MUKHTAR AHMED JUNEJO, J.--This Constitution petition challenges an order dated 1-3-1988 passed by learned Sindh Labour Appellate Tribunal (hereinafter to be referred to as the Tribunal) in Appeal No, KAR-464 of 1987.
2. Admittedly Petitioners Ejaz Hussain and Zareen Shah were employees of respondent No, 1 M/s. Hotel Jabees Limited, Karachi from 1986, till 16-5-1987 when their services were terminated on the ground of "reorganisation in establishment of respondent No, 1". Both the petitioners invoked jurisdiction of the Labour Court under section 25-A of the I.R.O. and moved their grievance applications, challenging termination of their services. Under an order dated 15-12-1987 learned Labour Court accepted both the grievance applications and ordered the petitioners to be reinstated in service, without allowing them back benefits. Aforesaid order directing reinstatement of the petitioners was challenged by the respondent No, 1 under Appeal No, KAR-464 of 1987. Said order in respect of disallowing of back benefits was challenged by the petitioners in Appeals Nos, KAR-503 and KAR-504 of 1987. Under the impugned order dated 1-3-1988, the appeal filed by the respondent No, 1 was accepted. The appeals filed by the petitioners were dismissed on 17-3-1988.
However, it is the former order dated 1-3-1988 that has been challenged in this petition.
3. Mr. Raja Shamsuzzaman, learned counsel for the petitioners argued that the services of the petitioners were terminated under Standing Order 13 without following the principle of last to go first. Learned counsel for the petitioners referred to cross-examination of Wali Muhammad witness for the respondent No,
1. It was argued that room-bearers, waiters and bearers belonged to the same category of employees. It was further argued that as per admission by witness for the respondent No, 1, the respondent No, 1 consisted of Hotel Jabees, Funland, Playland and Kababish and if there was need for retrenchment in May, 1987 then the junior employees in the category of Room-Bearers, Waiters and Bearers of all the four concerns, should have been removed from the service and not the petitioners. It was further argued that an evidence was produced by the respondent No, 1 to rebut the allegation made by the petitioners that the persons junior to them were retained, while services of the petitioners were terminated. In support, learned counsel for the petitioners cited the cases of M/s. Conforce Limited v. Workers Union 1974 PLC 59 and Irfan Ali v.
M/s. Hotel Jabees, Karachi 1987 PLC 830.
4. Mr. Qamar Abbas, learned counsel for respondent No, 1 argued that services of the petitioners were terminated due to retrenchment in Hotel Jabees and that it had not been brought on record to show that action' of the respondent No, 1 in terminating services of the petitioners was fraught with mala fides or it was colourable exercise of the powers. Learned Counsel for the respondent No, 1 further argued that at a later stage the petitioners were offered employment when there were vacancies but they declined the offer. Learned Counsel for the respondent No, 1 defended the impugned order to be legal and proper and went on to argue that the onus was on the petitioners to establish that termination of their services was an act of victimisation. Learned counsel took legal objections that the employees of the respondent No, 1 alleged to be junior to the petitioners but retained in service, should have been joined as parties. Reference was made to the affidavit of Wali Ahmed witness for respondent No, 1 and it was argued that contents of the same were not challenged.
5. Each of the petitioners in his case filed in evidence his own affidavit as well as affidavit of his co- worker Abdullah. In each of the two cases the respondent No, 1 examined its Assistant Manager Syed Wali Ahmed Maulai. In his identically worded affidavits, one filed in each case, Syed Wali Ahmed stated that services of the petitioners and some other Room-Bearers were terminated on 16-4-1987 as they were found surplus to the requirements of the respondent No, 1 establishment and that the principle of "last-in-first-out" was strictly observed while terminating services of the petitioners. It was admitted that Siddique, Amin and Waheed Ali, mentioned in para. 5 of the affidavits of the petitioners, were employed by the respondent No, 1 but not as Room-bearers. That they were employed at Clifton Wali Ahmed. Further stated that after the month of Ramazan while the management felt the need to fill two posts, such notices were issued in accordance with the provisions contained in Standing Order 14 to the petitioners who did not agree to fresh employment. Consequently, the two posts were offered to the workers next junior to the petitioners namely Wali Muhammad and Rashid who accepted the same and who were re-employed. Syed Wali Ahmed defended retrenchment of the petitioners by the respondent No, 1 as legal and said that the same was done in accordance with the law and it was neither illegal nor mala fide.
