' Muhammad Sadiq, Wireman, Sugar Mills, Serai Naurang through this petition under section 25-A
(4) of the Industrial Relations Ordinance has challenged the order, dated 21st May, 1975 of Project Manager Sugar Mills, respondent No, 1 whereby Abdur Rehman respondent No, 2 was promoted to the post of Electrician ignoring the seniority right of the petitioner. It is alleged by the petitioner that he was employed as Wire-man on daily wages in the Electrical Department of Sugar Mills, Serai Naurang on 27th February, 1965 while respondent No, 2, was employed as a Lineman in the said department of the Sugar Mills on 5th May, 1966. Both were confirmed on their respective posts on 19th March, 1969 with a pay scale of Rs, 170-11-302 per month and they were working on the said post during 1974-75 season. In that season the petitioner on the recommendation of the direct incharge Gulzar Muhammad, Electrical Foreman was proposed by the Selection Committee to be promoted as Electrician but the recommendation was not given effect to. The petitioner then alleged in the petition that respondent No, 2 though junior to him was promoted to the post of Electrician on 21st May, 1975 because he was holding the office of Vice-Presidentship in Workers'
Union of the labourers in the Sugar Mills and thus the seniority right of the petitioner was infringed for which a grievance notice was given to respondent No, 1, but to no effect. Hence the petition..
2. Both the respondents contested the petition and submitted their written statements. Respondent No, 1 in his reply to the petition admitted that petitioner was first appointed on 27th February, 1965 and he was first appointed on 5th June, 1966 and not 5th May, 1966 as alleged in the petition. He further admitted that the appointment was made on daily wages. He denied para. 2 of the petition and stated that petitioner was confirmed on 19th March, 1969 in grade 60-4-100-5-120 and later on promoted and given Grade of 170-11-302 on 16th March, 1973 whereas his grade on 19th March, 1969 was 115-6-175 and later on promoted and given the grade of 170-11-302 on 1st July, 1970. He admitted that he was Vice-President of the Workers' Union but denied that petitioner is senior to him because there is a difference between permanent appointment and grade.
3. Respondent No, 1 in his reply supported respondent No, 2 and justified impugned order. From the pleadings of the parties thus raised following issues were framed :
(I) Whether order of respondent No, 1, dated 1st May, 1975 declaring respondent No, 2, as senior to the petitioner and giving promotion to respondent No, 2, as Electrician is contrary to law, rules, regulations, settlement and practice in vogue and is liable to be set aside ?
(2) Whether petitioner is entitled to be promoted as Electrician with effect from 21st May, 1975 ?
(3) Relief ?
4. Parties produced their evidence which they wished to adduce in support of their respective contentions. Mr. Abdur Razzaq Khan, Advocate for the Petitioner, Umar Jan Khan, Advocate for Respondent No, 1 and Akbar Nawaz Khan, for respondent No, 2 addressed arguments. My findings on the issues in view of the evidence produced by the parties and arguments addressed at the Bar are as follows :-
5. Issues 1 and 2.--From the pleadings of the parties and the evidence produced in this case it is a proved fact that the petitioner was first appointed in the Sugar Mills in the Electricity Department on 27th February, 1965 whereas respondent No, 2 according to the petitioner was first appointed on 5th May, 1966 but according to respondent No, 2 he was first appointed on 5th June, 1966. S. M. Latif, Assistant Manager P. W. 1 stated that respondent No, 2 was first appointed on 5th May, 1966. Both were appointed on daily wages. It is also admitted fact between the patties that they were confirmed on 19th March, 1969. Thus, keeping in view the length of service from the date of first appointment petitioner is senior in service to respondent No,
2. The management has promoted respondent No, 2 to the post of Electrician vide impugned order, dated 21st May, 1975. Petitioner's contention is that he being senior was entitled to be promoted and that he was recommended for the promotion by his Incharge Gulzar Muhammad Khan, P. W. 6 and Selection Committee constituted for the purpose had endorsed this recommendation. According to him respondent No, 2 was given promotion because he was the Vice-President of the Workers' Union. On the other hand the contention of respondent No, 2 is that he is senior to the petitioner inasmuch as when he was confirmed on 19th March, 1969 he was given the Pay Scale 115-6-175 which was higher than pay scale given to the petitioner on the confirmation date. Now the question for determination would be as to whether length of service gives the seniority or the higher scale of pay should be considered for the purpose of seniority. This is the moot point in this case. In my opinion the seniority is always considered on account of length of service and not the scale of pay. The petitioner is senior to respondent No, 2 because he joined the service of the Sugar Mills in the Electrical Department on 27th February, 1965 whereas respondent No, 2 joined the service on 5th May, 1966. From the evidence brought on the record it appears that petitioner was recommended for promotion by the Incharge of the Department and recommendation was endorsed by the Selection Committee. Despite that petitioner was not promoted. This lends support to the petitioner's contention that respondent No, 2 was promoted because he was Vice-President of the Workers' Union in the Sugar Mills, Petitioner tried his best to prove that he was recommended for promotion by Selection Committee, but it is said to note that the Management withheld the relevant papers. Sahibzada Muhammad Latif, Assistant Manager first appeared as petitioner's witness as P. W. 2 and then as respondent's witness as R. W.
