DECISION This is an appeal against the order of learned Presiding officer, Sindh Labour Court No, II at Karachi, dated 10-4-1988, whereby he dismissed the grievance applications filed by the appellants and others.
2. The brief facts of the case art that the present appellants and other aggrieved workers, who filed the grievance petitions, were workmen working with the respondent No,1. The respondents on 22- 10-1986, allegedly terminated the services of all the 44 workers including the present appellants working in Conning, Doubling and Twisting departments of the respondents mills on account of a meeting of the trade union on 18-10-1986, in which the present appellants took active part and demanded the payment of Cost of Living Allowance and other allowances from the respondents. It is further alleged that the termination of service was made without any order in writing, showing any reason or ground for the termination of the services of the appellants. Aggrieved by this order of termination of services, the appellants and other 8 co-workers filed grievance petitions before the learned Labour Court. Four of the applicants dropped out during the proceedings before the learned Labour Court, while the learned Labour Court dismissed the grievance application of the remaining 9 workers, out of whom, the present 5 appellants filed the present appeal. The respondents resisted the application on the ground that the workmen of the 3 departments were all retrenched because of re-organization under which, all the 3 departments were given out on contract. They further contended that the 44 workers working in the said departments were all retrenched by general notice on the Notice Board and also by serving notice, in writing, showing the reason, on each of the workmen, who refused to accept the same, thereafter, notices were sent to them by registered post on their last known addresses.
3. I have heard Mr. Ghuncha Gul, Advocate for the appellants and Mr. Syed Gohar Ali Shah Gillani for the respondents and also gone through the record and proceedings of the case.
4. The fact that all the 44 workers working in the 3 departments viz., Conning, Twisting and Doubling, of the respondents mills were removed from service is admitted. It is also admitted by all the appellants in their cross-examination that these departments are now being run by a Contractor and they do not like to work under the Contractor. The appellants have produced in their cross- examination sealed envelopes, which purportedly were sent to them on the addresses admittedly given by them to the respondents. They have denied the contention that the notices were served upon them in person, but, they refused to accept the same. They have also denied to have received these notices through post.
5. The main points raised before this Tribunal during the course of the arguments are that this alleged retrenchment was mala fide and no reasonable ground is shown for the retrenchment even in the notice as required under Standing Order 12 (3). It is further submitted that in the absence of the order, in writing, as required under Standing Order 12 (3), being served upon the appellants, their termination of services would be illegal. It is also contended that the provisions of Standing Orders with regard to the retrenchment have been violated and the order was mala fide passed because the appellants actively participated in the trade union activities raising demands with regard to their rights.
6. I will first deal with the question as to whether there has been compliance of Standing Order 12 (3), which provides as under:- "STANDING ORDER 12 (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 reasons 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?
7. The witness of the respondents, Mr.Syed Taj Hussain Shah, Mills Manager of the respondents, has stated that all the 44 workers of Conning, Twisting & Doubling Departments were given letters of termination except one Naseem Gul, who was also on long leave, but they refused to receive the same and, therefore, letters were sent to them by registered post on their address. He further stated that notice of termination of service in respect of 44 employees was also affixed on the Notice Board of the factory. The appellants in their affidavits-in-evidence have not specifically denied that notice was affixed on the Notice Board but have stated that they did not see the same on the Notice Board. They have, however, denied that they had been offered letters of termination of service in the factory. All of them have, however, produced a sealed envelope each, which was sent to them by post and which bears the address which admittedly they had given to the respondents. All these envelopes bear the endorsement showing that either the acceptance was refused or the person care of whom the letter was addressed was not available on the address or the addressee was not available on the address. The specimen of these notices has been produced as Annexure R-2 with written reply of the respondents. The envelope addressed to the appellant, Mannan Gul and produced through him was opened by the Tribunal. It is a notice of termination of service alongwith forwarding letter. Forwarding letter shows that because appellant did not accept the termination letter on 2-8-1986, therefore, the attached termination order was being sent to him by registered post. The notice itself bears the subject "simple removal from service". It shows that because the management had failed to run the department itself and all its efforts to bring the production up to the standard and in requisite quantity had failed and, therefore, in order to save the entire mills from being closed, the management had decided that the departments be given on contract from 23-10-1986, and, therefore, discharged the appellant forthwith from the service. It also informed appellant that all the dues would be payable to him without delay from the office during office hours and also he would be pail one month's pay in lieu of notice. It further informed him that the Contractor had been directed to employ the appellant if he so desired and the Contractor had been supplied with the addresses of the workers available with the Management. This notice/termination letter is dated 22-10-1986 and forwarding letter is also dated 22-10-1986, though it appears to have been signed on 23-10-1986. The date on the envelope is 23-10-1986. This letter has same writing as on notice R-2.
