1. The applicant was employed as Reacher in the Weaving Department of the respondent and was covered by the provisions of Standing Orders, Ordinance of 1968. In the month of October 1984 the workers formed a union by name of "Modern Textile Mills Employees Union" and after its registration and declaration as CEA, it served a charter of demand. The management was unhappy with this new union and so it started- victimizing the workers. It terminated about 400 workers but they had re-instated them with effect from 2-6-1985. Since the terminated workers were not restored to their permanent status, they filed petition in this Court. However, during the pendency of the said petition, the applicant was terminated by letter dated 1-12-1985 without any causes or justification.
2. Accordingly, he served a grievance notice dated 3-2-1986 and it having rejected on 19-2-1986. He instituted the present petition for his re-instatement with back benefits.
3. The respondent filed its detailed reply statement denying the charges levelled against it in regard to ante-labour policy and pleaded that throughout the conduct and behaviour of the office- bearers of the newly formed union was against the management and it created lot of problems for it. It admitted the termination of about 400 workers and closing of Weaving Khata as also the re- start of the same on 2-6-1985. However, it pleaded that despite the undertakings given by the office-bearers of the said union not to stage go slow or strike etc. It continued to instigate the workers against the management, gheraoed the Mills Officers, assaulted them and took possession of the mill with the result that the Civil Administration had to move in and the situation was put under control. The workers were not performing their duties and so the management gave various departments on contract and so the applicant, who refused to work with the contractor, having become surplus was rightly terminated. Accordingly, this petition is not maintainable in law.
4. The applicant alone examined himself in support of its case, while on behalf of the management its General Manager, Sarwaruzzaman and its Ex-General Manager, Sagheer Ahmed, were tendered in evidence. I then heard Mr. Muhammad Bashir Awan, Advocate for the applicant, and Mr. Masood Ahmed Shaikh, Representative for the respondent. I have also considered the factual and legal pro position involved herein. Mr. Bashir, has contended that right from the very beginning the respondent had been following ante-labour policy and it never permitted the workers to form any labour union for the welfare of the workers. Accordingly, whenever any union was formed, its office- bearers and active members were removed or harassed in such a manner that they had to leave the job. This, according to Mr. Bashir, all happened with the help of local administration. He also took me through the evidence on record and urged that as soon as the new union was formed, the-management terminated about 100 workers on a false plea of accumulation of stock and then in view of one so-called agreement dated 28-4-1985, it had to re-open the Weaving Department.
5. However, in violation of the said agreement as well, the management forced the workers to accept only re-employment without continuity of service and then forced the workers to resign and to accept the employment under the contractor. On their refusal they were involved in false cases.
6. With this background in view, learned counsel submits that the impugned termination is unwarranted and untenable particularly when admittedly the respondent has failed to show if and when the entire department where the applicant was employed was given on contract and how the applicant became surplus. Mr. Masood, on the other hand, submits that the management had to give the khata on contract only because of non-cooperation of the workers. Since, according to him, the whole khata had been given on contract, the applicant became surplus and so he was rightly terminated because he alone could not be kept in the employment of the respondent.
7. I have gone through the evidence. In regard to the allegations as to the formation of the union, termination of the workers and re-start of the Weaving Khata, I have already given a detailed decision in Application No.76/86 and therein I have held that the action of the management was throughout not only illegal but was mala fide. The reasons are not to be recapitulated in this order.
8. However, I would not dwel upon the legality or otherwise of the impugned order.
9. The plea of the management is that the termination of the applicant was because he became surplus as the whole Khata had been given on contract. Naturally the onus to prove this assertion lies only on the respondent and the applicant would only be required to rebut the same. The applicant has emphatically denied that the entire Weaving Khata was on contract or that he was ever asked by the respondent to 'join contractor. The respondent did not produce any evidence whatsoever to show that this Khata has been given on contract and that too in its entirety. It also could not prove if and when the Khata was given on contract and to whom. It also did not prove if the applicant was given an option to work under the said Contractor. Its star witness Sarwaruzzaman showed his ignorance in regard to any offer having been given to the applicant to work on contract or that the applicant himself requested to relieve him and to join the contractor.
10. This witness of the respondent also could not say if the entire Weaving Khata was given on contract. He also could not produce any application said to have been given by the applicant for re-employment on 2-6-1985. He also could not produce any resignation said to have been submitted by the workers to the respondent, as asserted by him in pars. 25 of his affidavit. In fact, whatever he had asserted in his- affidavit, he could not prove the same rather he showed his ignorance. This shows that this witness was only directed to sign an already prepared affidavit otherwise he had no knowledge whatsoever in regard to this case. Similar is the position of the other witness Mr. Sagheer and in view of the statement of Mr. Sarwaruzzaman, the assertion of Mr. Sagheer that he was simply to sign the prepared documents, would be taken as true.