DECISION This appeal is directed against the order of learned Presiding Officer, Sind Labour Court No, V at Karachi, dated 29-8-1988, whereby he dismissed the grievance petition under section 25-A, I.R.O., 1969 filed by the appellant.
2. The case of the appellant, in brief, is that he was working as a sweeper with the respondents when his services were terminated on 31-8-1987 on the ground of retrenchment. It is alleged by the appellant that in fact his services were terminated because of his trade union activities and the order of termination was mala fide and illegal. After serving the grievance notice upon the respondents, the appellant filed his grievance petition before the learned Labour Court. This petition was resisted by the respondent on the ground that due to reduction of the number of flights, the services of the appellant became surplus and, therefore, he was retrenched. They denied to have victimised him because of his trade union activities.
3. I have heard Mr. Khalilur Rehman, the learned representative for the appellant and Mr. M.A. Khan, the learned Advocate on behalf of the respondents.
4. Only the appellant has filed affidavit-in-evidence in support of his contentions. The respondents did not file any affidavit-in-evidence in rebuttal.
5. Admittedly the appellant was appointed as a temporary sweeper from 1-7-1985 and was made permanent from 15-1-1986. In affidavit-in-evidence, the appellant had stated that the contents of his grievance petition be read as evidence. In his petition, he has alleged that he was an office- bearer of the Union of the workers of the respondents and that he was representing his co-worker, George Miclal Vecro in domestic enquiry, whereupon the Manager Administration of the respondents became furious and had asked him to withdraw from the proceedings to which he did not agree. It is, therefore, contended that the appellant was victimised under the colourable garb and cloak of retrenchment. In his cross-examination the appellant has admitted that at the time of his termination, the services of 9 other employees were also terminated and that the respondents provides catering services to Lufthansa Airlines and the flights of Lufthansa Airlines had reduced from 12 to 7, but, flights of Singapur Airlines had increased by two flights and the flights of British Airways had increased by three and one flight of Swissair was also increased and that the respondents provide catering service to all the aforesaid Airlines. In the reply to the grievance notice, the respondents had admitted that they did provide catering service to the British Airlines. If the evidence of the appellant is accepted as correct, then, it would appear that there is reduction of 5 flights of Lufthansa; whereas there had been total increase of 6 flights in the case of other Airlines to which the respondents provide catering service. This evidence of the appellant has come in cross-examination, but, on oath, which was not rebutted by any evidence on oath, produced by the respondents.
6. It is argued by Mr. M.A. Khan, the learned Advocate for the respondents that it was not necessary for the respondents to examine any witness and that the admissions of the appellant in his cross- examination as well as the averments made by the respondents in the written statement were sufficient to rebut the claim of the appellant. He has relied upon 1985 PLC 735. In the reported case, the Labour Appellate Tribunal did not accept the plea of the worker that retrenchment was colourable exercise of power and mala fide. Their Lordships while deciding the Constitutional petition against the order of the Sind Labour Appellate Tribunal had observed that "this is a question of fact whether the action taken by the employers is mala fide and with colourable exercise of power or not, which has been adverted to by the two Courts below and the Labour Appellate Tribunal has dealt with this question of fact adequately in paragraph 12 of the decision impugned before us and has given sound reasons, hence, we do not feel inclined to interfere in the Constitutional jurisdiction." Further their Lordships observed that "if the respondent No, 1 did not produce any witness before the Labour Court and deemed it fit to close the case leaving it open to the Labour Court to decide on the basis of documents produced then it was so done by the respondent in consonance with legal rights and nobody can prevent him from exercising that right." Apart from the written statement, a number of documents are filed by the employer in that case which were considered by the learned Labour Court sufficient to prove their plea.
7. In 1986 PLC 352, the Division Bench of Sind High Court, Karachi, had observed that "in the Constitutional petition disputed facts cannot be raised".
