' Admitted facts giving rise to this petition in nutshell are that the applicant was employed as Assistant Jobber In the Ring Department of the respondent and had served as such for about 3 years. On 5-5-1982 his services were terminated informing him that his services were no more required. A grievance notice was then sent by the applicant on 8-5-1-982 which was served on the respondent on 12-5-1982. A second notice was also sent by the applicant on 3-7-1982. The present petition was then instituted on 27-7-1982 for reinstatement with full back benefits. The main grounds urged in support of this petition are that the applicant is a workman and so covered by the provisions of S.O. Ordinance that the termination was effected without assigning any reason whatsoever, that about 10 junior workers to the applicant were retained while the services of the applicant were terminated and so such termination is violative of the provisions of 5.0.12. The plea of the respondent however is that the grievance notice received by the respondent on 12-5-1982 was duly replied on 23-5-1982 and the same was also legally served on the applicant through his son Abbas at the address notified by the applicant, himself through his grievance notice. The petition having been brought on 27-7-1982 is thus barred by two days and so is liable to be dismissed on this score alone. It has also been averred that after the receipt of the reply of the grievance notice, the applicant approached the Labour Department and so he falsely suppressed the receipt of reply in the present petition. On merits, it has been averred that the applicant does not come within the category of workman inasmuch as he used to perform supervisory duties and furthermore he never did any manual or clerical work. The termination is also in accordance with 5.0.12 and so his petition is not sustainable in law.
2. In support of his case, the applicant alone examined himself, while the respondent examined Shamsul Haque, Postman, Hameeduddin, Assistant Superintendent Post Offices, Muhammad Umer, Steno to Deputy Director Labour (Conciliation) Hyd., Niaz Ahmed Khan, Technical Manager, and Abdul Ghani, Factory Manager. During the course of the evidence of the respondent, with the permission of this Court, the applicant also examined Factory Manager Abdul Ghani as his witness as well for the purposes of production of certain record of the Mill.
3. After evidence as aforesaid, I have heard Mr. Muhammad Ahmed, Advocate for the applicant, and Mr. Abdul Ghani Khan, counsel for the respondent. I have also considered the evidence in the light of the submissions made at the bar.
4. The first point which poses for consideration is the status of the applicant. According to the respondent, the applicant was performing supervisory duties having about 25/30 persons under him and so he cannot claim himself to be a workman. The submission of Mr. Muhammad Ahmed however is that the applicant was admittedly doing manual work by himself as well and, as has been admitted by the witness of the respondent, he was a workman and had been made permanent on completion of 3 months service. Besides this, he was admittedly an insured worker under Social Security Scheme and since only workman can be covered by the Social Security Scheme, the applicant has to be considered as a workman.
5. The applicant was Assistant Jobber and as per the evidence of D.W. Niaz Ahmed Khan, Technical Manager, this applicant used to stop the machine for doffing purposes and used to re-start the machine after the completion of doffing. Moreover, at the time of doffing whenever yarn used to break, the applicant also sometimes used to help the other workers in piecing the ends. He further deposed that Assistant Jobber is a permanent workman on completion of 3 months job. During the days when applicant was in employment Assistant Jobbers also used to be got insured under Social Security Scheme and so he was also a secured worker as per Exh.A/7. Lastly he states that after the increase in the wages of the Jobbers, such persons are not being insured. The Factory Manager Abdul Ghani has also endorsed and confirmed the aforesaid testimony of Technical Manager. From the evidence of the important witnesses of the respondent it is crystal clear that not only the applicant used to perform manual duties but he was also deemed to be a workman and that is why he was got insured under Social Security Scheme. Assuming that the applicant was not performing any manual duties and was performing supervisory duties, still the applicant cannot be kept out of the class of workman for the simple reason that, as pleaded by the Technical Manager the applicant was drawing less wages than what are required to exclude the supervisors from the operation of Labour Laws. Since the applicant was insured under Social Security Scheme, necessary inference is that he was drawing less than Rs,1,000 p.m. And so he would certainly be a 'worker even if he was performing supervisory duties. Accordingly, the objection of the respondent is repelled.