1. He was examined on 2nd February, 1977 as petitioner's witness, but his statement was left incomplete because he had not brought the entire record on that day. He was again examined on 18th February, 1977 and on that day to the recommendations of the Selection Committee in favour of the petitioner were not brought. The witness deposed that such recommendations were not available in the record. In the absence of the papers regarding the recommendations of the petitioner, Members of Selection Committee i. e. Abdur Rauf Shah, P. W. 3, Muhammad Azam Khan, P. W. 4 and Abdul Qayyum Shah P. W. 5 were unable to depose about their recommendations in favour of the petitioner regarding his promotion, however, they admitted that the Management had constituted a Selection Committee which considered the promotion cases of the employees of the Electrical Department of Sugar Mills, Serai Naurang Abdur Rauf Shah P. W. 3 stated on 18th February, 1977 that record of Selection Committee constituted by the Management was sent to the Management after their recommendations and that the record was to be kept permanently.
Muhammad Azam Khan, P. W. 4 also deposed in a similar way that the Management had constituted a Committee and he was one of the Members. He also did not remember the recommendations but was definite that the recommendations were sent to the Management. To the same effect is the statement of Abdul Qayyum Shah, P. W. 5 who acted as one of the Members of the Selection Committee. Even S. M. Latif. Assistant Manager, admitted in the cross-examination when he appeared as R. W. I that he was one of the Members of the Selection Committee which recommended the names of the employees for promotion. He further admitted that the record of the Selection Committee is a permanent record and is never destroyed. From all this evidence the only conclusion which can be arrived at is that the Management has deliberately withhold the recommendations of the Selection Committee that the truth may not come to light and their mala fide may not be exposed. I, there- fore, believe the petitioner in his contention that he was recommended for promotion by the Selection Committee. Gulzar Muhammad Khan P. W. 6 was produced to show that be had recommended the name of the petitioner for the post of electrician.
He was the Incharge of the Elecricalcal Department during 1974-75. As against this evidence, respondent No, 2 supports his promotion on the ground that on the date of promotion he was getting higher grade of pay. I am unable to accept this contention of respondent No, 2 for the simple reason that his first appointment was made subsequent to the first appointment of petitioner and secondly that petitioner's case for promotion was recommended by his incharge and Selection Committee, constituted by the Management. His assertion that he is Matriculate and Diploma Holder is of no consequence in view of the settlement arrived at on 25th May, 1970 photostat copy kept in this Court perused. This settlement shows that in reply to demand No, 4 agreement arrived at was as follows :-- "In full and final settlement of this demand, the Management agrees to give due consideration to the candidate locally available for promotion against vacant posts on the basis of merits and seniority-cum-fitness basis."
The petitioner's case when looked at in the light of this agreement seems to be stronger than the case of respondent No,
2. The petitioner is senior to respondent No, 2 and his case having been recommended by the Selection Committee points towards his fitness. His own Incharge Oulzar Muhammad Khan, P. W. 6 has proposed his name for promotion to the Selection Committee. What else the Management required for promotion of the petitioner. I am inclined to accept the petitioner's contention that Management has promoted respondent No, 2 because he was acting as Vice-President of the Workers' Union.
Mr. Umar Jan Khan, Advocate, cited PLD 1974 Kar. 102, in support of his arguments that it is employer alone who can know about the fitness of employees and that seniority alone is no consideration for promotion. In this very judgment, his Lordship held that seniority alone is no ground for promotion provided it is shown that Management acted mala fide. In the present case as discussed above mala fide of the Management is proved. Petitioner has succeeded in establishing his case and thus I can safely declare the impugned order, dated 21st May, 1975 promoting respondent No, 2 to the post of electrician against the settlement and liable to be cancelled and instead petitioner is entitled to be promoted as electrician with effect from 21st May, 1975. These two issues are, therefore, decided in the affirmative.
In the result petition is accepted, impugned order, dated 21st May, 1975 is set aside and it is ordered that petitioner stands promoted as Electrician with effect from 21st May, 1975 with all the benefits of the post. Two copies of the judgment are to be sent to Provincial Government as required under section 37 of Industrial Relations Ordinance.