This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order of Punjab Labour Court No, 9 dated 29-1-1989 allowing the grievance petition of the respondent and directing his reinstatement in service and the order of the Punjab Labour Appellate Tribunal dated 26-4-1989 dismissing the petitioner's appeal.
2. Facts, briefly stated, are that Muhammad Amir respondent No, 3 herein was employed as a Painter with the petitioner, a Construction Company. He claimed that the Management of the petitioner company was annoyed with him because he used to demand his legal rights and press for the payment of full service benefits. He was threatened with dire consequences for raising such demands and on 20-11-1985 when he came for duty, he was confronted at the gate by Haji Bashir Ahmad, Kamal Din and Muhammad Iqbal. The latter two were asked by the former i,e, Haji Bashir Ahmad to teach a lesson to the respondent for raising demands. He was accordingly given beating and thrown out or the premises. Haji Bashir Ahmad told the respondent that his services stood terminated and that he should never come to the office again. Respondent gave a grievance notice to the Management on 19-2-1986 which embodied the aforementioned allegations but it was not responded to by the management. Respondent thereafter brought a grievance petition on the aforementioned allegations before the Labour Court praying therein that he may be reinstated with all the back benefits. Management resisted the grievance petition by filing a written statement controverting the allegations made by the respondent. It was denied that the respondent "was refused entry or punished and thrown out". Stand taken by the Management was that the respondent was engaged against a temporary job. He worked in the months of September and October, 1985, "absconded on 24-11-1985 of his own and left the service without any information". An objection was raised by the Management that the respondent was a purely temporary employee who had put in less than three months continuous service and, therefore, he had no locus standi to file the grievance petition.
3. Both the parties led evidence in support of their respective contentions. Respondent/employee appearing as his own witness, inter alia, deposed that he had been working as a painter with the petitioner establishment for the last 17/18 years. The company was not paying him his full dues. He used to press for the same which annoyed the management. He was, therefore, given beating and physically thrown out of the premises at the instance of Bashir, the proprietor of the petitioner- company and was told that he was dismissed. It was complained by the respondent that he was not given any notice or charge-sheet or any written order terminating his services. Abdul Hamid, the Manager of the petitioner-company, appeared as RW-1. He stated that the respondent was appointed on purely temporary basis. He had been working on daily wages. He was, however, provided with all the facilities and benefits under the Labour laws. Indexation and cost of living allowance was also paid to him. The witness stated that he had not terminated the services of the respondent and the latter never informc 1 him that he had been dismissed by anybody or that he was prevented by any person from performing his duties. The witness also deposed that the total number of the employees working in the store and the office of the petitioner-company never exceeded 19. He, however, admitted in cross-examination that the total number of the employees of the petitioner concern in Pakistan was 100. The witness further stated that the respondent had worked for less than three months after his appointment on 14-9-1985 though he had been working even prior thereto off and on.
4. Learned Labour Court on consideration of the evidence adduced by the parties came to the conclusion that the respondent/employee "had been working continuously though temporarily". He was entitled to the protection of Standing Orders Ordinance and, as such, his service could only be terminated through an order in writing giving explicit reasons for termination. Oral termination of the respondent/employee was accordingly held to be unsustainable and he was ordered to be reinstated vide order dated 29-1-1989 but back benefits were not allowed to him as the Labour Court held that he was being reinstated on technical grounds.
5. Aggrieved with the aforementioned order of the Labour Court, petitioner-company assailed it in an appeal before the Punjab Labour Appellate Tribunal. Respondent/employee also preferred an appeal to claim the back benefits. Both the appeals were disposed of by the Tribunal through a single order dated 26-4-1989. Appeal of the petitioner-company directed against the reinstatement of the respondent was dismissed whereas the respondent's appeal was partly accepted allowing him 50% back benefits.
Learned Appellate Tribunal repelled the petitioner's contention that he had left the service of his own and that he was not given any beating at the instance of the management or thrown out of service. Learned Tribunal observed that the respondent enumerated all the allegations in the grievance notice addressed to the employer and "If the assertions made in the grievance notice had been false or if the employer had wanted that the respondent should continue to discharge his duty, he should have been readily informed by way of replying to the grievance notice that he should come on duty and that his services were not terminated." Learned Tribunal took the view that since the case of the petitioner-company was that it had not terminated the service of the respondent orally or in writing, "he continues to be in service till his services are legally terminated."
