1. This is an application under section 25(1) (b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, hereinafter referred to as the Act, with a prayer for re-instatement to his former post with back wages.
2. The case of the first party is that he was working as an Office Assistant for last 6 years and lastly drawing Rs. 603.00 per month inclusive of allowances. His services were illegally dispensed with on 13-8-70. The second party gave the plea that due to shrinkage of business mainly on account of a closure of a factory of theirs located in Karachi, they had to retrench the staff. He was not given retrenchment benefit as per law and was asked to collect the same. As against this the first party filed a grievance petition disputing the fact of shrinkage of business and closure of factory and pleaded that one W. Mamun who was 4 years' junior to him was retained in service which was not in accordance with the principle of retrenchment. Hence the retrenchment was sham and false and that he being the senior employee should be retained in his post.
3. The second party entered into appearance and filed a written statement in which they stated that due to shrinkage of business, the company had to retrench their employees and a factory was closed. But it was reopened only for a settlement of a dispute at the intervention of the Martial Law Authority. It was further stated that Mr. W. Mamun was also retrenched and there was no office at Chittagong, The said Mr. W. Mamun was engaged for starting an office at Chittagong. Both parties acceded to the jurisdiction of this Court that the second party had their establishment only at the Dacca city.
4. Points for determination:
(1) Whether the first party was illegally dismissed as claimed by the first party?
(2) What relief, if any, is the first party entitled to?
5. FINDINGS AND DECISION Points 1 and 2.-Both the points are taken up together fog decision for the sake of convenient discussion.
6. At the time of hearing of the case the second party agreed to give full termination benefits to the first party as they have no establishment at Chittagong and that there was some irregularity in the retrenchment. Mr. W. Mamun who was the last may should have been retrenched first if it was a case of retrenchment at all. Now that Mr. Mamun and the first party are both out of employment by way of retrenchment, the question need not be raised. Now in facet, if" the first party had worked for these 3 months, he could have been retrenched and the date Mr. Mamun had been retrenched that is, 15-11-70. The company boldly asserts that they have not taken any employee after the first party had been retrenched. They further state that the opening of the factory alt Karachi is only formal. The second party is bound by the provisions of section 13 of the Act if they have to take any person in their employment. The first party is entitled to re-instatement if there is any fresh recruitment. This being the position, the first party can prefer an application in such circumstances.
7. In the result, as the second party has agreed to give full termination benefits to the first party, the first party gets the termination benefits since no new employment has been made in the second party's establishment after these two persons have been retrenched.
8. The application is allowed on contest and the first party is allowed full termination benefits as per provisions of section 19(1) of the Act and as agreed by the second party in Court.
9. The amount shall be calculated and deposited in Court by the second party in favour of the first party within 30 days of passing this, order.
10. The written opinion 6f the members has been considered while arriving at this decision.