' ABDULLAH BALOCH, MEMBER.--- This appeal is directed against the Judgment dated 26-05-2015 passed by the 1st Labour Court Quetta whereby accepted the application under section 41 of Balochistan Industrial Relation Act, 2010 filed by the respondent.
2. Brief facts leading to appeal are that the respondent was working as Test Inspector at the Office of XEN (P&I) QESCO Quetta, later on vide Order bearing No,CEO/ QESCO/ DG (HR & ADMN)/ 1251224, dated 21-03-2014, was promoted along with three others employees as Junior Engineer (BPS- 17) and posted as SDO Operation Sub-Division QESCO Khuzdar-L Prior to the promotion the respondent/petitioner along with other promotees completed all codel formalities to the satisfaction of the appellants. The respondent also completed his B-Tec Hons with the permission of the appellants. In consequence of the promotion the respondent was drawing the pay to ihe promoted post, but surprisingly on 10th April 2014 the appellant No,2 illegally and unlawfully without any lawful justification held in abeyance the promotion of the respondent along with three others. It is further submitted by the respondent in his petition that despite of the aforesaid facts on 21-04- 2014, the appellants further directed the petitioner to perform as acting SDO. He further submitted that the appellant No,2 vide Order No, CEO/ QESCO/ DG (HR & Admn) 56392-400, dated 31-10-2014 restored the promotion of other two employees i.e, Muhammad Sadiq and Rehan Nazir at serial Nos.2 and 3, while held in abeyance the order to the extent of petitioner and discriminated the petitioner.
3. The petition filed by the respondent/petitioner was contested by the appellants/respondents on legal as well as on factual grounds wherein raised certain objections regarding maintainability of the petition and jurisdiction of the Learned Trial Court. It was further submitted by the appellants/respondents in their written statement that the respondent/ petitioner has not qualified for the post of the Junior Engineer (BPS-17) according to the required qualification as prescribed by the company. Out of the pleading of the parties the Learned 1st Labour Court, Quetta framed as many as following issues: "ISSUES:-
1. Whether this Hon'ble Court has jurisdiction to entertain the matter in hand?
2. Whether the petitioner was promoted as SDO after fulfillment of all codle formalities?
3. Whether the Order dated 31-10-2014 issued by the respondent No, 2 is according to Law?
4. Whether the petitioner is entitled for the relief claimed for?
5. Relief?
4. After framing of issues the Learned Trial Court directed the parties to adduce evidence. After recording evidence and hearing the parties, the Learned Trial Court allowed the petition filed by the respondent/petitioner and directed the appellants to restore promotion Order dated 21-03-2014.
5. I have heard the counsel for the parties and perused the record.
6. Mr. Mirza Luqman Advocate learned counsel for the appellants contended that the respondent/petitioner was working as Test Inspector (BPS-15) having 2 or 3 sub-ordinates under his command and control, his nature of duties are supervisory in nature and doesn't fall within the definition of workman and the Learned 1st Labour Court, Quetta has no jurisdiction to adjudicate upon the matter because the QESCO being company controlled by the Government of Pakistan has adopted the Service Rules of WAPDA and Services of the employees of the QESCO are governed by the aforesaid rules of WAPDA. He further contended that the promotion of the respondent along with three others were held in abeyance due to complaint on an anonymous letter received by the management whereupon a committee was constituted to conduct inquiry and on the recommendation of the committee the promotion of the respondent along with three others was held in abeyance and thereafter restored to the extent of two other employees. He further contended that the impugned judgment passed by the Learned 1st Labour Court, Quetta is suffering from misreading, non-reading of evidence and misappreciation of document, brought on record and liable to be set aside. He referred case law, 2015 SCM R 434.
