exh.R.7 in support of his contentions.
4. Learned Presiding Officer, Punjab Labour Court No,9, Multan accepted the grievance petition of the respondent/petitioner and set aside the order dated 21-12-2006 and directed the appellant- department to reinstate the service of the respondent/petitioner with all back-benefits. Hence, instant appeal before this Court.
5. Learned counsel for appellant contends that initial appointment of the respondent/petitioner was made illegally through political influence of the Minister of that time. On the complaint of Syed Musawwir Hussain Naqvi, he was removed from service after holding regular enquiry. Learned counsel further submitted that respondent/ petitioner was not workman according to the definition of workman under Labour Laws such grievance petition before Punjab Labour Court No,9, Multan was not maintainable. Learned counsel further submitted that Government of Punjab was not impleaded in the grievance petition and violation of Article 174 of the Constitution of Pakistan and 79 of C.P.C. Was violated hence grievance petition was not maintainable. Learned counsel further submitted that impugned judgment dated 7-2-2012 is based on surmises and conjectures.
Learned counsel further submitted that impugned judgment dated 7-2-2012 is not speaking judgment and learned trial court has not applied his judicial mind to the facts of the case. Learned counsel further submitted that respondent/ petitioner was Government Servant, he should have knocked the door of Punjab Service Tribunal instead of Punjab Labour Court for redressal of his grievance.
6. Learned counsel for the respondents/petitioner fully supported the impugned judgment dated 7- 2-2012. Learned counsel further submitted that respondent/petitioner was made scapegoat on the complaint of rival Trade Union (CBA) on account of his lawful Trade Union Activities, both Trade Unions are duly registered by the Registrar of Trade Union. Learned counsel further submitted that respondent/ petitioner was appointed as Assistant Librarian against post of Artist in BPS-12 and subsequently, after near about one year his service was regularized by departmental Promotion Committee/Selection Committee. Learned counsel further submitted that after regularization, the employee could not be removed from service without issuance show cause notice and regular enquiry and without providing opportunity for personal hearing to rebut the allegations made against him. Learned counsel further submitted that even, if it is admitted appointment was illegal and if no action is taken against appointing Authority for illegal appointment, then such appointment cannot be cancelled. Learned counsel for respondent/petitioner placed reliance on 2006 SCM R 678 titled as Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulifqar Ali.
7. I have heard the arguments of both the parties at length and perused the record minutely.
8. The perusal of record shows that nothing is brought on the record in evidence by the appellant- department, proceedings of domestic enquiry held by appellant-department as alleged by the department in the complaint of Syed Musawwir Hussain Naqvi. Copy of show-cause notice and order dated 21-12-2006 are exhibited before trial court. There is no documentary evidence on the record who was appointed Enquiry Officer to probe allegations against the respondent/petitioner and proceedings of the enquiry are not brought on the record which reveals that respondent/ petitioner is condemned, unheard which is not permissible in the eye of law. I follow the dictum laid down in 2006 SCM R 678 by judgment by the Hon'ble Supreme Court of Pakistan wherein it is held that such illegal appointment cannot be cancelled unless penal action was not taken against the Appointing Authority. The objection of the learned counsel for appellant-department that impugned judgment/order is not speaking judgment is frivolous; the impugned judgment is very much elaborated. Learned Presiding Officer, Punjab Labour Court No,9, Multan has discussed each and every aspects of the case and cited ample citations of Hon'ble Supreme Court of Pakistan. The contentions of the learned counsel for respondent appears correct that respondent/petitioner was ID workman as the respondent/ petitioner was appointed against the post of Artist for the period of one year (Exh.R-3). The work of Artist is always manual in nature, as the Artist makes caricature, with his own hands. Subsequently, respondent/petitioner was shifted to Librarian. It was also manual work to place the books etc. In shelves and sorting out the books, as such on account of manual work, so respondent/petitioner is a workman, although respondent/petitioner was in grade BPS-12 as Assistant Librarian against the post of Artist. From the evidence on record, it appears that respondent/petitioner was workman in the appellant-department.
9. In view of the above discussion, the Learned Presiding Officer Labour Court No,9, Multan rightly passed the judgment dated 7-2-2012 in which there is no flaw or infirmity which is hereby upheld.