' AKBAR M. MEMON, MEMBER.---Appellant hereinabove, who was lastly working as Senior Driver with respondent No,2 has challenged his Termination Order, dated 28-6-1988, conveyed through Daily "Morning News" dated 14-11-1988. The news clipping, dated 14-11-1988 is reproduced hereunder:-- "PIDC Printing Press (Pvt.) Limited Karachi.
' After vacation of the Status Quo Order, dated 26-6-1988 of the Hon'ble N.I.R.C. Vide Order, dated 10-11-1988 letters, dated 28-6-1988 of termination of employment with effect from close of work on 30-6-1988 of the following workmen were dispatched on 13-11-1988 through registered post at their available addresses:-- ' Nisar Ahmad Shah, Designer, Muhammad Jan, Assistant (SG), A.R. Usmani, Accounts Assistant (S.G.) Sabir Hussain Khan Stenographer, Mohammad Salim, Accounts Assistant, Hafiz Anwar Sagher, Sr. Clerk, Ayaz Mehmood, Accounts Clerk, Waqar Alam, Jr. Clerk/Typist, Walidad Sr.
Clerk/Typist, M. Mubarak Ali, Sr. Despatch Rider, Khaliq Dad, Sr. Attendant, ' Abdul Majeed Attendant, Juma Masih, Sweeper, Allah Ditta Machineman, S.M. Akram, Cameraman Naseemuddin, Sr. Machineman, Ghulam Husnain, Sr. Machineman, Mohammad Habib, Compositor, Anwar Husain Siddiqui, Plate Maker, Mohammad Akhtar, Sr. Machineman, Mohammad Rafiq Sr.
Machineman, Mohammad Athar, S. Maqsood Ali, Proof Reader, syed Shukat Ali, Sr. Compositor, Abdul Khaliq, Sr. Helper, Mohammad Fayyaz Khan Jr. Compositor, Mohammad Farooq, Helper, Mohammad Nasir Helper, Haroon Ibrahim Helper.
(Project Manager)
For PIDC Printing Press (Pvt.) Ltd.,
2. Mr. Mansoorul Haq Solangi learned counsel for appellant_ has contended that the appellant was originally the employee of respondent No, 1 PIDC from where he was sent on deputation to respondent No,2. A He contended that the appellant's lien remained with respondent No,1 whereafter the Manager of respondent No,2 where the appellant was sent on deputation terminated his services for which act he was not competent. He has contended that no Board Resolution was filed as such respondent No,1 was not competent to represent the case. At the same time, he has contended that respondent No,1 cannot below hot and cold by saying that the appellant was not their employee and legally speaking the respondent No,1 is estopped from disowning the appellant. He has contended that no doubt, the appellant was initially transferred by respondent No,1 to respondent No,2, but subsequently the appellant came to know about the intention of respondent No,2, as such, he made a. Request for his transfer, but his request was not acceded to, though respondent No,1 had transferred certain employees in other units, as such, the appellant was discriminated. He has contended that no doubt appellant's grievance petition before learned Labour Court was dismissed which order was confirmed by learned Sindh Labour Appellate Tribunal, whereafter he filed C.P. Before Hon'ble High Court but due to misfortune of the appellant, insertion of section 2-A was made in the Service Tribunals Act, as such, the. Petition No,D-1860 of 1996 was to abate, therefore, he withdrew the same and filed appeal before this Tribunal well within time, as such, appeal is not barred by limitation. He has contended that order passed by respondent No,2 was illegal and void and subsequent orders passed by the Labour Court and Sindh Labour Appellate Tribunal were not based on legal plane, meaning thereby that when the very foundation was weak, the superstructure raised thereon must collapse, as such, the appeal is liable to be allowed and appellant deserves reinstatement with all benefits. In support of his contentions, he has placed reliance on 1997 PSC 900 (Supreme Court of India), NLR 193 T.D.
