DECISION This is an appeal filed by Messrs Trust Ceramic Industries, Karachi, against an. Impugned order, dated 10-7-1985, passed by the Sind Labour Court No. IV, Karachi, who has allowed the grievance petition of the respondent filed by him under section 25-A, I.R.O.
2. The facts of the case, briefly stated, are that the respondent namely, Shamsher Riaz, was permanently employed in the appellant --Establishment as skilled worker in Moulding Department since 1-10-1975, and that he was General Secretary of Trust Ceramic Industries Labour Union. That on 25-4-1984 the-services of the respondent were terminated on the ground of alleged retrenchment due to losses and acute financial difficulties. That, it was the case of the respondent that as the President and General Secretary of the C . B . A. Union were the officers of the appellant Establishment and the C.B.A. Union was the Pocket Union of the Management, he convened a meeting of the workers in which a number of members of the C . B. A. Union had also attended making a majority membership of the respondent's union, therefore, in that meeting an election /referendum between the two unions was demanded. That this act of the respondent had developed a displeasure with the Management, so, it had terminated the services of 47 workers, simply on the alleged plea of retrenchment.
3. The appellant Establishment resisted the grievance petition of the respondent submitting that the respondent was employed as unskilled worker from 1-10-1975, was promoted as semi-skilled worker from 1-4-1977 and thereafter, as skilled worker with effect from 1-4-1978. That there were three Trade Unions in the appellant Establishment. That the termination of services of the workers was justified as they were suffering huge losses for the last two years and due to this, they had decided to reorganize the Establishment and to reduce the working force and to adopt measure of economy by closing Slip House, Laboratory, Downwon and to transfer these departments to one Sadullah Khan, a contractor. That the appellant Establishment had obtained a loan of Rs.50,00,000 from United Bank and further they had denied the charge that these departments were given to a Contractor to avoid Government dues.
That the appellant Establishment reiterated that only due to financial losses, they had affected the retrenchment and this action was mala fide would have been if they would have not terminated the services of the Vice-President of the C.B.A. Union. That the retrenchment was strictly on the principle of ---last come first go---.
4. Both parties filed their respective affidavits-in-evidence before the learned Labour Court and they were duly cross-examined. Thereafter, the impugned order was passed, hence, this appeal.
5. I have heard Mr. S. Zamirul Hassan, the learned representative for the appellant Establishment and Mr. Shafiq Qureshi, the learned Advocate on behalf of the respondent and have perused the record and proceedings of the case.
6. The only main point involved in this appeal is that whether the termination of services of the respondent of the ground of retrenchment due to huge losses was correct and was in accordance with the principles of ---last come first go---, and whether the retrenchment of the respondent, namely, Shamshur Riaz, claiming himself to be the General Secretary of the rival union, was a victimization due to the displeasure of the Management and thus, mala fide or not? Mr. Shafique Qureshi, the learned Advocate for the respondent has contended that if it is presumed for arguments sake that the action of the Management was justified, then, in that case too, the action against the respondent, in particular, was mala fide and clearly a victimization. In this respect, he has referred me to the following evideace which has been brought on the record of the learned Labour Court:- "I did not offer any alternate employment to the applicant. Neither at the time of termination nor after termination. It is incorrect to say that sanitary were casting and fixing falls under Moulding section. It is correct that Sanitary were, Casting and Fixing Department are not connected in any manner in Moulding Department. In Moulding section there is finishing work also. It is incorrect to say that at the time of termination of employment he was working in Sanitary were Finishing Department. There is no any Sanitary were Finishing Department. There is only Moulding section.
There is no Sanitary were finishing section. At the time when his services were terminated, he was serving in the Moulding Section. In moulding there are two types of work, finishing and water finishing. Applicant was given the duty of finishing only. It is the finishing of sanitary were. There is no difference between the moulding and sanitary were finishing. It is correct that the applicant was doing work of Sanitary were finishing. There are 9 people working there. The witness again clarified that there is moulding section, Sanitary finishing and Sanitary-were section, Applicant was working in liding section. Syed Asghar Ali and Muhammad Ovals were working in the Sanitary were Finishing Department. It is correct that these two workers are junior to the applicant. It is correct that at the time when the retrenchment was effect, semi-skilled workers and unskilled workers were also working, in the department of the applicant."
7. From the above evidence, it is crystal clear that the respondent was the senior person against Asghar Ali and Muhammad Ovais and that the appellant Management has tried to confu3e the issue that the respondent was given that duty of finishing work only as at the same] time they had stated that there is a moulding section, sanitary finishing and Sanitary-were section, and that the appellant Establishment had denied that the respondent was working in the Sanitary-were Finishing Department. Thus, even, if the respondent was working in the Moulding Section, yet his seniority is to be determined from the date of his' appointment as unskilled workman, who was then became semi-skilled', and thereafter as skilled workman. The seniority to be retained in the employment of the appellant Establishment, as is claimed by the respondent, is his right. The established and admitted facts were that the Moulding Section was still working and the semi- skilled and unskilled workers also working in the said department, then, there was no justification to make retrenchment of this senior workman i.e. The respondent, unless the entire Department was closed down, which is not the position in the present case. Here, in the present case, the seniority of the respondent has to be determined from the date of his entry into the employment as he was admittedly a senior workmen over other workmen namely, Asghar Ali and Muhammad Ovais, who were retained in the employment. Further, it is an admitted position that was no difference between Moulding and Sanitary-were Finishing Mr.Zamirul Hassan, the learned representative for the appellant Establishment has failed to convince me against this legal position and other admitted facts and thus, he has no case.
8. The upshot of the above discussion is that the termination of the respondent was incorrect and the learned Labour Court has rightly allowed the grievance petition of the respondent. I, therefore, maintain the impugned order and dismiss this appeal. The appellant Establishment is directed to re-instate the respondent in service with full back benefits forthwith.