' The services of the respondent, who was employed as a waiter in the Village Restaurant, the appellant herein, were terminated on 15-5-1979, on the alleged ground of reorganization in the appellant establishment. The respondent did not serve a grievance notice upon his employer within the statutory period in respect of the termination of his services, but on 3-12-1979, he served a grievance notice alleging that he had come to know that the appellant establishment had employed 2 persons, by name Yousuf and Abdul Waheed, who after working for a short time as Pantry man and Assistant Store-keeper, were working as waiters. He consequently asked to be taken back from the date that the said persons had been employed in the appellant establishment. As the appellant establishment declined to re-employ the respondent, he preferred a grievance petition before the learned Labour Court on 14-1-1980. The learned Labour Court came to the conclusion that Yousuf and Abdul Waheed, though ostensibly employed under different designations, were really working as waiters in the appellant establishment. It accordingly ordered the re-instatement in service of the respondent. However, the respondent was held to be entitled to wages only from the date of the order. The appellant establishment has come up in appeal against the above decision of the learned Labour Court.
2. I have heard Mr. Mahmood Ghani, the learned Representative of the appellant establishment, while the respondent appeared in person.
3. As already pointed out, since no grievance notice within the statutory period was served by the respondent upon the appellant establishment in respect of the termination of his services, the order terminating the respondent's services cannot be challenged in these proceedings. The respondent, therefore, has based his case entirely on the fact that within one year of the termination of the services the appellant-establishment had employed 2 other persons by name Yousuf and Abdul Waheed, who were made to perform the duties of waiters. In support of his contention, the respondent examined himself and Raza, the President of the Workers' Union in the appellant establishment. Now, as regards the respondent himself, his evidence is of little assistance on the point whether Yousuf and Abdul Waheed were employed as waiters in the appellant establishment, for in his grievance notice he has stated that he learnt that after being appointed and working for short time as Pantryman and store-helper respectively, they were made to work as waiters. The respondent's evidence in this behalf thus appears to be hearsay as he has no personal knowledge of the fact whether the said 2 persons were actually working as waiters in the appellant establishment. As regards witness Raza, who is the President of the Workers' Union in the appellant establishment, although he has stated that Yousuf and Abdul Waheed were taken on work as waiters in the appellant establishment, he has conceded that they were designated as Pantryman and store-helper respectively. Furthermore, although according to him they were made to work as waiters since October, 1979, it appears strange that he did not complain against the Management to the Labour Welfare Department or even inform the respondent, who had been the Vice- President of the Workers' Union. It may also be pointed out that there appears to be an important contradiction in the testimony of the respondent and witness Raza. According to the respondent, Yousuf had worked as Pantryman and thereafter he was made to work as waiter, while Abdul Waheed worked as a store-helper for about a month and thereafter was made to work as waiter, while according to Rua, though the said persons were engaged as Pantryman and store-helper, they were actually made to work as waiters only. Since the appellant establishment vehemently disputed the fact that the said 3 persons were made to work as waiters the respondent ought to have examined one or both of them, but he failed to do so. The appointment letters of Yousuf and Abdul Waheed as also the Attendance Register maintained in the appellant establishment show that Yousuf was employed as Assistant Pantryman on a salary of Rs, 265 while Abdul Waheed was engaged as Assistant Store-keeper on a salary of Rs, 300 per month. As against this, the salary of waiter in the appellant establishment was only Rs, 250 per month. It is unlikely that the appellant establishment would have engaged these 2 persons on much higher salary if it intended to take work of only waiters from them.
4. The respondent was entitled to re-employment, and not re-instatement as directed by the learned Labour Court, only if the appellant establishment had employed persons as waiters within 12 months of the termination of services of the respondent. Although admittedly the appellant establishment had employed other staff within this period, the said staff did not belong to the category of workmen to which the respondent belonged. Even if Yousuf and Abdul Waheed were occasionally, due to excessive rush of work or other cause, made to work as waiters, this would place them in the category of waiters to which the respondent belonged. It is only when the employer proposes to take into service persons belonging to the same category to which the retrenched workmen belonged, that the latter have the right under Standing Order 14 to be re- employed, provided that the re-employment is within one year of the termination of their services.
In the instant case, I have taken the view that Yousuf and Abdul Waheed were not employed in the category to which the respondent belonged and that further there is no satisfactory evidence to establish that they were employed or made to work as waiters.
5. For the reasons stated by me above, I would set aside the decision of the learned Labour Court and allow the appeal.