(Service) 35, PLD 1980 SC 22, 1988 SCM R 1089, 1992 PLC 1129, PLD 1973 SC 236, NLR 2002 (Service) 8, 2001 SCM R 1905, 1999 SCM R 92, 1989 SCM R 1443, 1996 SCM R 284, 1992 SCM R 435.
3. Mr. Masood A. Khan learned counsel for respondents has opposed the contentions raised by the counsel for the appellant. He has contended that the appellant's service was terminated on 30-6- 1988 which publication was made on 14-11-1988. He has contended that the Termination Order was sustained by learned Labour Court which order was then confirmed by learned Sindh Labour Appellate Tribunal. He has contended that the appellant then filed C.P. No, D-1860 of 1996 on 3-9- 1996 which was dismissed as withdrawn on 10-11-1998. He has contended that the Termination Order passed by the respondents cannot be challenged.As the said Order was confirmed by two forums, therefore, the Order of Termination has become final. He has contended that the authority on which the appellant's counsel is putting much stress is NLR 2002 (Service) 8 which is distinguishable as in the said case was remanded and it was left open to decide the case on merits. He has also contended that the Order of learned Labour Court as well as Sindh Labour Appellate Tribunal speak of the fact that there was no lien of the appellant after executing the Agreement between the Management and the CBA Union. At the same time, he has contended that the impugned order was passed on 30-6-1988, whereas the present appeal and been filed on 28-11-1998, as such, appeal itself is time-barred. He has also contended that every Factory Manager is notified as 'employer' under Standing Orders, Ordinance, as such, the impugned order was rightly passed. He has further contended that Power of Attorney has also been produced though it was not requirement of the procedure. He has lastly contended that question pertaining to legality of the order has already been decided by learned Labour Court which was later on confirmed by the learned Sindh Labour Appellate Tribunal, as such, it cannot be re-opend in view of the latest authorities of Hon'ble Supreme Court therefore, the appeal is liable to be dismissed and the prayer of the appellant for reinstatement cannot be granted as the concern itself was closed under the orders of NIRC under section 11-A of the Ordinance whereafter the termination was made.
' Mr. Mansoor-ul-Haq Solangi learned counsel for appellant in reply has contended that the view taken by Mr. Masood A. Khan appearing for the respondents is erroneous. He has also contended that the termination was made without issuance of charge-sheet and without holding proper enquiry. In support of his contentions, he has placed reliance on 2002 SCMR 18 and PLD 1974 SC 393.
5. After hearing the arguments of learned counsel appearing for the parties, we have gone through the appeal file and so also the authorities cited by respective Advocates.
6. From the perusal of 'the file and arguments advanced By Mr. Mansoor-ul-Haq Solangi counsel for appellant it appears that the appellant has all along agitated that after his transfer from respondent No,1 to respondent No,2 on deputation, his lien was still intact, therefore, the order of termination was Void and illegal. At the same time, it has been canvassed that some of the incumbents who were transferred by respondent No,1 were re-transferred, whereas appellant was discriminated, as his request for transfer was not considered. As against this Mr. Masood A. Khan learned counsel for respondents has contended that the question of lien was fully considered by learned Labour Court and the Sindh Labour Appellate Tribunal and after elaborate discussion it was concluded that the appellant had become permanent employee of respondent No, 2 on account of settlement between CBA and the management due to which the appellant became the permanent employee of respondent No,2 on the same terms and conditions. He has further contended that the order of termination would have been passed earlier, but the same could not be done as the incumbents including the appellant had obtained status quo from NIRC He has contended that immediately on vacating the status quo by the NIRC, the impugned order was passed, as such the appellant cannot agitate now before this Tribunal that his lien was intact and he could not have been terminated, and at the most he could have been repatriated. At the same time, he has contended that there is no question of reinstatement as the respondent No, 2's concern stand closed under the orders of NIRC, under section 11-A of the Ordinanc. Lastly it was argued by Mr. Masood A. Khan that appeal itself is bared by limitation as the order was passed in the year, 1988, whereas appeal was filed in the year, 1998.
