1. AWARD MD. NURUL HUDA (CHAIRMAN)- This case arises out of an application under section 25 of the Fast Pakistan Employment of Labour (Standing Orders) Act, 1965 submitted by Mr. Khorshed Alam praying for setting aside the order of termination of his services under the second party, Pakistan Shell Oil Co., Ltd. It is alleged that the petitioner vas acting as a Radio Operator tinder the second party since 3-12-1966 and that there were two other Radio Operators, who were junior to him. The second party by a letter dated 20-12-1969 terminated the services of the petitioner and that order of termination is in vi3lation of section 13 f the Standing Order a Act, 1965. The first party submitted a grievance application on 31-12-1969 and received reply` to the same on 3-1-1970, In the said reply some justifi--cations were offered for retrenching the petitioner and for retain--ing in service a junior operator in preference to the petitioner. It is submitted that the retrenchment of the petitioner being against provisions of section 13 it is illegal and the petitioner has accordingly prayed for declaring the order of termination of his services as illegal and for setting aside the same.
2. The second party while admitting that the petitioner was the senior most of the three Radio Operators contends, inter alia, that the termination of the services of the Petitioner in preference to a junior Radio Operator Abul Basher Chowdhury has not offended against the provisions of law, for there are reasons for retention of the junior hand, who is said to be better qualified than the petitioner. The written objection has depended some of the material allegations of the petitioner embodied in his appli--cation.
3. We have got to consider, whether, the order of termination of the services of the petitioner is illegal and liable to, set aside and we may also consider what benefits the petitioner maybe alternatively entitled to.
4. DECESION Both the parties have led some oral evidence. The said evidence and the pleadings of the parties clearly indicate that there were 3 Radio Operators when the petitioner. Khorshed Alam was retrenched from service. The fact is also admitted that he was the senior-most of the three. In a particular category of ' employees some one of them may have better degrees; all however, possessing required qualifications. The ordinary rule is that in case of retrenchment due to any exigencies, the person last appointed is to be retrenched. This is ordinary so under the Standing Orders Act, 1965. In case of Government employees, however, the retrenchment of the last man is a must. In the instant case the violation of the provisions of sections 12 and 13 of the Standing Orders Act, 1965-has been alleged. . Section 12(a) lays,down that the worker shall be given one month's notice in writing indicating the reasons for retrenchment, or he should be paid wages for the period of notice. This is a pre-requisite for retrenching an employee who has been in continuous service for more than one year.. There is nothing to show that there was any notice to the petitioner about the proposed retrenchment. Then again, section 13 reads as follows:- "13. Where any worker is to be retrenched and he belongs to a particular category of workers, the employer shall, in the absence of any agreement between him and the worker fin this behalf, ordinarily retrench the worker who was the last person to be employed in that category, unless for reasons to be recorded, in writing, the employer retrenches any other workers."
5. The expression, "shall ordinarily retrench the worker last employed" indicates that the retrenchment of the last man is the general rule. If any exception is made in the general rule, the reasons for the same are to be recorded in writing. In the instant case, the order companied of dated 20-12-1969 does No,1 ascribe any reason as to why the petitioner who is senior to Abul Basher Chowdhury has been retrenched in preference to Mr. Abul Basher Chowdhury. There is absolutely no reason described for retaining a junior hand in preference to the senior one. There has been therefore, a flagrant violation: of the provisions of section 13 of the Standing Orders Act. Subsequently on receipt of the grievance petition some justifications were given for retaining Abul Basher. The subsequent reason for retention are not in compliance with the provisions of section 13, which section clearly indicates that the reasons should be recorded in writing in the order of retrenchment itself. By oral evidence something about the petitioners performance of the work has been sought to ba adduced. The fact, however, remains that no adverse remark was ever communicated and he did not also receive any warning in writing as has been ' admitted by the witness, who has, appeared on the side of the second party.
6. That being the position, we cannot presume that the service recorded of the petitioner is unsatisfactory. We are, not concerned so much with the respective qualification of the petitioner and Abul Basher Chowdhury. It is, however; an admitted fact that the petitioner has been working under the second party since December 1969. His abrupt retrenchment without notice and without assigning reasons as required under the provisions of law as hinted above is illegal. That is also the view of both the learned Members of the Court, who have, however, suggested for payment of termination benefits instead of re-instatement of the petitioner in service. I, however, consider on the materials before me that it is a fit case for re--instatement. True it is that the order for re- instatement is discretionary of the Court, but when I find that the petitioner who is the senior-most of the three Radio Operators 'and whose service record has not been demonstrated to bad and in view of the flagrant violation of law in retrenching the services of the petitioner, I think, the order of re-instatement in this case shoul be the most judicious order.
7. For the reasons stated above, I declare the order complained of dated 20-12-1969 retrenching the services of the petitioner as illegal and without proper authority and the said order is hereby set aside and the petitioner, Mr. A. H. M. Khorshed Alam is ordered to be re-instated in his service as Radio Operator under the second -party, Messrs. Pakistan Shell Oil Company Limited, with all the benefits attached to the same including all back wages till this order is given effect to.
8. The second party to give effect to this order within one month from today.