7. On the other side Mr. Asadullah Advocate assisted by Mr. Malik Shah Jahan Advocate counsel for the respondent vehemently opposed the contention so raised by the learned counsel for the appellants and contended that the respondent was initially appointed as LS and thereafter promoted as Test Inspector, his nature of duties are manual and his services fall within definition of workman and no evidence brought on record in rebuttal by the appellants. He further contended that the respondent was permitted by the appellants and granted leave for taking admission in B- Tec in Mehran University and after passing B-Tec from the said university. The respondent was further gone through proper training on the approval of the appellants and after completion of all codel formalities the respondent along with three others was promoted by the selection committee vide Order dated 21-03-2014, but surprisingly, with mala fide intentions the aforesaid order was held in abeyance vide Order dated 10-04-2014. He further contended that during the course, respondent was further assigned acting charge of SDO QESCO Khuzdar vide Order dated 21-04-2015. He further contended that the earlier order wherein the promotion of the respondent along with three others was held in abeyance has been restored to the extent of Mr. Sadiq and Rehan Nazir appearing at Serial Nos.2 and 3 of the said letter vide order dated 31-10-2014, but the respondent was illegally discriminated by the appellants without any justification. The learned counsel for the respondent further contended that the appellants has been failed to brought any material evidence against the respondent before the Learned Trial Court and the Learned Trial Court has rightly accepted the petition filed by the respondent.
8. After hearing the arguments of the parties and perusal of record it reveals that the respondent/petitioner was initially appointed as LS and thereafter upgraded to the post of Test Inspector (BPS-15) and his duties were manual in nature and having no authority of hiring and firing. Even otherwise no evidence brought on record in rebuttal against his nature of duties by the appellants. Accordingly objection of the learned counsel for appellant regarding the status of the respondent as workman having no force, admittedly the services of the respondent falls within the definition of workman as provided under section 2(dd) of BIRA, 2010 as well as under section 2(i) of Industrial and Commercial (Employment Standing Order) Ordinance, 1968. The case law referred by the learned counsel is distinguishable from the case in hand.
9. The next objection raised by the learned counsel for the appellant regarding the jurisdiction of the Labour Court. It is worthwhile to mention here that in numbers of judgment passed by this Tribunal in the light of judgment passed by the Hon'ble Apex Court in PLD 2006 Supreme Court 602, relevant portion of Para 33 is reproduced as under: "Perusal of the above definition of 'Civil Servant' reproduced earlier indicates that at least three types of persons were excluded from the definition of 'Civil Servant'; firstly, those who are on deputation to the Federation from any Province or other Authority; secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are 'Workers' or 'Workmen' as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923)."
10. Since the QESCO has no Trans-provincial establishment more than on province, hence the services of the employees of the QESCO are governed by the Balochistan Industrial Relations Act, 2010, and Industrial and Commercial (Employment Standing Order) Ordinance, 1968 as such objection of the appellants having no weight and legal cover is hereby rejected and held that the Labour Court has jurisdiction to adjudicate upon the matter.
11. Now the moot question remains between the parties, whether the respondent was promoted along with three others after fulfillment of all required codel formalities and thereafter his promotion was held in abeyance and restored to the extent of his colleagues and he was discriminated?
12. Before parting the judgment it is pertinent to discuss and reproduce the relevant documents in respect of the promotion of the respondent which were duly issued by the appellants company.
The respondent was considered for promotion as Junior Engineer vide Office Order No, CEO/QESCO/M(HRM) 17626-29 dated 20-02-2014 along with three others for convenience the aforesaid letter is reproduced as under: "QUETTA ELECTRIC SUPPLY COMPANY LTD Office of the Chief Executive Office Zarghoon Road Quetta Cantt.
Tel: 9202211/9203309 NO. CEO/QESCO/M (HRM)/7626-29
1. SE Central Circle QESCO Quetta
2. SE Operation Circle QESCO Khuzdar 3, SE GSO Circle QESCO Quetta
4. Manager (P&E) QESCO Quetta Subject: Promotion of Upper Technical Subordinate Staff as Jr. Engineer (BPS-17). The following upper technical staff QESCO are to be considered for promotion is Junior Engineer subject to clearance of DPE/Promotion training and availability posts.
B.Tech: (Hons)
Sr.
