DECISION ' This appeal is directed against the order, dated 23-8-1984, passed by learned Sind Labour Court No,II at Karachi, dismissing grievance petition of the appellant.
2. The facts of the case, in brief, are that the appellant was admittedly working as a Driver with the respondents whose services were terminated by letter, dated 3-3-1983, by way of retrenchment.
The appellant contended that he was victimized as the Managing Director had got annoyed with him. After service of the grievance notice he filed grievance petition against the respondents. The respondents resisted the grievance petition contending that the services of the appellant had become surplus, therefore, he was retrenched. They had denied the allegation of victimization and further raised a plea that the grievance petition was time-barred.
3. I have heard Mr.Abdul Majeed, learned representative for the appellant and Mr.M.A.Khan, learned Advocate on behalf of the respondents.
4. Admittedly, sometime before removal from service, the appellant was working as a Driver at the bungalow. Of the Managing Director. He states to have earned the displeasure of the Managing Director, therefore, he was recalled from the bungalow to the office of the respondents and subsequently because of the displeasure, his services were terminated. It was further alleged that 4 drivers, junior to him were retained in service while he was removed from service. In the cross- examination, the appellant has stated that he cannot say if he was junior most permanent driver on 3-3-1983. The appellant had also examined Muhammad Saleem Khan, General Secretary of the union in support of his grievance petition, who states that hp was informed by letter, dated 13-3- 1983, that the appellant was no longer in the service of the respondents. He, however, does not state that he had personal knowledge as to the allegation that the appellant had earned displeasure of the Managing Director of the respondents and was, therefore, subsequently removed from service. He filed the grievance petition on behalf of the appellant. In rebuttal, the respondent examined Mr.Azhar Saeed, Corporate Stores and Purchase Manager of the respondents. He states that as a matter of policy, the management decided that the facility of providing a driver for house duty to the Directors should be withdrawn gradually and that in order to implement the policy, the Managing Director who had in his employment a domestic driver for the last many years though it appropriate that company's driver should be withdrawn from his house duty. He further states that after recall, the appellant was found to be surplus driver and, therefore, he being junior most permanent driver was retrenched from service.
5. The appellant had alleged that 4 persons who were junior to him were retained in service while he was removed from service under the cloak of , retrenchment. According to the appellant, 4 persons, namely Abdul Waheed, Saifur Rehman, Mehar Hussain and Mashkoor Ahmed were, junior to him. However, MrAzhar Saeed has stated in his affidavit-in-evidence that the above drivers were badli drivers. He has produced their appointment and termination orders. Annexure 'A-2' is an order, dated 3-11-1982 appointing Abdul Waheed as badli driver for a period of 2 months in place of permanent driver Muhammad Aslam, who had fallen sick. Annexure 'A-3' shows that he was paid off on 3-2-1983. Similarly, Annexure 'B-2' shows that on 23-9-1982, Saiful Rehman was appointed as badli driver for 2 months. Annexure '13-3' shows that he was paid off on 31-10-1982. Annexure C-2' shows that on 2-9-1982, Mehar Hussain was appointed as badli driver for 2 months. Annexure 'C-3' shows that he was paid off on 25-9-1982. Thus, the contention of the respondents that services of the 3 drivers were terminated before the termination of service of the appellant on 3-3-1983, stands supported by these documents. Exbt. 'D-3' shows that Mashkoor Ahmed was appointed as badli driver on 20-2-1983 for 2 months in place of permanent driver, Muhammad Amin. Annexure 'D-3' shows that he was paid off on 6-3-1983. From the evidence on record it is clear that 3 persons mentioned by the appellant were badli drivers and the services of them were terminated before the removal from service of the appellant and the services of the 4th driver were also terminated 3 days after the removal from service of the appellant. Therefore, his contention that his retrenchment is mala fide because 4 persons junior to him were retained in service is disproved from the evidence on record.
