FAHIM AHMED SIDDIQUI J.---The petitioner is an industrial concern having their production unit of refined suga r at Sanghar . By filing the instant petition, they have challenged the impugned decision dated 26-01-2012 passed by the learned Sindh Labour Appellate Tribunal in an appeal filed by respondent No. 3 against the order dated 22-03- 2002 passed by the learned Presiding Officer of Labour Court No.VI, Hyderabad. Through the impugned order , the learned Sindh Labour Appellate Tribunal allowed the appeal filed by the respondent No. 3 and set-aside the aforementioned order passed by the learned Labour Court No. IV, Hyderabad by holding that the termination of service of respondent No. 3 is improper and without cogent reason. As the appea l filed by the respondent No. 3 was allowed; therefore, the respondent No. 3 was to be restored as prayed by him in his grievance petition.
Through the impugned order , the petitioner was directed to comply with the decision of the learned Sindh Labour Appellate Tribunal within 30 days.
2. As per grievance petition filed by the respondent No.3 before the learned Labour Court No.3, Hyderabad, the facts of the case are that the respondent No.3 was appointed by the petitioner as seasonal journal duty labour on 12th October 1988. Allegedly , on accoun t of better performance of the respondent No. 3, he was promoted as seasonal helper on 13th March, 1990 and subsequently he was promoted as permanent Centrifugal Operator on 21st March, 1997. As per routine practice, at the end of season, petitioner directed the respondent No. 3 to stay at home as a retainer and during the off-season, he was paid half of monthly salary . The petitioner used to pay the annual increment to the respondent No.3 as other permanent employees/labours. As per practice, the respondent No.3 was sent to his home at the end of crushing season 1998-99. During that period, through a letter dated 8th May, 1999 addressed to respondent No. 3 through a registered post, dated 24th of June, 1999, the petitioner informed the respondent No. 3 by giving half month salary that his services would not be required in the coming season. It is the case of the respondent No. 3 that being a permanent retainer labourer . He cannot be removed from his service by issuing such a letter . In his grievance petition, he prayed for restoration of his service as centrifugal operator with wages and other benefits.
3. We have heard the learned counsel for the parties and have gone through the available record and citations produced before us during the course of arguments.
4. The learned counsel for the petitioner while assailing the impugned judgment submits that the respondent No. 3 was not permanent workman of the petitioner industrial concern. According to him, he was a seasonal worker as such he does not fall under the catego ry of permanent worker . He submits that after the closure of crushing season, the respondent No. 3 was laid off and he was again called at the start of season. He submits that during the period of laying off, half salary was given him as a retainer . He submits that the purpose of giving half salary is to make sure that he will be available for his work as 'centrifugal operator' in the mill at the start of next season. He submits that the respondent No.3 was terminated on account of 'financial constraint' of the petitioner . However , he admits that the sugar factory is still unde r the operation and amongst the various centrifugal operators, only the respondent No. 3 was terminated on account of retrenchment due to financial constraint. He submits that after a full and final settlement, the cheque was sent to the address of respondent No. 3, which was received and encashed by him without any protest. According to him after receiving the final settlement amount, he cannot claim against the petitioner . He submits that no other centrifugal operator was appointed by the petitioner in place of the respondent No. 3 and this fact is admitted by the respondent No. 3 as mentioned in the order of the learned Presiding Officer of the Labour Court. In the end, he points out that the learned Sindh Labour Appellate Tribunal through the impugned order has only set-aside the order of learned Presiding Officer of the Labour Court and no further benefit is given to the respondent No. 3. In support of his contention he relied upon Granulars (Pvt.) Ltd. v.
Muhammad Afzal and others (2002 PLC 1), Attaullah v. The Chairman, Sindh Labour Appellate Tribunal and others (2002 PLC 311), Sikandar Aziz and 20 others v. Secretary , Ministry of Industries and Production Government of Pakistan, Islamabad and others (2001 PLC (C. S.) 205), Muhammad Ayub Khan and 3 others v. Messrs Muhammad Farooq Textile Mills Ltd. and 2 others (2004 PLC 250) and Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others (2001 PLC 583 ).
5. On the other hand, the learned counsel for the respondent No. 3 while supporting the impugned judgment prefers his submission at length. Accordin g to him, the learned trial court has reached on a wrong conclusion based on presumption and surmises. He submits that the learned Presiding Officer of the Labour Court has given undue weight to the reply to a question put to the counsel of the respondent No. 3 during the course of arguments. He submits that the grounds for termination mentioned in the termination order are not proper . According to him, as the respondent No. 3 was retained during off-season; therefore, it cannot be termed as 'temporary workman' but he was a permanent employee of the petitioner . He submits that the nature of the job of respondent No. 3 also indicates that he remained a permanent workman. According to him, being a centrifugal operator , he is an important person in a sugar factory . He stresses that the respondent No. 3 was not terminated as per the terms and conditions of employment. According to him, respondent No. 3 cannot be removed without giving a show-cause notice and providing an opportunity of hearing. He submits that the plea of petitioner that he was retrenched due to financial constraint is also not proper and even contrary to law. He points out that the retrenchment can only be possible as per the provision of Order 13, West Pakistan Industrial and Commercial Standing Order (Relation Orders) Ordinance, 1968 hereinafter 'Standing Order'), according to which the last person should go first and in the case of the respondent No. 3; he was the only person who was fired by the petitioner amongst the 900 employees of the petitioner . Regarding collecting dues of gratuity etc., the contention of the learned counsel for the respondent No. 3 is that 'gratuity' is the right of the respondent No. 3 and not a bounty bestowed by the petitioner to his employees. He takes reliance from Messrs Shahmurad Sugar Mills Ltd v. Ghulam Mustafa and another (1998 PLC 83 ) and Zain Packaging Industries Limited, Karachi v . Abdul Rashid and 2 others (1994 SCMR 2222 ).