NoName Father's NameDesign:Place of Posting Mehboob AliAbdul SultanLS-1 Operation Division Kalat Muhammad Sadiq KakarHaji Abdul GhaffarLS-I Operation Division Zarghoon Rehan NazirNazir AhmedLS-I P&E Directorate Abdul QadirMuhammad ArcharLS-I P&I GSO Quetta Please furnish the below mentioned documents in respect of above named officials immediately to this office but not later than 02-03-2014. a. ACRs for the last 05 X years b. Work and Conduct Report c. No enquiry/disciplinary case pending certificate ( from Am (Confd) QESCO) d. No AP/DP/IR pending certificate (from Dy: Chief Auditor) e. DPE/Promotion training clearance certificate f. No demand certificate ( From Finance Director QESCO) g. General Check comments from intelligence detachment QESCO Certificate to the effect that DPE/Promotion Training has not been cleared should also be supplied in respect of those officials who have not cleared the same as yet.
By: Manager (HRM) QESCO Quetta"
The same was produced before the Trial Court as exhibit P/2. The documents mentioned in the above letter was duly submitted by the respondent to the concerned department as well as documents mention with the above letter were produced before the Learned 1st Labour Court as exhibit P/3 to P/21 and the authenticity of the same were remain undisputed rather admitted.
13. The educational certificates of the respondent have already been got verified by the appellants from Mehran University of Engineering and Technology Jamshero Sindh and found correct vide exhibit P/6.
14. It is pertinent to mention here that the record further reveals that the respondent was duly permitted for taking admission in B-Tec course for two years by the appellant vide Office Order dated 06-06-2011, which was produced as exhibit P/13.
15. Accordingly after fulfillment of all codel formalities on the recommendation of the board the respondent was promoted by the appellants along with three others vide Order dated 21-03-2014, which is reproduced as under: "QUETTA ELECTRIC SUPPLY COMPANY LTD Office of the Chief Executive Officer, Zarghoon Road Quetta Cantt.
Tel: 9202552/9203309 NO. CEO/QESCO/DG (HR & Admn)/2512-25 21 March 2014 OFFICE ORDER
1. On the recommendations of Board, the under mentioned Upper technical Subordinates (B.Tech Hons) are hereby promoted as Junior Engineer (BPS-17) and posted as mentioned against each:- Sr.
NoName and Father's NamePresent PatinaPromoted as Proposed Posting I. Mehboob Ali S/O- Abdul SattarLS-I office of SSO QESCO KanakJunior Engineer (BPS-17)SDO Operation Division QESCO Mastung 2.Muhammad Sadiq KakarLS-I office of SDO QESCOJunior EngineerSDO Operation 5/0 Hail Abdul GhaffarMarriabad Quetta(BPS- 17) Sub Division QESCO Qilla Abdulalh 3.Rehan Nazir S/O Nazir AhmedLS-I office of Manager (P&E) QESCO QuettaJunior Engineer (BPS- 17)SDO Operation Sub- Division Gawalmandi Quetta 4.Abdul Qadir S/O Muhammad ArcharLS-I office of XEN (P&1)
QESCO QuettaJunior Engineer (BPS- 17)SDO Operation Sub- Division QESCO Khuzdar-1
2. The promotions are subject to the following terms and conditions:- i. If an Enquiry/Penalty or deviation appears at later stage, the competent authority/forum of QESCO will have the right to review the case and deal with as per rules. Ii. The officials so promoted will however not claim seniority over those who may otherwise be senior to them. Iii. The pay of the promoted officers will be fixed as per rules. Iv. The promotions are subject to verification of the Degrees from respective Institution, in case any deviation occurs, the promotions will be cancelled/withdrawn. v. The promote officers are advised that no political or any approach for their choice of posting be accepted. If any of them approaches or uses influence his promotion will be cancelled abinitio. Vi. The promotions are subject to the clearance of Departmental Promotion Examination (DPE), in case of not passing the said DPE the promotion will automatically stand cancelled.
1. The orders should be implemented immediately.
2. This is issued with the approval of Chief Executive Officer.
Abdul Ghani Chandio DG (HR & Admn)"
In pursuance of the aforesaid promotion Order the respondent was duly posted and assigned the duties of SDO QESCO Khuzdar and the appellants issued his pay slip w.e.f, 28-03-2014 for the said post which was produced before the Trial Court as exhibit P/16 and exhibit P/17.