6. It is submitted by Mr.MA.Khan, learned Advocate for the respond that no driver uptil now had been appointed in place of retrenched driver. The evidence on record does not show that any other driver had been appointed in place of the appellant. The evidence of Azhar Saeed that as a matter of policy, the company had decided to withdraw house drivers of the Directors had not been challenged. After re-call of the house drivers from Directors, it was only natural that some drivers would become surplus and as such the contention of the respondents that one driver' had become surplus does not appear to be mala fide or unreasonable. Efforts of every commercial concern are always to increase profits and to reduce expenses and, therefore, this action of retrenchment cannot be considered to be mala fide or illegal.
7. Mr.Azhar Saeed has stated in affidavit in evidence in para 6 that one Driver, Grammar had retired on 1-4-1983; Yaqoob Khan who was due to retire on 1-4-1984, had died on 13-12-1983; and driver Muhammad Amin was due to retire on 1-4-1984, but, the respondents had not appointed any driver in their place nor it was their intention to appoint any driver. This evidence is neither challenged nor rebutted.
8. It is settled principle of law that the party who alleges mala fide has to prove the mala fide and also Specifically plead alleged mala fide action of the respondents. Reference may be made to 1986 SCMR 582. In the instant case, the appellant `has merely made Vague allegation that the Managing Director was annoyed with him, hut, neither in his grievance petition nor in his affidavit- in evidence, he has given details or reasons as to why the Managing Director had become annoyed with him. Mere vague allegation cannot be considered as proof. The mere fact that he was recalled from house of the Managing Director would also not indicate any annoyance on the part of the Managing Director specially in view of the fact that there is no evidence that any other driver was placed on the house duty with the Managing Director. The appellant was recalled from house duty on 31-1-1983 and was removed from service after more than one month afterwards. All these circumstances disprove the allegation of mala fide on the part of the Managing Director.
9. It is further submitted by Mr.Abdul Majeed, learned representative for the appellant that he was not served with the 'written order of termination of service. It has come in evidence of Mr.Azhar Saeed in paras. 13, 14 and 15 that termination letter, dated 3-3-1983 was given to the appellant, but, the appellant had refused to accept the same, therefore, the letter was sent by registered post to the residential address of the appellant which was returned with the endorsement `refused'. He further stated that thereafter as a measure of abundant caution, the termination letter was also published in the Morning News of 10-3-1983 and the union was also informed about this termination, vide letter, dated 13-3-1983. In view of this evidence, it cannot be said that there was no order, in writing, terminating the services of the appellant. This termination order has been produced along with the grievance petition. This letter was addressed to the appellant and shows that he was retrenched as a consequence of decision to withdraw driver from house duty. It also shows that the Cheque for the arrears of salary and other dues along with one month's pay in lieu of notice was sent along with the termination letter. Thns, there had been compliance of Standing Order 12(3) and the termination order cannot be vitiated on that ground.
10. The second objection of the respondents was upheld by the learned Labour Court that the grievance petition was time-barred. It appears that the grievance petition was initially filed on behalf of the workman represented by Brooke Bond (Pakistan) Ltd. Workers Union. The name of the workman was not mentioned in the title of this petition, but, its contents showed that the aggrieved worker was appellant Qa"sim Ali Khan. This petition was filed on 25-5-1983 and was admittedly within time. When objection was raised by the respondents in their written statement, the appellant filed amended petition in his own name on 27-8-1983 which apparently was time-barred. It is contended by MrAbdul Majeed that the General Secretary of the union as Steward could take grievance of workman to the Labour Court as provided under section 25-A, I.R.O.
1969. It is further submitted that though by way of abundant caution, the appellant had filed amended petition, but, still the first original petition cannot be considered as not properly filed as it clearly spelt out in the body the name of workman on whose behalf, the petition was filed and the nature of the grievance.
11. In view of my findings that appellant had rightly been retrenched and there was no mala fide act on the part of the respondents in retrenching him, I need not to discuss this legal objection as to the validity of the original grievance petition.
12. For the aforesaid reasons, the appeal is dismissed.