DECISION ' These 2 appeals are directed against the order of the learned Presiding Officer, Sind Labour Court No, IV at Karachi, dated 31-5-1988, whereby the grievance petitions of both the appellants were dismissed. I propose to dispose of the two appeals by this single decision.
2. The appellants were admittedly permanent workers of the respondents whose services were terminated, vide letters, dated 31-12-1987. Being aggrieved by the termination orders, both the appellants served grievance notices upon the respondents and thereafter filed 2 grievance petitions before the learned Labour Court. The respondents resisted the grievance petitions on the ground that the services of the appellants who were working on the Cranes of the respondents had become surplus after operation of the said 2 Cranes was closed down by the respondent company.. It is further contended that their services were terminated in accordance with the provisions of Standing Orders Ordinance, 1968 (hereinafter called the Ordinance).
3. I have heard Mr. Flamed Siddigi, the learned Advocate for the appellants and .Mr. S. Qamaruddin Hassan, learned Advocate, on behalf of the respondents.
4. The respondents had examined Mr. Sadruddin Huda, the Sales Executive of the respondent company. He has stated that the blocks and boulders received by the company from the mines were mostly over and above 5 tons of the weight which the Cranes of the company were not able to handle. He further stated that one of the company's crane was not in working order and the other had remained inoperative because the blocks and boulders coming from the mines were mostly of 7 to 9 tons in weight and it was not possible for the company's owned cranes to load or unload such heavy blocks and boulders. He further stated that for that reason the company had engaged heavy cranes on contract basis having the capacity of loading and unloading around 15' tons of blocks and boulders. He has further stated that in view of this condition, the company decided to terminate the services of 6 workmen who were attached to the company's crane operations and their jobs were also simultaneously decided to be abolished, wilt effect from 31-12- 1987.
5. All these averments made by the witness of the respondents have not been challenged in his cross-examination.
6. Both the appellants have admitted in their cross-examination that they Were working on the cranes, and that they were served with the termination orders, dated 31-12-1987. Appellant, Ibrahim in the cross-examination has admitted that one of the cranes of the company was not in working condition prior to his termination. The other appellant, Ahmad has denied this suggestion. Keeping in view the evidence on oath of the witness of the respondents which is not challenged in the cross-examination and admission of appellant Ibrahim, the fact tands proved that one of the cranes. Was out of order. Ibrahim has also admitted that blocks and boulders of about 6 to 7 tons were coming from Mines since several months before his termination from service. Both the appellants denied that the capacity of the cranes of the company was up to 5 tons, but, mere denial would not rebut the un-challenged evidence of the witness of the respondents on oath to this effect. Appellant Ahmad has admitted in the cross-examination that as and when the company received heavy blocks and boulders, heavy capacity crane was engaged on contract basis. Appellant, Ibrahim has shown ignorance if both the cranes of the company were still lying in- operative and idle, but, he has admitted that up to the date of his examination before the learned Labour Court, the company had not employed any person in his place. All these admissions clearly prove the contention of the respondents that 2 cranes had become idle and consequently the services of the workmen attached to the cranes operations became surplus.
7. The notice of termination of service also gave this reason for the termination of services of the appellants and they were given one month's wages in lieu of one month's notice and they were directed to collect all their legal dues in full and final settlement of their accounts from the Accounts Department. These termination letters have been produced by both the appellants before the learned Labour Court.
8. Mr. Hameed Siddiqi, the learned Advocate for the appellants has submitted that the person who verified the written statement has not been examined and, therefore, the written statement cannot be taken into consideration. The contention of the learned counsel appears to be correct, but, B the witness examined by the respondents has stated all the facts and reiterated the case of the respondents on oath in his affidavit-in-evidence and as pointed above, the main averments made by him have not been challenged -in his cross-examination. His evidence cannot be rejected only because the person who verified the written settlement had not been examined. The second contention of the learned counsel for the appellants is that this witness was sitting in the office as Sales Executive and as such could not know the facts of the site. It is not suggested in his cross- examination that he did not know the factual position of the site. As already pointed, averments made by him on oath have not been challenged in The cross-examination. Most of these averments have also been admitted-by the appellants in their cross-examination. Even, in their affidavits-in evidence, they have not stated that the 2 cranes were working or that the respondents had employed other persons in their place after termination of their services. They have also not alleged or proved any specific malice on the part of the respondents.
9. Admittedly appellants services have been terminated by written order showing reasons of termination of their service and the respondents gave them one month wagers in lieu of notice as required under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing 'Orders) Ordinance, 1968.
10. In the case of Messrs Midway House Ltd. v. Yaseen Kausar, reported in 1980 PLC page 728, it was held by this Tribunal that where the workman raised the plea of mala fide, the employer was not required to lead evidence and to rebut the bare word of workman to prove the bona fide of the termination order. Reference was made to the case of Federation of Pakistan v. Steed Ahmad Khan and others PLD 1974 S. C 151, wherein it was observed that in order to establish the case of mala fide some specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession.
11. This decision of the Tribunal was challenged before the High Court and the decision of the High Court is reported in 1985 PLC at page 735. It was held by their Lordships that the requirement of Standing Order 12 of the Ordinance were fulfilled, where in the termination order the employee was advised to collect his dues including one month's salary in lieu of notice. -Their Lordships also agreed with the decision of this Tribunal that the mala fide had to be proved by the employee.
12. Standing Order 13 of the Ordinance provides that 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. As pointed above, all the 6 workers working in the Crane Operations have been retrenched. It is not alleged by the appellants that any person junior to them in that category have been retained. Standing Order 14 provides for reemployment of the retrenched worker. Again, it is not the case of the appellants that any person has been employed in their place without giving them notice or a chance. Standing Order 12 provides that the permanent workman cannot be retrenched except by giving him one month's notice or one month's wages in lieu of notice and by written order showing the reasons of termination of service. All this procedure has been adopted in the instant case. No specific mala fide is either alleged or proved by the appellants.
13. In view of the above discussion, I am of the opinion that the grievance petitions have been rightly dismissed by the learned Labour Court and as such I find no merit in these 2 appeals which are accordingly dismissed.