7. In the very first instance, we would like to take up the question of limitation. The alleged termination was made by way of publication on 13-11-1988, whereafter the appellant approached learned Labour Court by filing grievance Petition No, 118 of 1989 under section 25-A of I.R.O. 1969 which was dismissed on 23-7-1992 being aggrieved, the Appellant filed appeal before learned Sindh Labour Appellate Tribunal which Appeal No, KAR-478 of 1992 was dismissed on 17-3-1996, whereafter the appellant filed C.P. No, D-I860 of 1996 on 3-9-1996, which was dismissed as withdrawn on 1-11-1998, whereafter the appellant filed appeal before this Tribunal on 29-11-1998.
Since the appellant was all along pursuing his legal remedy, as such, we are of the view that his appeal is not barred by limitation and the objection raised by the counsel for the respondent has no force.'
8. As regards the question of lien of the appellant is concerned, we would like to reproduce paras 6 to 11 of the order passed by learned Fourth Sindh Labour Court on 23-7-1992.
"6. As reproduced above, the prayer of the applicant shows that he wants this Court to set aside the impugned order passed by the respondents Nos.2 and 3 with the direction to them to reinstate him in service with full back-benefits, and therefore, he has impleaded respondent No,1 only for the purpose of show that initially he was employed by respondent No,1 from where he was transferred to respondent No,2 and has also been wanting his transfer back to respondent No,
1. The initial employment of the applicant with respondent No,1 is admitted until his transfer to respondent No,2 and its incorporation under the Company's Law, and therefore, nothing else to be done insofar as respondent No,1 is concerned, particularly when the applicant who had filed a separate grievance application in this Court under No,524 of 1988 for transfer of case was also withdrawn by him to be filed after the result of instant grievance application.
7. The applicant has challenged the impugned order on two grounds viz: that respondent No,1 is not the competent authority of respondent No,2 and that applicant is serving there as employee of respondent No,1, and secondly that the order is illegal being sudden and with the retrospective effect. In this connection reference be made to the evidence wherein applicant has admitted the incorporation of respondent No,2 after his transfer there which means that respondent No,2 became separate legal entity from respondent No,1 then there is evidence that applicant was member of the CBA Union in Respondent No, 2 and was getting all the benefits of the settlement signed by it with respondent No,2. Thirdly, the subscription of applicant towards,CBA Union was also being deducted for his salary. It is, therefore, held that applicant became the employee/workman of respondent No,2 for all intents and purpose. The applicant in the evidence has referred to some official noting to show that he had moved application for transfer back to respondent No,1 but it is seen that he had not sent any grievance notice and then filed grievance application in time, after respondent No,2 was incorporated and became separate legal entity and thereby it is presumed that he abandoned his claim of employment with respondent No,1.
8. The applicant has also alleged that respondent No,3 was not competent to pass the impugned order but it is seen that he has addressed the very grievance notice to respondent No,3 and has also not shown any other authority to be competent to remove him from service or the authority to come within the definition of "employer" within the meaning of section 2(viii) of the Industrial Relations Ordinance, 1969 and Standing Order 2(g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Under the circumstances, it is held that respondent No,3 was competent to pass the impugned order.
9. Then it is the case of the applicant that the impugned order has been passed suddenly and with retrospective effect, as such the same is illegal. In this connection evidence has come on the record to show that vide resolution of Board of Directors it was decided to close down respondent No,2. On account of lack of funds and for that reason services of all the employees were being terminated w.e.f 3-6-1988 and for that reason, respondent Nos. 2 and 3 had made arrangement to send such orders to the concerned workman/employee through post and by publication but could not do so because of the case filed by the union of the applicant before the learned NIRC wherein stay was obtained against respondents Nos.2 and 3 and which was subsequently vacated as without jurisdiction, whereafter the impugned order was got published in the daily newspaper "Morning News" dated 14-11-1988. In these circumstances. The respondents have rightly relied upon PLD 1981 SC 225 wherein service has been held good where it was found to have been impeded by the person concerned because nothing has come on the record to disprove the contention of the respondents, that the stay obtained before the learned NIRC was not confirmed because it was held to have been initially granted without jurisdiction. Under the circumstances, it is held that the impugned order is not illegal.