16. For unforeseen reasons the appellants vide Order dated 10-04-2014 held in abeyance the earlier promotion order of all promotees for Junior Engineers, the same is reproduced as under: "QUETTA ELECTRIC SUPPLY COMPANY LTD Office of the Chief Executive officer Zarghoon Road Quetta Cantt.
Tel: 9202211/9202552 NO. CEO/QESCO/DG (HR & Adnm)/22626-48 Dated 10 Apr 2014 OFFICE ORDER
1. The order issued vide No,CEO/QESCO/DR(HR&Admn)/12512- 25 dated 21-03-2014 regarding promotion from UTS (B.Tech Hons) to Junior Engineers are hereby held in abeyance till further Orders.
This is issued with the approval of CEO QESCO.
(Abdul Ghani Chandio)
D.G (HR & Admn)
Copy to:
1. All Chief Engineers QESCO, Quetta.
2. Finance Director QESCO, Quetta.
3. All S.Ps QESCO, Quetta.
4. Project Manager (GSC)/Construction QESCO, Quetta.
5. XEN Operation Division Qilla Saifullah/Khuzdar/Kalat/City.
6. SO to CEO QESCO, Quetta,
7. PA to D.G (HR & Admn) QESCO, Quetta.
8. Officials Concerned.
9. Circulation/Master File
17. Despite of the fact the aforesaid Order dated 10-04-2014 was in field. The respondent was further assigned and posted to work as acting SDO Operation Sub-Division QESCO Mastung vide Order dated 21-04-2014 exhibited as P/2 before the Trial Court.
18. It is pertinent to mention here that the Order dated 10-04-2014 wherein the promotion order dated 21-03-2014 of the four employees along with respondent were held in abeyance has been restored to the extent of Mr. Muhammad Sadiq and Mr. Rehan Nazir vide Order dated 31-10-2014, while remain intact till further orders to the extent of promotion of respondent and one other. The aforesaid letter is reproduced as under: "QUETTA ELECTRIC SUPPLY COMPANY LTD Office of the Chief Executive Officer Zarghoon Road Quetta cantt.
Tel: 9203309/9202552 NO. CEO/QESCO/DG (HR & Admn)/56392-407 Dated: 31-10-2014 OFFICE ORDER
1. The promotion order issued vide No,CEO/QESCO/ ' DG(HR&Admn)/12512-25 dated 31.03.2014 in respect of the UTS (B.Tec Hons) to the post of Junior engineers which were held in abeyance vide Office Order No, CEO/QESCO/DG(HR&Admn)/22626- 48 dated 10-04-2014 are hereby restored to the extent of M/S Muhammad Sadiq and Rehan Nazir appearing at (Sr. Nos.2 and 3).
' The Office Order dated 10-04-2014 will remain in tact till further orders to the extent of the promotion of M/S Mehboob Ali and Abdul Qadir appearing at (Sr. Nos.1 and 4) of Office Order dated 31-03-2014.
3. This is issued with the approval of Chief Executive Officer.
' (Abdul Ghani Chandio) H.G (HR & Admn)
Copy to:-
1. All Chief Engineers QESCO Quetta.
2. Finance Director QESCO Quetta.
3. SE Central Circle QESCO Quetta.
4. XEN Operation Division QESCO City Quetta.
5. XEN Operation Division QESCO Sariao Quetta.
6. Officers concerned.
7. Cirulation/Master File.
19. Being aggrieved from the same the respondent duly approached the competent authority (appellants) through grievance notice dated 14-011-2014, but appellants failed to redress the grievance of the respondent/petitioner.
20. After thorough perusal of the aforementioned documents I have come to the conclusion that the order dated 10-04-2014 and Order dated 31-10-2014 are outcomes of mala fide intention of the appellants, without lawful justification, illegal, void abinitio and had rightly been set aside by the Learned 1st Labour Court, Quetta. Keeping in view as discussed above the learned counsel for the appellant has miserably failed to point out any material point of law and fact for interference in impugned judgment. Accordingly the appeal is dismissed and the impugned judgment passed by the Learned 1st Labour Court Quetta is maintained.
21. The parties are left to bear their own cost.
22. The copy of order along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
23. GIVEN under my hand and seal of the Court on 31st August, 2015.