Applicant Muhammad Sadiq has moved this grievance application for re-instatement in service of the respondent mill and for back benefits.
2. Admittedly the applicant joined the respondent mill as "Helper" and was posted in Carding Section. Subsequently the applicant was promoted in the same Section as Jobber. It was also admitted position that on 30-1-1982 the applicant sustained injuries during the course of his duty.,, He was referred to the Social Security Hospital, Kotri and then to the Civil Hospital
3. In his application the applicant stated that after receiving treat--ment for the injury he- resumed his duty 'on 15-2-82 and was allowed to perform his duty till 28-2-1982. That on I-3-1982 he went for duty to the mill where the Timekeeper informed him that his services had been terminated and that he could collect his dues. Consequently the applicant sent to the respondent grievance notice copy A/1 dated 15-3-1982 but the same was rejected by the respondent under letter copy A/2 with which was attached letter about termination of service copy A/3 dated 28-2-1982. Applicant challenged the termination of his services to be in violation of S.0.12 (3) and illegal.
4. The respondent in the 'reply statement challenged jurisdiction of this Court and maintainability of the grievance application on the ground that the applicant was not a workman. Respondent contended that on his promotion the applicant became Incharge of the Carding Section in his supervisory capacity as Jobber. It was admitted that the applicant resumed duties on 15-2-1982 after remaining under treatment due to his injury. Services of the applicant were said to have been terminated under a written order because the posts of Jobbers were abolished and as such services of the applicant were no longer required. Order of termination was defended to be legal and valid. It was alleged that the applicant refused to receive the order of termination which was pasted at the notice board and was also sent to the applicant by registered post. It was denied if the applicant was under treatment on 28-2-1982 when the impugned order about termination of his services was issued. It was denied if the applicant was senior to other Jobbers. .
5. Parties adduced evidence and their counsel were heard.
6. In his affidavit the applicant stated that initially he was appointed as Helper with Fitters of the Department and in that capacity he had .Been performing the duties of maintenance. That after his promotion as Jobber he used to work under the Foreman and the Shift Incharge and that he was not Incharge of any department or section. Applicant added that as a Jobber his main duties were maintenance of the machines in the Carding Department including the Blow Room. That he also did other work as per orders of his superiors viz. Arranging workers on the machines and working on a machine. In reply to questions from counsel for the respon--dent the applicant said in cross that at the time of termination of his services he was working in Carding Department as well as in Blow Room where he used to correct and clean the machines. That he was not super-- vising any body. It was not suggested to the applicant in cross if he was not 'a workman or that he was doing the work which was other than manual In rebuttal there is word of Mahboob Ahmed that the applicant was performing his duties as Jobber and such duties were of supervisory nature..
Mahboob Ahmed added that the applicant did not perform any manual job but he used to get accomplished the job through other workers. In his cross Mahboob Ahmed admitted that his duty was in the main office and he did not supervise technical working in the department. He admitted that the workers work under the Shift Incharge. He also stated that the applicant as a Jobber was not to check quality of the production. This witness was not connected with technical work in the mill and hence his evidence on the point cannot carry any weight. The applicant has discharged his initial burden of proving that he was a "workman'-" under the' Standing Orders Ordinance. The onus of proof Shifts to the respondent to establish that the applicant had ceased to be a `workman' after his promotion as Jobber. Respondent has failed to discharge the onus and. I therefore hold that the applicant was a workman under the Standing Orders Ordinance, -and consequently he was competent to move his grievance application and that this Court has jurisdiction.
7. On merits I am unable to agree with Mr. Wasiullah that the order of termination copies A/3 and R/2 was a management affair. It is case of the applicant that he was allowed to perform duty till 28L2-1982 .And that on 1-3-1982 he was informed about termination of his services. T., therefore hold that the order of termination was actually issued on 28-2-1982.
8. It is mentioned in the impugned order copy A/3 that services of 'the applicant were terminated because his services were no more required and that he was being given one month's pay as notice pay With such wording of impugned order I do not agree with Mr. Wasiullah that said order does not give reason for termination of services. In 1962 PLC 1275 it was held that the management has unfettered power to terminate the services of an employee by one month's notice or pay in lieu thereof and other benefits of gratuity. In 1956 PLC 45) it was held that every employer has an absolute right to do away with the services of persons who may have become surplus:
9. Cross-examination of 11a!Lhooh Ahmed shows that there are still Jobbers in the respondent mill working in Ring Department, in Simplex Department and in Winding Department but not in Carding Department or Blow Room. This is contrary to para 8 of the reply statement that the post of Jobbers were done away with. However the applicant in his grievance application has not taken the stand that any other Jobber junior to him was retained in service. Moreover he was working in Carding Department and in Blow Room, where no Jobber was working as per cross---examination of Mehboob Ahmed On these grounds the impugned order cannot be assailed.
10. There is force in contention of Mr. Wasiullah that if the post of Jobber was abolished then the applicant should have been reverted to his original post from where he was promoted. In 1970 PLC 303 it was held that a person promoted from junior post to senior post should not f be reverted to the junior post and his seniority determined in lower cadre. On this ground alone I would accept application of the applicant.
11. I, therefore order that the applicant be re-instated in service as Helper within one month and he be considered to have been reverted Helper with effect from 1-3-1982 and he be paid back benefits accordingly. To this extent this grievance application is accepted.