10. Before parting with this decision, it may be mentioned that it has come on the record that the application under Standing Order 11-A for permission to close down respondent No,2 was filed after the instant application and which has been allowed, as such applicant could not have been actually reinstated in service even if this application was allowed and in this connection reliance is placed in 1987 PLC 178 and unreported Decision in Appeal No,KAR-408/83 (taken out from the written arguments on behalf of respondents).
11. Under the circumstance, discussions and findings mentioned above, this grievance application is hereby dismissed."
Similarly paras 6, 7 and 8 of the decision of learned Sindh Labour Appellate Tribunal in Appeal No,478-K of 1992 decided on 17-3-1992 are also relevant, as such paras 6, 7 and 8 are reproduced for the sake of convenience: "6. It has on the other hand been argued by Mr. Abdul Hafiz, Advocate on behalf of the respondents that after transfer of the appellant the CBA and the management effected a Settlement under which the transferred employees of the PIDC became the employees of the Printing Press on the same terms and conditions. Their previous service with the PIDC Corporation therefore, ceased and their new service commenced on the same terms and conditions. The Driver was, therefore, no longer in the employment of PIDC Corporation. This was in the year, 1986. After about two years the Printing Press Company had to be closed down for want of funds on 30-6-1988. On learning about this move to close down the workers approached NIRC and obtained a stay order on completion of the proceedings the NIRC withdrew the Stay Order and allowed closing down of the Printing Establishment. Before the Notification in the Press individual orders in writing were dispatched to the workers by registered post and it was stated in these orders that they would be paid their legal/termination dues as stated in their termination order, dated 28-6-1986.
(7) Thus 'Printing Press establishment was closed down for want of funds with permission of the NIRC and the employment of its workers were terminated by order in writing giving reasons and offering all the legal dues.
(8) Thus the termination was valid and legal and the order of the Labour Court was proper and reasonable. The order of the Labour Court is, accordingly, maintained and the appeal is dismissed."
Perusal of the above cited paras of the order of Labour Court and the decision of Sindh Labour Appellate Tribunal it would appear that on account of Agreement of the CBA Union and the Management of Respondent No,2, the incumbents including the appellant became permanent employee on the same terms and conditions of respondent No,2, as such, there was no lien of the appellant with respondent No, 1 . Even the grievance notice was sent to respondent No,2, which was replied by respondent No,2, therefore, it cannot be said that the appellant was on deputation with respondents, therefore, they could not have terminated the appellant by placing reliance on '1996 SCM R 284. Even otherwise, the above cited portions would reveal that the establishment of the respondent No,2 was closed under the orders of NIRC, as such, there appears no force in the prayer made by the counsel for the appellant for reinstatement. We are in respectful agreement with the rulings cited by the counsel for the appellant, but considering the fact that the chapter was already closed by two forums, there was no justification to have opened the same after a delay of over 13 years particularly, when the establishment was ordered to be closed in the year, 1988. The authority cited by learned counsel for appellant reported in NLR 2002 (Service) 8, is somewhat distinguishable as in case of General Manager National Bank of Pakistan v. Abdul Aziz the matter was remanded for fresh decision, whereas according to 2001 SCM R 328 and 2002 SCM R 1023 the decision arrived at by learned Labour Court and Sindh Labour Appellate Tribunal had become final and was treated as past and closed transaction. Similarly in this case also both the orders were passed by Labour and learned Sindh Labour Appellate Tribunal and had become final when the very establishment was ordered to be closed under the orders of the Court under section 11-A of the Ordinance, the termination order which was passed by notified Manager in capacity of authority cannot be disturbed, as such, the case of the appellant has no merits at all.
Consequently, appeal in hand fails and the same accordingly stands dismissed with no orders as to costs.
9. Parties are informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.