Learned Tribunal did not accept the plea of the petitioner-company that Standing Orders Ordinance was not applicable to its establishment. It was noted that the petitioner-company had not taken any such objection in the written statement and its witness RW-1 had admitted that the total number of employees of the petitioner throughout Pakistan was 100. It was thus held by the Appellate Tribunal that the Standing Orders Ordinance was applicable to the petitioner-company and "if the services of the respondent have been terminated orally, then there is a violation of Standing Order 12(3) and such a termination is not sustainable". Learned Tribunal declined to consider the evidence adduced by the petitioner to show that the respondent was a daily wager "since such a plea was not taken in the written statement" and held that on the petitioner's own showing, respondent was a temporary employee and "even a temporary employee can be terminated from service by an order in writing as required by S.O. 12(3) of Standing Orders Ordinance, 1968". Taking this view of the matter, learned Appellate Tribunal upheld the order of Labour Court directing the reinstatement of the respondent. As regards the back benefits, Appellate Tribunal found that the respondent was entitled thereto as he had remained jobless ever since his termination. Respondent was, however, allowed 50 per cent of back benefits. Validity of these orders has been brought under challenge in this Constitutional petition.
6. I have heard the learned counsel for the petitioner. He has contended that the respondent/employee had himself absented from duty and left the service of his own. His service was not terminated by the employer and, therefore, there was no occasion or need for passing any formal order in writing. This plea in fact involves the denial of the respondent's version that he was given beating and his services terminated orally which version has been duly attended to and accepted by the Courts below. The learned Appellate Tribunal, as noted above, has given good reasons for not accepting the plea of the petitioner. Respondent brought his grievance to the notice of the employer through a grievance notice but the latter took no action to redress it nor did he bother even to send a reply to the grievance notice controverting the allegations made therein.
It may pertinently be observed that the contention being raised by the learned counsel involves a purely factual controversy which has been determined against the petitioner by the two Courts after proper appreciation of the evidence on record. It cannot, therefore, be reopened by this Court sitting in Constitutional jurisdiction. The matter may also be examined from yet another angle.
Petitioner denies having terminated the service of the respondent. That being so, learned Appellate Tribunal has rightly held that on the petitioner's own showing, respondent continues to be in service until he is terminated in accordance with law. Now there is nothing on the record to show nor is it the case of the petitioner that it ever proceeded against the respondent for his alleged absconsion/absence from duty. If the respondent had really absented from duty as alleged, petitioner should have proceeded against him in accordance with law.
7. Next contention of the learned counsel for the petitioner was that being a temporary employee, respondent as per the provisions contained in Standing Order 12(2) was not entitled to any notice before the termination of his service and as such he could not take the benefit of Standing Order 12(3) which enjoins that the service of a workman cannot be terminated except by an order in writing giving explicit reasons for the action taken. In support of his submission, learned counsel relied on a judgment of Punjab Labour Appellate Tribunal reported in 1980 PLC 79 wherein it was held with reference to S.O. 12(2) that "since no notice of termination is required in the case of a probationer as laid down in Standing Order 12(2), the question of communicating the termination order in writing to the probationer does not arise." I regret to say that I have not felt persuaded to accept this contention which appears to be based on misconception/misappreciation of the legal position contained in Standing Order 12, relevant provisions whereof are reproduced hereunder for facility of reference:-
12. Termination of employm ent.--(1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman.
One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice.
(2) No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay wages in lieu thereof to the employer if he leaves employment of his own accord.
