This is an appeal against an order of the learned Chairman of the Second West Pakistan Industrial Court, Karachi, dated the 24th of October 1969. The impugned order was passed on application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance) whereby the learned Chairman dismissed the applica--tion of the appellant on the ground that the termination of the services of the appellant was "(terminated simpliciter)"
The facts giving rise to the present appeal briefly put are these.--
2. The appellant was originally in the Khairpur Transport Service. After amalgamation of Khairpur in West Pakistan the services of the appellant, who was Inspector at that time, were transferred to West Pakistan Road Transport Board on his existing terms and conditions of Service. This was done by an order of Government of West Pakistan dated the 1st of September 1958. The appellant continued in the Government Transport Service till the 15th of December 1967, when by an order of the same date his services were terminated on the ground that the posts of Inspectors/Checkers of G. T. S., Sukkur have been abolished with effect from the 15th of December 1967. It would be necessary in order to understand the order abolishing the posts of the Inspectors and Checkers to reproduce a portion of the order of the Traffic Manager, R. T. C., Lahore dated the 2nd of November 1967. It reads as under:-- -- "In accordance with the decision of the Road Transport Corporation, arrived at in its meeting held on 21-5-1966, it has been decided, that the New Scheme of Checking Staff should be implemented in G. T. S., Sukkur w.e.f.. 16th December 1967. All posts of Chief Inspectors, Inspectors/ Checkers sanctioned for G. T. S., Sukkur are here by abolished w.e.f. 16-i 2-1967."
There also appears a note under the signature of the Traffic Manager to the above order. It reads as under:- "The District Manager, G. T. S., Sukkur. The incumbents of the posts of Chief Inspectors, Inspectors/Checkers etc., of his service should be reverted to their next junior posts and the services of those who were directly appointed should be termi--nated in accordance with the terms and conditions of their service appointments."
Mr. Mehboob Rizvi has laid great emphasis on this note which I will refer to when I deal with his contention.
3. On 15th of December 1967, the services of 8 Inspectors and 2 Checkers were terminated including the appellant. On the same day, however, it appears from Annexure 'B' which has been filed before me that out of 10 persons 8 were appointed as Traffic Assistants. The admitted position is that the pay of Traffic Assistants, is the same as that of Inspectors. There is nothing on the record before me to show as to why the appel--lant and one Firasat Ali could not be absorbed as Traffic Assistants at is also useful to mention at this stage that by an order dated 18th of January 1968, Annexure `D' before me the 8 persons who were absorbed as Traffic Assistants were given the benefits of their past service in respect of pay, leave, seniority and promotion.
4. Firasat Ali, Inspector, whose services were terminated on December 15, 1967, filed a suit for declaration that the termination of his services were illegal and for injunction restrain--ing the G. T.
S., to terminate his services. The suit was decreed on the 27th of February 1969. The admitted position is that Firasat Ali was taken back in service after February 1969, as Traffic Assistant.
5. The learned Chairman of the Industrial Court rightly came to the conclusion on the material before him that the termination of the services of the appellant was "termination simpliciter" and, therefore, no violation of section 37 of the repealed Ordinance took place. On the material produced before me, which was not in the knowledge of the appellant when he prosecuted his application under section 38 of the repealed Ordinance I have taken a different view. Mr. Amman-- ullah Qureshi, the learned Representative for the appellant has urged before me that the order terminating the services of the appellant was arbitrary inasmuch as of the 10 persons who were discharged from service 8 were retained as Traffic Assistants on the same day namely, December 15, 1967. It is submitted that mere change of name from Inspector to Traffic Assistant was not material as the pay and conditions of service was the same. In this connection he referred to Annexure `D' dated 18th of January 1968, whereby 8 persons retained as Traffic Assistants were to get the benefits of their past pay, leave, seniority and promotion. In this connection it was also sub- -mitted that the arbitrariness of the order is obvious from the fact that there is nothing on the record to show as to wiry the appellant, who was the senior-most of the 8 persons was not absorbed in the service
6. Mr. Mehboob Rizvi, the learned Representative for the G. T. S., submitted that the appellant having been directly appointed as Inspector could not be absorbed in service under the order dated the 2nd of November 1967. -Under that order, which had already been mentioned earlier, the Inspectors who were directly appointed, their services were to be terminated in accordance with their service appointments. In the first place there is nothing before me to show as to what was the term of appointment of the appellant: In the second place there is nothing before me to show as to why any distinction was made between the appellant and the other 8 Inspectors who were retained in service as Traffic Assistants under the Order dated 15th of December 1967. If the order relied upon by Mr. Mehboob Rizvi is to be literarily applied the 8 persons who were retained should have been reverted their next junior posts. On the other hand they were not reverted but retained on the same emolument as that of Inspector. The order, appointing the 8 persons as Traffic Assistants and ignoring the appellant, who was senior-most of the 8 persons retained as Traffic Assistants, was clearly arbitrarily.
7. Mr. Rizvi contended that there was no violation of the provision of section 37 of the repealed Ordinance and therefore the appellant has no case. There is not much force in this contention.
Under section 37 of the repealed Ordinance the terms and conditions of the services of the appellant could not be altered or changed to his disadvantage during the pendency of an Industrial Dispute. One of the terms of service of the appellant as contained under section 7 of the Road Transport Workers Ordinance, 1961 was that his services could not be terminated without sufficient cause. I would hold that the services of the appellant were terminated without sufficient cause. The effect of the two orders namely the one terminating, the services of 8 persons and retaining the same persons by an order of the same date and terminating the services of the appellant who was senior-most of the 8 persons was without sufficient cause or reason. The order, therefore was arbitrarily so far as the appellant was concerned. In this connection in order to emphasize hog, arbit--rary the order of the respondent was I may refer to Annexure `C' dated the 26th of December 1968. Under this Order 13 more persons were promoted as Traffic Assistants.
There is nothing on the record to show as to why the appellant could not be absorbed at least from that date as Traffic Assistant. It is notice-- able that the record of the appellant was good. This fact appears from the averment made by the appellant, which has not been denied by the respondent.
8. On 19th of February 1969, when the matter came up for final disposal, Mr. Mehboob Rizvi prayed for adjournment on the ground that the matter is likely to be compromised between the parties. I adjourned it for today. It is again requested on the basis of a telegram received from G. T. S.,Sukkur that the matter be adjourned. I do not see any reason why the matter should be adjourned. The G.
T. S., Sukkur, had sufficient time to consider the case of the appellant; in the light of very clear facts which was well within his knowledge. It seems to me that the G. T. S., Sukkur desires to prolong the anxiety of the appellant.
9. I have come to the conclusion that the order terminating the services of the appellant on 15th December 1967 was arbi--trarily and was only a cover to do away with the services of the appellant on the ground that there was an abolition of the posts of Inspectors. That in fact the posts of Inspectors have not been abolished as they were all absorbed in different names namely as Traffic Assistants on the same pay and condition of service. For these reasons, I would hold that there was violation of the provision of section 37 of the repealed Ordinance and that the appellant is entitled to be re-instated to his post from the date when his services were illegally terminated by the Government Transport Servile, with all back benefits.