' MUHAMMAD MOOSA K. LEGHARI, J.--- Being aggrieved by the judgment passed by Labour Court No,IV, Karachi who directed reinstatement of the respondent workman with full back-benefits, the appellant-Management has challenged the same through this appeal.
2. The case of the appellant as set up in his grievance petition is that he was a permanent workman having been appointed as M.T. Driver on 28-1-1991 and was performing his duty to the satisfaction of his employer. The appellant was an office-bearer of Trade Union since 1995 and was actively participating in the Trade Union activities. He remained engaged in the negotiations and settlements conducted and arrived at between the management and union. The management being annoyed due to Trade Union activities and litigation between union and management was hostile to union activists including the applicant-worker, as such they were being consistently harassed. The respondent-worker was served a letter of termination on 31-5-1997, which caused grievance to the worker. As such after service of grievance notice dated 3-6-1997 which was replied by management on 17-6-1997, the worker filed grievance petition.
3. The management contested grievance petition by filing legal objections/written statement.
Maintainability of grievance petition was challenged on the ground that the employer being charitable trust was immune from the applicability of the labour laws. On merits it was pleaded that though, the performance of the worker was not satisfactory during his entire service yet no strict disciplinary action was taken against him. However, show-cause notice, inquiry letters, warning letters and suspension letters were available in his record. The allegations of victimization and harassm ent were denied to be false, it was specifically asserted that the worker was apprehended by Airport Security Force while unauthorizedly taking away 16 leather jackets for which, a show-cause notice was issued to him and inquiry was conducted but the worker was let off on account of legal technicalities. However, ASF Authorities being dissatisfied with the conduct of the worker cancelled his Airport Entry Pass vide their letter dated 24-5-1994. Resultantly the worker could not perform his normal duty as M.T. Driver inside the Airport Security Area. Therefore, he was kept sitting idle in the office and was being paid salaries without work. Yet the worker claimed and insisted for allowing him overtime as being done by other drivers. It was pleaded that despite best efforts of the employer no Airport Entry Pass could be issued to the worker, though he himself made such efforts in this regard. It was pleaded that the termination of the worker has nothing to do with his Trade Union activities. Accordingly it was prayed that the grievance petition be dismissed.
4. Before Labour Court the applicant examined himself as his own witness besides examining Rana Naeem Ahmed in his support while Wing Commander (R.) Wallayat Ali Khan was examined on behalf of employer.
' Grievance petition of the worker was allowed by impugned judgment.
5. It was contended on behalf of the appellant employer that the respondent worker was neither having good conduct nor good service record. He was involved in the theft of 16 numbers of costly leather jackets for which he was proceeded against but for technical reasons and on account of his influence, proceedings were dropped. However, ASF Authorities cancelled his Airport Entry Pass as back as in the year 1994 and therefore, his services could not be utilized. Consequently, the management terminated his services as measure of retrenchment. It was strenuously argued that it was the, case of termination simpliciter as such grievance petition was not maintainable as no secured or guaranteed right of worker was violated. It was further contended that since on account of objectionable conduct of the applicant the employer has lost confidence in the worker as such lack of confidence was a valid reason for terminating services of the worker.
' Reliance was placed on PLD 1987 SC 47, besides some unreported judgments and a case from Indian jurisdiction.
6. Conversely it was argued on behalf of worker that the termination of the worker was for mala fide reasons which fact is apparent from different pleas taken by employer at different times. Pointing out from the discussion made by Labour Court in the impugned judgment learned counsel canvassed that the judgment was based on evidence and legally valid.
7. I have anxiously considered the arguments addressed at the bar thrashed out the evidence available on record and referred to the case-law on the subject including the rulings cited by learned counsel for the appellant in support of his submissions.
8. At the outset it must be stated that there is no cavil to the rules laid down in the authorities cited on behalf of the appellant yet to the hard luck of the appellant employer those have little applicability to the facts and circumstances of the case of the appellant employer. Moot point in the present case which is required to be thrashed out would be, whether termination of worker was bona fide or it was for malicious reasons. Admittedly the alleged incident of theft of jackets which has been attributed to the worker took place as back as in the year 1994. It is also admitted by employer that no action was taken against the worker on this account. It has been alleged in the written statement that the performance of the worker since his appointment viz. In the year 1991 was not satisfactory. Assertion, of the worker with regard to his association with trade union has not been specifically denied in the written statement though victimization and harassment have been denied.