8. Standing Order 12 (3) does not specifically provide that the termination letter should be served upon the workman nor does it fix the time within which it should be served upon the workman.
However, because under the said sub-clause the workman has also been given right if aggrieved by the order to take action in accordance with provisions of Section 25-A, I.R.O., 1969, therefore, it can be presumed that one of the implied requirements of this provision would be that the termination order should be supplied to the workman, otherwise, he would not be in a position to seek redress from the Labour Court. As no specific period is fixed under the law for the supply of this letter, it can be presumed, that the order has to be supplied to the workman within reasonable time. The respondents claim that they had tried to serve the notice upon the appellants in person on 22-10-1986, which fact has been denied by the appellants, though in cross-examination, it is admitted by the appellant Mannan Gul that they learnt about termination of their services on 22- 10-1986, when the workers of 'A' Shift were not given attendance cards. Under the circumstances, it does not appeal to reason as to why the respondents should not have tried to serve the termination letters upon the appellants in person on 22-10-1986. Anyhow no mode of service is provided under the Industrial Relations Ordinance, 1969, or the rules framed thereunder of the Standing Orders Ordinance, therefore, the notices sent by the respondents to the appellants on their last known addresses by registered post would be deemed to be sufficient compliance with respect to the requirement of service of the termination letters. Reliance in placed on PLD 1981 S.C.
225. A Anyhow even this non-receipt of the termination letter by registered post did not cause any prejudice to the appellants, who did serve the grievance notices and filed grievance petitions within the prescribed period of limitation. It implies that they were able to obtain letters of termination within time.
9. The next question that requires consideration is whether the reason given in the termination letters can be considered as explicit and reasonable. There is evidence of witness Syed Taj Shah that they were not able to bring the production in the 3 departments upto the specified standard or required quantity therefore, they gave these departments on contract. The appellants have contended that they were never informed prior to termination of service that their production was not upto the standard or according to the required quantity. The learned representative for the appellants has relied upon the case of Sethi Straw Board Mills Ltd., Rawalpindi v. Punjab Labour Court, Lahore and 2 others, reported in 1977 PLC 402. The facts of that case are that one Mali, who was working as a domestic servant in the bungalow of one of the senior officers was removed from the service on the ground that the provision of a Mali, as a domestic servant has been withdrawn.
However, the Labour Court and Tribunal came to conclusion that the appointment letter of workman showed that he was appointed as a workman in the mills and the order discontinuing this facility to the managerial staff of the mills had not been produced and in the absence of such an order, it could not be held that in fact what was given out as a reason for this discontinuance of the service of the Mali was in accordance with Law. In a Constitution Petition, the learned Single Judge of the Punjab High Court held "The Law requires the employer to give the reason in writing. It is not an idle requirement of the Law. In appropriate cases the employee is free to challenged the cause given on the ground that it is colourable exercise of jurisdiction on or is mala fide in fact or law." In the instant case the fact that the three departments were given on contract is admitted by the appellants in their cross-examination and there is no evidence on record to show that subsequently these departments were taken back by the respondents.
10. The learned Counsel for the appellants has also relied upon the decision of this Tribunal in Appeals Nos. HYD-79 to 90 of 1988, filed against Zeal Pak Cement Factory Ltd. In that case the workmen, appellants were removed on the ground that the period of their apprenticeship had expired. In that case, this Tribunal has observed that in the termination order reason shown was to be avalid, justifiable and reasonable reason. In that case the appellants had been continued to work in the establishment even after expiry of the original period of apprenticeship and, therefore, this Tribunal held that they could not be removed from service on the ground that their period of apprenticeship had expired was not a valid reason for termination of the services of the appellants. under the provision of Standing Order 12(3). In the instant cases, however, the main reason shown for termination of services of the appellants is that their departments had been given on Contract which fact is admitted and it further shows as to why the departments were given on contract, which is already discussed above.
