' In this Constitutional petition the petitioner has called in question the order dated 26-4-1989 passed by the Punjab Labour Appellate Tribunal, Lahore, whereby the appeal filed by the respondent No,3 against the order dated 28-2-1989 passed by the Presiding Officer of the Punjab Labour Court No,9, Multan has been accepted.
2. The facts giving rise to this Constitutional petition shortly stated are that the petitioner filed petition under section 25-A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court No,9, Multan alleging that he was appointed as Clock Winder in Grade-I. On the introduction of NSP scales the employees falling in his class were placed in NSP-5 which right was denied to him, therefore, a prayer was made that he be placed in NSP-5 with effect from 1972 and be paid the pay accordingly including the arrears of pay. This petition was contested by respondent No,3.
3. The question of placing the petitioner in NSP-5 was dependent on the question whether as Clock Winder in Grade-I he was skilled staff. The petitioner when appeared as his own witness stated that his duty was to maintain and repair the Clocks and that it was a skilled job. He also stated that he had been repairing and maintaining the clock being run on electricity. The respondent-Railways examined Rashid Ahmed, the Head Clerk as RW.1 who in his cross-examination admitted that the Clock Winder is skilled staff. On the other hand Railways produced evidence in its effort to show that the only Clock Winders in Grade-II were skilled staff and not the Clock Winders in Grade-I.
4. The learned Presiding Officer of the Punjab Labour Court No,9 after thorough, careful and elaborate appraisal of evidence as also the Pakistan Railways Personnel Manual Volume-I recorded a finding that the petitioner was a skilled staff, therefore, according to the decision of railways as contained in Ex.R.1/A the posts of Skilled Staff in RNSP 3, 4 and 5 having beeii abolished and treated in NSP-5, the petitioner was entitled to be placed in NSP-5 with effect from 1-5-1979 and entitled to pay accordingly alongwith the arrears. The petition moved by the petitioner was accepted through order dated 28-2-1989. This order was assailed in appeal by the Divisional Superintendent Pakistan Railways, Multan/respondent No,3 before the Punjab Labour Appellate Tribunal, Lahore which has been accepted through order dated 26-4-1989. It has been held that the petitioner had not brought on record any duty roster to show that the repair of clocks was included in his duties and that he had been actually repairing the clocks, as such, it was presumed that his duty was only to wind the clocks which did not require any skill though repairing of clock and watch required skilled. On this account the petitioner was held to be not entitled to be placed in NSP-5.
5. I have examined the reasonings given by the Punjab Labour Appellate Tribunal and find that the same are based on misreading of the evidence as also conjectures and surmises. As observed above the petitioner when examined as his own witness categorically stated that his job was to repair clocks and he had been A doing so. There was no evidence produced by the Railways to rebut the said assertion which was brought on the record through the evidence of the petitioner himself. Even RW.1 produced by the Railways admitted that the petitioner was a skilled staff. The finding that the winding did not require any skill is also based on conjectures and surmises.
6. Learned counsel for respondent No,3 failed to satisfy that the findings of the Punjab Labour Appellate Tribunal are based on evidence. The statement of RW 1 has been ignored by saying that the said witness could not declare the petitioner as skilled staff. It was not the question of declaring by R.W. 1 but an admission which must have been made keeping in view by the witness the actual duties to be performed by the petitioner i,e, repair of clock etc. The learned Presiding Officer of the Punjab Labour Court based his finding on the evidence as also the Manual which have not been duly considered by the Punjab Labour Appellate Tribunal. The logical basis on which the Presiding Officer of the Punjab Labour Court decided the case have not been dealt with by the Punjab Labour Appellate Tribunal.
7. Learned counsel for respondent No,3 submitted that the petitioner was appointed as Clock Winder in Grade-I which automatically meant that he was not skilled staff as the Clock Winders appointed in Grade-II were skilled staff. There is no basis for advancing this argument because in Ex.R.1/A it has been mentioned that the posts of skilled staff in RNSP, 3, 4 and 5 had been abolished and they had been placed in NSP-5. When questioned learned counsel for respondent No,3 admitted that as a Clock Winder in Grade-I the petitioner was placed in RNSP-3. It appears from Ex.R.1/A that there was skilled staff in Grade 3, 4 and 5 which were abolished and that skilled staff was brought in Grade 5 which shows that merely because the petitioner fell in RNSP-3 as Clock Winder in Grade I as such he could not be treated to be skilled staff. The argument is, therefore, repelled.
8. Learned counsel for respondent No,3 faintly argued that the appointment/promotion as Clock Winder in Grade-II which is in NSP-5 could not be claimed as a matter of right as the promotion to the said grade was to be made on the basis of determination of fitness of the person by the authorities. This argument too has no substance inasmuch as according to the decision as contained in Ex.R.1/A the posts of Skilled Staff in RNSP 3, 4 and 5 were abolished and they were brought in NSP-5, therefore, it is a case where the petitioner had become entitled as a matter of right to be placed in NSP-5 and became entitled to remuneration accordingly with effect from 1-5- 1979 which relief was rightly granted to him by the Punjab Labour Court. The order passed by the Punjab Labour Appellate Tribunal dated 26-4-1989 for the foregoing reasons suffers from illegality and cannot be sustained, as the same has been rendered as without lawful authority.
9. This writ petition is accepted. The order dated 26-4-1989 passed by the Punjab Labour Appellate Tribunal is hereby declared to have been passed without lawful authority and of no legal effect and