9. It would be seen that it is the case of the employer himself that the conduct of the respondent workman was not satisfactory since his initial employment i,e, 1991 and further that Airport Security Entry, Pass of the worker was cancelled as back as in the year 1994: However, his termination was ordered in the year, 1997 advancing the reasons of non-issuance of security pass by Airport Security Force. Nothing has been brought in evidence to substantiate the plea that no work was taken from the worker in between 1994 and 1997 and that during the above period, he remained idle. On the contrary, certain overtime sheets which were brought in evidence, and have been admitted by employer witness, reveal that the worker was allowed to perform overtime besides his normal duty after the incident of 1994. No material has been placed on record by the employer to show that ASF Authorities even refused to issue entry pass to the worker.
10. It is a matter of record that few days before issuance of letter of termination the respondent- worker was served with a letter of advice dated 12-5-1997. The contents of this letter adequately display the irritation and grudge having been developed by the employer. It will be appropriate to reproduce the contents of such letter:--
(1) "Please refer your reply dated 8 May, 1997 given in response to explanation letter of even number dated 6 May, 1997.
(2) It is highly regrettable to note that you have exhibited utter lack of manner and decency in this reply. Instead of restricting yourself only to the reply of charge maintained in the explanation letter you have gone upto the extent of leveling wild and irrigative allegations against the Management.
The manner you have rebutted the charges is highly surprising as the undersigned time and again himself checked and found you missing from your place of duty before closing hours.
(3) You are well aware that your Airport Identity Pass had been confiscated by the A.S.F. Authorities owing to your involvement in a theft case. However, during departmental enquiry you escaped on technical reasons, though the facts of case are well known to you. The Management has been trying continuously to sort out the issue of your Airport Entry Pass with the A.S.F. But we have not yet received any reply from them.
(4) It is needless to point out that in the absence of Airport Entry Pass you cannot perform duty at the Airport Area and that is why you have been attached with the Main Office temporarily on administrative reasons for which you must be thankful to the Management.
(5) Regarding your allegation/apprehension that false grounds were being created for termination of your services, we can assure you that your fears in this regard are totally unfounded as the management of SAPS believes in the supremacy of law and not ' in extra-judicial action.
(6) It must also be in your knowledge that doing overtime work is not the right of any employee and it has no nexus with terms and conditions of employment. It is upto the management to detail any employee on overtime work on required basis. Your other allegations of harassment and mental tortures are highly baseless, as such these are rejected.
(7) In the light of what has been explained, you are hereby advised in your own interest to be regular in attendance and also refrain from levelling wild and baseless allegations against the Management failing which disciplinary action under the rules may be taken against you."
11. The perusal of para.2 of the letter adequately discloses the displeasure expressed by Manager Administration on account of "levelling wild and irritative allegations against the Management". It has further been alleged in the said letter that the worker was found missing from place of duty before closing hours. The statement made in para. 5 of this letter, clearly indicates that the worker has expressed his apprehension with regard to termination of his service by creating false grounds.
Thus, such allegation was denied in the said letter in the following manner:- "Regarding your allegation/apprehension that false grounds were being created for termination of your services, we can assure you that your fears in this regard are totally unfounded as the management of SAPS believes in the supremacy of law and not in extra judicial action."
12. Vide para. No,7 of this letter the worker was advised to be regular in attendance and also to refrain from levelling wild and baseless allegations against the Management failing which disciplinary action may be taken against him. Co-incidentally this letter also contains the observation with regard to theft which resulted in alleged confiscation of the Airport Identity Pass of the worker and doing of overtime work which was clearly mentioned in the letter of termination issued to the worker after 18 days of the letter of advice. Examination of contents of letter, dated 12- 5-1997 clearly reveals that the reasons for termination were not those which were contained in the letter of termination, but besides those were the reasons of levelling wild and irritative allegations against Management etc. It is manifestly clear that the apprehension expressed by the worker in his letter of explanation dated 8-5-1997 became true on 31-5-1997 by ordering his termination though those were denied in the letter, dated 12-5-1997.
13. For all the above reasons, it is crystal clear that termination of applicant was tainted with malice, which in no case, could be validated or sustained. The judgment passed by Labour Court is based on sound and cogent reasons and needs no interference. The judgment is accordingly upheld and the appeal having no merits is dismissed.