6. The next point for adjudication in this matter is whether the termination is in accordance with the provisions of S.O.
12. Learned counsel for the applicant submitted that the termination saying as no more required would be deemed to be illegal and violative of S.O. 12 inasmuch as the employer is legally obliged to disclose the reasons for termination. He also submits that as per the evidence of Factory Manager of the respondent Mill, it is established that even after the termination of the applicant his juniors were not only retained in service but some other persons were promoted to the post of Assistant Jobbers. Accordingly, by terminating the applicant without assigning any reason the respondent has exposed itself and so such an order should not be approved. Mr. Ghani, on the other hand, submits that it is the sweet will of the employer to terminate any of its employees at any time and the only thing which is required to be legally done is to issue a termination order in writing. In the instant case, the termination letter was issued and was duly served on the applicant.
I have considered this legal pro-position and I find that the impugned termination is illegal being against provision of S.0.12(3). It has repeatedly been held by the superior Courts that a permanent worker can be terminated only if he is a junior most and his post has been genuinely abolished or for certain reasons the retrenchment is inevitable. The term "no longer required" is no reason because one cannot understand why he is no longer required. Accordingly, it is the requirement of law that explicit reasons must be recorded and such reasons must be cogent ones. In the instant case, the action manifestly appears to be mala fide. It is on record now that at the time of termination of the applicant neither the post of the applicant was abolished nor any retrenchment was effected in the mill but on the contrary, besides keeping junior persons to the applicant in service some ordinary workers were even promoted to the post of Assistant Jobber. This shows that the respondent circumvented the law by terminating the applicant saying that he was no more required. If such wide discretion is conferred on the employers, then there will be no necessity of establishing Courts to examine the actions of the employers. Accordingly, the impugned order would be deemed to be illegal and violative of S.O.
12.
7. Though the applicant is to succeed on the grounds discussed above, but it is, an irony of fate that he cannot ultimately succeed in this petition. His petition has been pleaded to be time barred by 2 days. Mr. Muhammad Ahmed submits that firstly the receipt of the reply of the grievance notice by his son cannot be binding on the applicant because his son was an independent person in his life and used to stay separately from the applicant; and, secondly, even otherwise, the Limitation Act being procedural one, it does not extinguish the right but only bars remedy. Since the right has been established in this case and since the impugned action of the respondent would be nullity in law, the delay in bringing this petition be condoned. Mr. Ghani, on the other hand, submits that the applicant has not come with clean hands in this Court and so he would not be entitled to any indulgence of this Court. I have considered this aspect of the case and I find that the applicant has never been honest in his dealings. In his grievance petition he specifically urged that his grievance notices were never replied. He maintained his stand in his affidavit in evidence. Though it has been pleaded by the respondent right from the very beginning that the petition was time- barred the applicant never bothered to seek condonation of delay and to admit the receipt of reply. However, after the close of the evidence of the respondent, he came with an application under section 5 of Limitation Act on 14-7-1985 i,e, after 3 years of bringing his petition. The only ground which has been taken in the supporting affidavit of this application is that the delay in the submission of the application was under a bona fide mistake in computing the period of limitation.
During the proceedings however he categorically denied the receipt of reply of the grievance notice and also pleaded that his son Abbas was not on good terms and was living apart from the applicant. In fact this application for condonation of delay was moved only when it was proved by the respondent that the reply of the grievance notice was not only received by the applicant in time but that it was also produced by him before the Labour Director in a complaint brought by him against his termination. In this view of the matter I am afraid, I cannot refrain observing that the applicant deliberately suppressed the receipt of the reply of the grievance notice and never came with an open heart and with clean hands. Accordingly, he cannot expect this Court to come to his rescue and to exercise the discretion in his favour.. Accordingly, I would, though with a heavy heart, refuse to condone the delay. Its consequences would naturally be that his petition would become barred by limitation and so is liable to be dismissed on this ground alone.
8. In view of the above, the petition of the applicant is dismissed as barred by limitation and so -not maintainable.