The learned Punjab Labour Court No. 5, Sargodha, presided over by Mehr Ahmad Yar Lali, on 3-8- 1993, dismissed the grievance petition, filed under section 25-A.Of the Industrial Relations Ordinance, 1969, by Zahoor Hussain, respondents in appeal here, being the respondents in the petition before the Labour Court. He has come up in appeal to this Tribunal.
2. Zahoor Hussain, vide order dated 16-6-1990 (Exh. R. 2), was appointed against a temporary post of T.W.M. And was posted in the Telegraph Office, Chashma, District Mianwali. His services were terminated with effect from 12-10-1992 vide Exh. R-14. Actually, one Abdul Sami, T.P.O., Telegraph Office, Chashma had proceeded on TL-1 Course, and in his place Ashiq Hussain T.W.M. Had been promoted as T.P.O., on officiating basis. The plea of the Department is that on return of Mr. Abdul Sami, on conclusion of the course, Ashiq Hussain was reverted (pages 91/93 of the Labour Court's file), with effect from 11-10-1992. This event is also incorporated in the general transfer order issued on 5-11-1992 (Exh. R. 3 at page 85). As Zahoor Hussain had got the employment against the post vacated by Ashiq Hussain, on his promotion, he had to quit, when Ashiq Hussain came back, and he could not possibly take exception to his removal from service, having been recruited on purely temporary basis, as was indicated by the appointment order, Exh. P-21 (Exh. R. 2), dated 16-6-1990.
It is so maintained by the respondents, according to whom no reason had to be assigned and no show-cause notice had to be issued to the employee for his removal from service.
3. On the contrary, it is submitted by the appellant that his appointment letter dated 16-6-1990 (Exh.
P. 21)/Exh. R. 2) did not envisage that his appointment had been made against a leave vacancy, although the establishment had described his appointment as purely temporary, as is usually done in such cases, so that the employees could oust an employee at any the, according to their whims, without attributing any reasons. Impliedly, appointment of Zahoor Hussain (an outsider candidate) had been made, when Ashiq Hussain, T.W.M. Had been promoted, on officiating basis, as T.P.O., in place of Abdul Sami, who had left for TL-1 training course, as is shown by the order dated 13-6-1990 (Exh. R. 1). It was however not expressly stated like that, in the appointment order, pertaining to Zahoor Hussain. He continued to be appointed for three months' duration, successively, from 16-6-1990 onwards (Exhs. R. 2 to R. 12). As per Exh.R.13, Ashiq Hussain came back to his substantive post of T.W.M., with effect from 12-10-1992, to work at the Chashma Telegraph Office, since Abdul Sami had rejoined his post of T.P.O., after finishing his training in TL-1 Course.
4. Zahoor Hussain maintains that as many as 12 persons had been appointed against the posts of T.W.M., subsequent to his appointment, and he has tendered in evidence documents Exhs. P.1 to P.
12 in that behalf. They are still in service, whereas he has been picked up for his removal from service, for reasons best known to his superiors. There is an important piece of evidence, coming forth from the mouth of the witness of the respondents themselves, namely, Muhammad Latif.
Superintendent, Telegraphs, Sargodha, who has testified to the fact that a number of appointments to the post of T.W.M. Had been made during the period 25-6-1990 to 20-6-1991 and they continue to be in service. He has also deposed that Zahoor Hussain has been in service continuously from 16-6-1990 to 11-6-1992. Well, if that is the actual position, the Department cannot possibly make out a justification for terminating the services of Zahoor Hussain, while retaining all others. Under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, an employee in service for a period exceeding nine months will acquire the status of a permanent workman, who cannot be ousted from service, except on grounds of misconduct, and, in that event, he has to be served with a show-cause notice and made to face a regular enquiry. In the present case, Zahoor Hussain's ouster from service has been ordered in an arbitrary manner, without observing such legal formalities.
5. Learned counsel for the appellant has relied on a number of authorities, including 1992 PLC 179/827 (Labour Appellate Tribunal Sind), wherein it has been laid down that 'service of workman no longer required' could not constitute a valid reason for removing a workman from service and that such statement or claim would call for further probe. People appointed after the aggrieved person are still working; and this bare fact will lead to the conclusion that the post against which the aggrieved person was working was of permanent character and not of temporary nature. I do not agree with the view-point of the learned lower Court that Zahoor Hussain could not be brought at par with the T.W.Ms. Who had been appointed against permanent or regular vacancies, although afterwards, and that the appointment of the appellant was by way of a stop-gap arrangement, which automatically ended, on the arrival of the actual incumbent. If Abdul Sami had resumed duty as T.P.O., and in consequence Ashiq Hussain had been reverted as T.W.M., this development would not ipso facto entail ouster of Zahoor Hussain from the post of T.W.M., in the Telegraphs Office, Chashma. The Department could very well manage to retain him or could remove from service the junior most amongst those who had been appointed afterwards. It may be reiterated here that Zahoor Hussain had initially not been appointed against the leave vacancy, created by temporary promotion of Ashiq Hussain, in place of Abdul Sami. When Zahoor Hussain had been continuously in service for so long, from 16-6-1990 to 11-10-1992, he had acquired a vested right to remain in service, and he could not be ousted, except by following the course prescribed by law for terminating the services of a permanent employee.
6. There can hardly be any doubt about the status of Zahoor Hussain being a workman, keeping in view the nature of his duties. Even though he B was an employee of a Department under the direct superintendence of the Federal Government of Pakistan he could not be regarded as a civil servant. It has been so pronounced repeatedly by the superior Courts of the country.
7. The upshot of the above discussion is that the appeal succeeds. It is hereby accepted and the impugned order is set aside. Zahoor Hussain shall be reinstated in service, with immediate effect, and by reason of his break in service he will not suffer in the matter of his seniority. He has been out of service for no fault on his part, but he has not practically served the Department. I will hold him entitled to half of the back benefits, from the date of his removal from service (12-10-1992), till such the he is enabled to resume duty as T.W.M.