6. We have given careful consideration to the submissions made from either side, consulted the record and perused the cited case laws. It is argued by the learned counsel for the petitioner that the respondent No.3 was not a permanent employee and he was only a seasonal workman, who was only retained during off-season by paying half salary so that he may be available for the next season. We are of the view that the practice of retention itself sufficient to classify the respondent No. 3 as a workman under permanent employment of the petitioner performing the job of 'Centrifugal Operator'. The classification of workman is given under Order (I) clause (a) of the Standing Order , according to which the workmen in an establishment may be classified as (i) permanent, (ii) probationers,
(iii) badlis, (iv) temporary and (v) apprentices. The worker classified as 'permanen t workman' is further explained under Order (I) clause (b) according' to which: "A "permanent workman" is a workman who has been engaged on work of perm anent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercia l establishment, including breaks due to sickness, accident, leave, lock- out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of three months or for one hundre d and eighty-three days, during any period of twelve consecutive months."
It is not denied that the respondent No. 3 was working as 'Centrifugal Operator' and he remained under employment for a couple of years in the same capacity . During his employment with the petitioner , his job comprising two phases, one is the active service portion during the crushing season and functioning of the mill for the production of sugar . After closure of the mill, the respondent No. 3 was retained on payment of a portion of his salary to ensure that he will be available for the next season. It means that the respondent No.3 remained in service for more than 9 months in service of the petitioner in a calendar year, as such he is a 'permanent workman' as per above quoted provision of law .
7. Besides above another factor is also important to be considered. The 'centrifugal operators' perform an important function in a sugar factory . Without operating centrifugal, the process of converting molasses into crystallized white sugar is not possible. Meaning thereby that the 'Centrifugal Operator' is a permanent feature of a sugar factory , and being a technical job, the sugar factories need to retain him even during off-season time, i.e. for the entire year, as such he is a permanent workman. In this respect, we would like to take relian ce from a case of the Hon'ble Supreme Court of Pakistan reported as Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557 ), wherein it is held as: "A careful analysis of the above definition of 'permanent workman' and ' temporary workman' would show that it is the nature of work on which a workman is employed that determines whether the workman is a permanent or a temporary workman. If the work is a perm anent nature and likely to last for a period of more than nine months, the workman employed on such a work will be deemed to be a 'permanent workman'."
8. The learned counsel for the petitioner also taken the stance that the respondent No. 3 was retrenched due to financial constraints. Even if this argumen t is regarded as gospel truth; the factual and legal position is contrary to law. As per learned counsel for the petitioner , the respondent No. 3 was retrenche d as per the provision of Order XIII of the Standing Order . For the sake of brevity , we would like to reproduce Order XIII of the Standing Order , which reads as: "13. Procedure for retrenchment .---Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category ."
From the above statutory provision, it is clear that the procedure of the last workman employed in a category will go first in case of retrenchment. It has not been established by the petitioner that the respondent No. 3 is the lastly employed 'centrifugal operator' of the factory . In his order dated 22-03-2002 passed on the grievance petition, the learned Presiding Officer of the Labour Court IV, Hyderabad has given undue weight to the reply of the counsel for the respondent No. 3 regarding non-appo intment of any other person in place of the respondent No. 3. It was the reason that the learned Sindh Labour Appellate Tribunal has rightly observed that the finding of the learned Presiding Officer of the Labour Court-IV in this respect is without any justification as no evidence is available on the record regarding non-appointment of any other person in place of the respondent No. 3. Besides, if it is admitted for arguments' sake that there was no appointment in place of the respondent No. 3, even than it will not establish that the respondent was retrenched properly on account of financial constraint because neither there is any evidence that he was the lastly employed 'Centrifugal Operator'. Nevertheless, the petitioner cannot substantiate the plea of financial constraint by producing any balance sheet or any other financial document in this respect.
9. However , if the services of a workma n are required to be retrenched, removed or terminated then the same cannot be done in the style as adopted by the petitioner in the case of respondent No. 3. There is no any allegation of misconduct etc. against the respondent and abruptly , his services were discontinued without giving him a notice, which is unwarranted under the law for a permanent workman. The procedure of termination or even is provided in Order XII of the Standing Order , which is as under:
12. Termination of employment. ---(1) For terminating employment of a permanent workman, for any reason .other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average earned by the workman during the last three months shall be paid in lieu of notice.
On careful perusal of the termination order it would appear that the services of the respondent were terminated without following the procedure provided under Order XII of the Standing Order . Since, no notice was given by the petitioner to the respondent No. 3 before issuing a letter of termination to him, as such the same is also illegal and unwarranted under the law .
10. The learned counsel for the petitioner has relied upon the case of Granulars (Pvt.) Ltd. v. Muhammad Afzal and others (supra ) but the same pertains to definition of the workman and concurrent findings of two forum bellow , as such the same in not applicable to case in hand. The case of Attaullah v. The Chairman, Sindh Labour Appellate Tribunal and others (supra ) cited by the learned counsel for the petitioner is also inapplicable to the present case, as the said case pertains to issues of contract workers and not with the permanent workers. The other case laws cited by the learned counsel for the petitioner are also distinguishing from the present case on similar grounds.
11. Having arrived at the above conclusion it automatically followed, that as workman, the respondent No. 3 was entitled to safeguards provided in Standing Orders. As such we found no defect in the impugned Order passed by the learned Sindh Labour Appellate Tribunal, hence the instant Constitutional Petition being devoid of merits is dismissed. It is directed that the respondent No.3 should be reinstated as per prayer clause of his grievance petition without any further delay .