6. According to the Standing Order 13 whereby 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. In this way all workers of a particular category in an establishment are to form one body out of whom the junior most would go first, if there is retrenchment. It was argued on behalf of the respondent No, 1 that the petitioners being room-bearers did not come in the category of waiters, bearers and table boys. In his cross-examination, the respondent's witness Syed Wali Ahmed admitted in both the cases that the respondent No, 1 establishment consisted of Hotel Jabees, Funland at Clifton, Playland and Kababish Restaurant, and that the room-hearers, waiters and bearers belonged to the same category and they can be transferred to Kababish Restaurant also, as the nature of their service was the same. In view of these admissions it is clear that the petitioners and the bearers, the table boys, the waiters etc. working at Funland, Playland and Kababish Restaurant belonged to the same category of workman for the purposes of Standing Order 13. As such the respondent No, 1 while terminating services of the petitioners should have, for the purposes of the Standing Order 13, considered all the waiters, bearers, table boys and room- bearers employed by him to he belonging to one category. In other words, if any waiter, bearer or table boy working in Hotel Jabees or in Funland at Clifton or Playland or in Kababish Restaurant was junior to the petitioners then he should have been retrenched first before retrenchment of any of the petitioners.
7. Allegation of the petitioners in their affidavits was that Siddique, Amin and Waheed Ali were appointed in their place on daily wages. Wali Ahmed in his two affidavits admitted that Siddique, Amin and Waheed Ali were employed at Clifton and moreover they were not employed as room- bearers. Facts and circumstances of the case, however, show that the respondent No, 1 retrenched the petitioners without following the letter and spirit of the Standing Order 13, learned Tribunal appears to have misinterpreted the evidence by observing that the petitioners had admitted in their cross-examination that when their services were terminated on 16-5-1986 along with few other workers they were junior most in their category. In his cross-examination Ejaz Hussain said that on 16-5-1987 the services of junior most persons were terminated and no worker junior to him B remained in service on or after 16-5-1986. Learned Tribunal overlooked the fact that this was in respect of Jabees Hotel only. This was clarified by Zarin Shah who said in his cross-exmaination that in the Saddar Branch of Jabees Hotel there was no junior to him and to other petitioner but there were some juniors in Clifton Branch where Siddique, Amin and Waheed were working. This shows that the management of Jabees Hotel. Funland, Playland and Kababish Restaurant did not follow Standing Order 13 while retrenching the petitioners.
8. The main point which appears to have influenced the mind of learned Tribunal was that the petitioners were offered re-employment under Standing. Order 14. In this respect no cognizance appears to have been taken of the allegations made by the petitioners that they were called by the respondent No,1 formally for re-employment, but were not taken on duty and that they were asked to tender their resignation and realise the arrears of pay etc.
9. Learned Tribunal appears to have ignored the cross-examination of respondent No,l's witness Syed Wali Ahmed, while holding that the question of transfer of the petitioners to Kababish Restaurant as waiters did not arise. Case of the respondent No, 1 that the petitioners being. room- bearers were not entitled to be transferred to Kababish Restaurant as waiters has been completely demolished due to the admissions made by Syed Wali Ahmed in the cross-examination, discussed above. Consequently, there is no basis for the finding recorded by learned Tribunal that the plea about three waiters working on daily wages had no relevancy with the admitted category of the petitioners.
10. Although we agree with learned Tribunal that the petitioners had not been able to make out that they were victim of alleged union activities, but we are of the considered view that there was no full compliance with the letter and spirit of Standing Order 13, when services of the petitioners were terminated. Fresh offer of re-appointment cannot legalise illegal termination of service even if respondent No,1 be accepted in toto. Aforesaid discussion shows that services of the petitioners were terminated illegally.
11.There is no evidence on record to show that the petitioners remained all along unemployed or that they did not work for gain during the period after termination of their services. No such evidence was brought on record.
12. As a result of the above discussion, we would accept this petition and declare the impugned order passed by the Tribunal to be of no legal effect. Consequently the order passed by the Labour Court on 15-12-1987 stands restored, except that the petitioners cannot be allowed hack benefits, No order as to costs.