(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal he may [take action in accordance with the provisions of] section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
A plain reading of the provisions aforequoted would show that there is a clear distinction between the notice of termination referred to in clauses (1) and (2) and the written order of termination required to be made under clause (3) of Standing Order 12. Clauses (1) and (2) speak of the notice of termination. Clause (1) lays down that if the service of a permanent workman is terminated for any reason other than misconduct, he will be given one month's notice or in lieu thereof, he shall be paid one month's wages. Clause (2), on the other hand, dispenses with such a notice in the case of temporary workmen, probationers or `Badlis'. Clause (3) of Standing Order 12 is wholly independent provision which makes it obligatory for the employer to pass an order in writing when he terminates the services of a workman or removes, retrenches, discharges or dismisses him from service and it further requires that the order so passed must explicitly state the reason for the action taken. Clause (3) of Standing Order 12 has no nexus at all with clause (2) and, therefore, classes of workmen (temporary, probationers and Badlis) who under clause (2) are not entitled to the notice of termination cannot be deprived of the beneficial provision of clause (3). It may Pertinently be observed that clause (3) speaks of a "workman" which term should ordinarily include all classes of workmen enumerated in clause (a) of Standing Order 1. It may be noted that Standing Order 1 classifies workmen as (1) Permanent, (2) Probationers, (3) Badlis, (4) Temporary and (5) Apprentices. C Clause (3) of Standing Order 12 which is a mandatory provision, in my view, applies to all classes of workmen irrespective of the fact whether they are I permanent or temporary, Badlis or Probationers.
Learned counsel relying upon the aforenoted judgment of Punjab Labour Appellate Tribunal (1980 PLC 79) sought to argue' that clause (2) of Standing Order 12 is an exception to the general rule laid down in Standing Order 12(3). Argument of the learned counsel is misconceived but it appears to be based on the following observations in a Karachi case of "Messrs Rashid Textile Mills Ltd., Karachi v. Rafiq Wali and 2 others" 1976 PLC 181 which were reproduced in the case cited by him:- "The mere perusal of provision of law makes it glaring that Standing Order 12(2) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 does not necessitate the service of notice before the termination of services of a probationer. Standing Order 12(2) creates an exception to the general rule as laid down in Standing Order 12(3) that every workman will be served with a notice in writing before his services are terminated."
I have gone through the judgment in the Karachi case. A point was raised in that case that no notice was given to the employee/respondent therein before termination of his service, and, therefore, the employer had violated the provisions of Standing Order 12(3). The contention was repelled by the learned Judge with the observation that the employee was a probationer when his services were terminated on the ground of unsatisfactory work and that "Standing Order 12(2) does not necessitate the service of notice before the termination of services of a probationer". The learned Judge further proceeded to observe that "no notice was necessary because Standing Order 12(2) creates an exception to the general rule laid down in Standing Order 12(3) that every workman will be served with a notice in writing before his services are terminated". There can be no cavil with the view that no notice is necessary for terminating the services of a probationer or for that matter of any temporary workman as it is specifically so provided in Standing Order 12(2) but the further observation that the Standing Order 12(2) creates an exception to the general rule laid down in Standing Order 12(3) is not quite correct. The observation in question appears to be the result of some typing/printing error because by no stretch of reasoning, S.O. 12(2) can be said to be an exception to S.O. 12(3). S.O. 12(2) in fact is in the nature of an exception to S.O. 12(1) and if I may say so with respect, this is what the learned Judge of Karachi High Court intended to lay down. This view finds further support from the fact that the general rule referred to by the learned Judge namely "every workman will be served with a notice in writing before his services are terminated" is contained in S.O. 12(1) and not S.O. 12(3).
Apart from what has been said above, judgment of the Punjab Labour Appellate Tribunal as also of Karachi High Court referred to above are . distinguishable on facts. In none of these cases, services of the employee were terminated orally and as such question of infringment of Standing Order 12(3) did not arise therein.
In the aforesaid view of the matter, I find no force in the contention of the learned counsel that the respondent being a temporary workman, his services could be terminated by an oral order and it was not necessary to comply with the provision of Standing Order 12(3). Since the petitioner- company had admittedly not passed any order in writing terminating the services of the respondent, learned Courts below have rightly set aside the impugned termination being violative of Standing Order 12(3). The impugned orders of learned Labour Court and the Appellate Tribunal are not open to any exception. Writ petition has no merit and the same is accordingly dismissed in limine.