11. The next question that requires consideration is as to whether these departments were given on contract with mala fide intention because of the trade union activities of the appellants. The burden of proof of mala fides is always on the party who alleges mala fides. Admittedly there were 2 unions of the workers in the respondents mills and one of them is the C.B.A. Apparently the appellants were members of the union which was not a C.B.A. and according to them this C.BA. was in collusion with the management. None of the appellants claim to be office-bearers, though they claim that along with other workers they had attended the meeting of the workers on 18-10- 1986, when certain demands were made. This meeting even, if it was held, was obviously attended by the workers even from other departments. If the respondents acted because of that meeting, then, the question arises as to why they did not close those departments. It is also not clear from the evidence on record whether all the 44 workers of the 3 departments which were closed had participated in the meeting. It is not the appellants alone whose services had been terminated but all the 44 workers of 3 departments were retrenched. Only 5 of them have come in appeal. The appellants have not been singled out by the respondents so as to raise the possibility of victimization. Furthermore, the respondents have shown their bona fides by inserting in the letter of termination of service, that they had directed the Contractor to employ all the retrenched workers, if they so desire. Admittedly the appellants do not want to work under the Contractor and there is no evidence to show that any of them approached the Contrator, who refused to employ them.
Mala fides can be inferred from the circumstance of each case. In the instant case, out of 300 workers working in respondents mills, only 44 workers working in 3 departments, which are admittedly given on contract, have been retrenched.
12. Mr. Syed Gohar Shah Gillani, the learned Counsel for the respondents has relied upon a decision of this Tribunal reported in 1980 PLC at page 1224. It was held therein that "formal requirement of termination of service was written order indicating explicit reasons so that the aggrieved workman can seek redress. Labour Court can go into facts and determine whether termination was on valid ground and not mala fide. Where the services were terminated as not required and redundant and the work was got done through contractor subsequently, the employer was within his right to select mode in which to get his work done." In 1983 PLC 981, this Tribunal had held that "termination of services of workers simpliciter on account of reorganization including giving of contract of work to independent contractor was permissible provided such action taken was bona fide and not as cloak to get rid of workers or to crush genuine union activities". In another Decision by this Tribunal in the case of Umer Din and 6 others who filed 7 appeals bearing Nos. KAR-128 to 134/1988 against Gulf Airlines, Karachi, the above view was followed. In that case also the services of workmen were terminated as the work they were doing was given away on contract. The management in the termination order had informed the respondents that they had arranged with the contractor to engage the employees, but, the workmen admittedly did not agree to work with the contractor.
Such retrenchment for the purpose of reorganization was upheld by this Tribunal. It was further observed that victimization had to be specifically proved.
13. In the cross-examination of appellant Manan Gul, it has further come on the record, that the workmen got all benefits according to the settlement from the respondents and they did not make any complaint against the respondents or against the C.B.A. union and that 2 office-bearers of the C.BA. union namely, Abdullah and Saeed were also retrenched alongwith the appellants. I find that none of them had filed appeal in this Tribunal. From the above circumstances, the allegation of mala fides does not appear to be proved.
14. The next point raised by the learned representative for the appellants is that persons junior to the appellants have been retained in service while the appellants have been removed. Admittedly some persons junior to the appellants have been retained but they have been retained in other departments of the mills. The words used in Standing Order 13 which provides for procedure of retrenchment require 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. It is significant to note that word used in Standing Order 13 is category and not establishment. The witness of the respondents, namely, Syed Taj Shah in cross-examination has stated that "one operator working at any kind of machine cannot be transferred to another machine as he would not be aware of the working of that machine". He had also denied the suggestion that the appellants could operate other machines in the factory and had shown his ignorance if Mannan Gul, Naseem and other workers were appointed in the Realing Department. It may be pointed that there is no positive evidence to show that the appellants were appointed in the Realing Department or that they could operate the machinery in any other section. According to the learned Counsel for the respondents, the workmen working in each department form separate category and all the workmen working in these departments were retrenched, therefore, there was no infringement of the Standing Orders Ordinance.
15. Word 'category' used twice in Standing Order 13 has not been defined either in Standing Orders Ordinance or in Industrial Relations Ordinance, 1969. It has been defined in Webster's Third New International Dictionary, to mean inter alia "a class, group, or classification of any kind." Unless, there is evidence on record to show that the workmen employed in different departments of the mills are inter-changeable or can work in any other section, the workers working in each section or department would form a separate class or group by themselves and would, therefore form a distinct category. As pointed above, all the workmen in these 3 departments were retrenched on the same day, therefore, there cannot be said to be any infringement of Standing Order 13. No other point was pressed before this Tribunal.
16. For the aforesaid reasons, I do not find any ground to set aside the impunged order of the learned Labour Court. The appeal is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.