8. This Tribunal, as a Court of appeal can go into the question of facts. The main question of fact that requires consideration is whether the work load of the respondents so decreased that the retrenchment was justifiable or it was only a colourable exercise of powers of retrenchment to punish the appellant. With regard to written statement filed by the respondents, a reference may be made to the case of Mst. Khairun Nisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972 SC 25. Their Lordships have observed that "written statement cannot be the exhibit in case without the person filing same being examined in Court. The statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case." Admittedly, in the instant case the person who signed the written statement has not been examined by the respondents. In fact no person was examined by them, A therefore, this written statement cannot be considered as evidence to rebut the evidence on oath of the appellant.
9. The averment of the appellant on oath that he is an office-bearer is not disproved and so also the statement that the Manager Administration became annoyed with him because he was representing his co-worker, George Miclal Vecro in the enquiry proceedings. During the course of the arguments, Mr. MA. Khan, the learned Advocate for the respondents submitted that this ground of the appellant has got no value because he was removed from service on 31-8-1987, while the enquiry was also held on 31-8-1987, and, therefore, it cannot be said that the appellant was victimised because he had represented the co-worker in the enquiry proceedings. It may be a co- incidence that the appellant was also retrenched on the date when the enquiry was conducted against the co-worker, but it also lends some force to the contention of the appellant that he was retrenched to disenable him from representing the co-worker in the enquiry.
10.As already pointed the evidence on oath of the appellant shows that as against the reduction of 5 flights of Lufthansa, there was an increase of 6 flights of other Airlines to whom also the respondents provide catering service. So far as the number of flights is concerned, it cannot be considered that they had been decreased. Whether the workload had decreased or not, it is again the question of fact which would he within the knowledge of the respondents, who had chosen to produce no evidence. The fact that the workload had not decreased is also apparent from the application moved before the Labour Court on 19-12-1987 by the respondents offering re- employment to the appellant as one sweeper had allegedly resigned from the respondents' service. Apart from this statement in application that the sweeper had resigned, there is no evidence to show that this offer was made because of the resignation of the sweeper. No such question had been suggested to the appellant that any sweeper had resigned. He, however, had admitted in his cross-examination that offer was made to him, but, he had declined because there was reduction in the salary and there was a probationary period of 3 months.
11. It is submitted by Mr. M.A. Khan that the plea of increase in flights was not raised by the appellant in his grievance notice or grievance petition, therefore, he cannot raise this plea in appeal. The fact that there was an increase in the flights had come in evidence in the Labour Court. In the grievance petition, the appellant has alleged in para. 5 that the respondents terminated the appellant from post under the so-called garb of retrenchment as the appellant had refused to act upon the directions of the Manager Administration and his agents. In the grievance notice in para. No, 'C' the appellant had alleged that "in one way the flights of Lufthansa has been reduced in the other way flights of British Airlines has been added and thus as a matter of fact the volume of work has been increased and not decreased. "In view of these averments in the grievance notice and the grievance petition. it cannot be said that the new pica has been raised by the appellant. Even, otherwise to decide as to whether the retrenchment, as ordered by the respondents, was justified or it was colourable exercise of powers, the Labour Court as well as this Tribunal has to go in all the questions of facts, as provided under clause (5) of section 25-A, 1969.
12. Considering the facts and circumstances and the evidence on record, it appears that the appellant had earned displeasure of the management of the respondents because he was- representing his co-worker George Vecro against whom enquiry was being held on the date on which the appellant was retrenched from the service. The mere fact that during all the years, the respondents had not taken any action against the office-bearers of the trade union would not necessarily mean that they cannot do so in the instant case. It all depends upon the facts and circumstances of each case. The circumstances in the instant case pointed that in spite of fact that the decrease of volume of work was not proved by the respondents, the appellant was removed from service by way of retrenchment on the same day on which the enquiry was being held against George, for whom he states to be acting as a co-worker. I have already pointed that all these averments of the appellant have gone unrebutted. In my opinion, therefore, the impugned order of retrenchment passed by the respondents is mala fide and is liable to be set aside. I, therefore, allow this appeal and set aside the impugned order of the Labour Court and direct the reinstatement of the appellant with back benefits.