DECISION These two appeals are directed against the order, dated 8-12-1988, passed by the learned Sindh Labour Court No, 1 at Karachi. As both these cross appeals are against the same impugned order, therefore, I would dispose them of by this single Decision.
2. The brief facts of the case are that the workman, Muhammad Ishaq, hereinafter called the appellant, was a Doorman working with Messrs Shezan International Ltd., Karachi, hereinafter referred to as the 'respondents when on 1-8-1987, his services were terminated by oral order. After serving the grievance notice, he filed the grievance petition before the learned Labour Court. The respondents resisted the application on the ground that they have abolished the post of Doorman, therefore, the services of the appellant were no more longer required. They averred that his services were terminated by written order, but, he refused to accept the notice. The grievance application of the appellant was allowed by the learned Presiding Officer, Singh Labour Court No, 1 on 6-12-1987, against which an appeal bearing No,. Kar. 434/1987 was filed in this Tribunal. This Tribunal, vide its order, dated 23-2-1988, set aside the impugned order holding it to be an ex parte order and directed that Labour Court to decide the case on merits. It appears that alongwith notice of this appeal, certain documents were served upon the appellant in this Tribunal including the order in writing of termination of his service. The learned Labour Court relying upon a Decision of Honble Supreme Court in the case of Muhammad Rauf v. Messrs Makran Fisheries Ltd. and another, reported in 1981 SCMR 631, ordered the reinstatement of the appellant and payment of consequential benefits to the appellant till the date of notice of termination of his services, in writing, was served upon him through this Tribunal alongwith the notice of appeal. The appellant has filed Appeal No, Kar. 446/1988 and the respondents had filed cross appeal No, KAR-7/1989 against the said order, dated 8-12-1988.
3. I have heard Mr. Khalil-ur-Rehman, learned Representative for the appellant and Mr. Naeem Bukhari, learned counsel for the respondents and have also gone through the record and proceedings of the case.
4. The appellant has examined himself and was cross-examined by the respondents. He states that he was a permanent workman of the respondents and that his services were terminated on 1- 7-1987, when he was told by Mr. Saifee Chaudhry that his services were no more required. In the cross-examination, he has denied the suggestion, that he refused to accept the termination letter in writing but has admitted that he had received this letter through the Tribunal in Appeal alongwith the copy of appeal and other documents which he has produced as Ex. A.W. 1/9. These documents also contain the letter of termination of service to which I will advert to later.
5. The respondents have not examined the person who had filed the reply statement and, therefore, the reply statement would have to be kept out of consideration, as it cannot be considered as evidence. They have, however, examined one Naseer Ahmed, Office Assistant in the office of the respondents, who has not denied the averments of the appellant that he was a permanent workman. He has, however, admitted that appellant was working in the respondents establishment since 1986, but, he did not know whether the appellant was on contract basis. In view of this evidence, the assertion of the appellant that he was a permanent workman stands unrebutted, therefore, the learned Labour Court's findings that the appellant was a permanent workman is correct.
6. The respondent's witness has stated that he had tried to serve the written order of termination of service upon the appellant in presence of Mr. Irfan Ahmed and Mahmood Ahmad, but, he had refused to accept. He has produced letter of termination as Exbt. R.W.1/1 bearing endorsement that the appellant had refused to accept the same and also purporting to bear the signatures of Mahmood Ahmed and Irfan Ahmed. These witnesses Mahmood Ahmad and Irfan Ahmed have not been examined in support of this contention of the respondents. The respondents admittedly did not send the termination letter through registered post on the last known address of the appellant.
Admittedly they did not reply to the grievance notice, nor did they send the letter of termination after receipt of the grievance notice. This letter of termination bears the signatures of Mr. Muhammad Waseem, who passed the order of termination, hut, he has not been examined. The appellant has averred that Mr. Saifee Choudhry had told him that his services were no more required. This statement of the appellant has not been challenged in his cross-examination nor Mr. Saifee Chaudhry has been examined to rebut this statement of the appellant. Under the circumstances, the findings of the learned Labour Court that this order of termination, in writing, was not served upon the respondents does not call for interference. It also looks doubtful, if at the time, when the services of the appellant were terminated, this order was even passed.
7.However, the fact remain that this order, in writing, was produced by the respondents alongwith the Memo. of appeal when they had filed appeal against the order of the learned Labour Court dated 6-12-1987, whereby the grievance petition of the appellant was first allowed. Admittedly this order of termination of service was served upon the appellant through this Tribunal alongwith notice of appeal.
8. This letter which has been produced through the appellant alongwith the notice of appeal and has also been produced by the witness of the respondents as Exbt. R.W.1/1, is dated 30-7-1987 and it reads as under:-- Termination of services.--The post of general shift chowkidar Doorman has been abolished, you have therefore become superfluous for our requirements. Your services are therefore terminated with immediate effect i,e, 1-8-1987.
Sd/- Muhammad Waseem C.C.:
1. Security Officer, SIL-Karachi for information
2. Accounts Deptt. SIL-Karachi and necessary action."
3. Personal Deptt. SIL-Lahore
9. This order shows that the post of general Shift Chowkidar had been abolished, therefore, the services of the appellant were no more required. In the cross-examination of Mr. Naseer Ahmed, it has come that they have 3 other Doormen and the appellant was a fourth Doorman and the respondents were not in need of fouth Doorman. It has also come on record as to when the other 3 Doormen were employed which shows that they were senior to the appellant. The appellant neither in the grievance application nor in grievance notice nor even in his affidavit-in-evidence alleges any mala fide against the respondents. He also does not allege that any Doorman has been appointed in his place or that any of the working Doorman was junior to him or that more than 3 Doormen were working with the respondents.
10. Therefore, the retrenchment of the appellant does not violate Standing Order 13. But, the only point that requires consideration is whether the provisions of Standing Order 12(3) have been complied with. It may be pertinent to reproduce Standing Order 12(3), as under :-- "The services of a workman shall not be terminated, nor shall a workman be 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."
11. It appears that the appellant was appointed as fourth Doorman much later than the appointment of the other 3 Doormen. There is nothing on record to show as to for what reason the post of fourth Doorman was abolished. It is contended by Mr. Khalilur Rehman that in fact no order in writing was passed but the appellant had been removed from service at the whim of Mr. Saifee Chaudhry and in order to cover up this illegal action, the respondents had manipulated this letter after the appellant had filed the grievance application. It is submitted that there were no circumstances to justify the abolition of the post of the Doorman and this reason has been shown in the order, subsequently for formal compliance of the requirement of Standing Order 12(3). It is submitted that the requirement of Standing Order 12(3) is not that merely reasons are to be shown, but the reasons should be valid, reasonable and justifiable, which could be upheld in Court of Law as this provision itself entitles the workman to come to Labour Court against such an order. It is submitted that nothing has been brought on record by the respondents to justify The abolition of the post of fourth Doorman. Mr. Naeem Bukhari, the learned counsel on the other hand has submitted that no mala fide has been alleged against the respondents and there was no reason for them to remove the appellant without cause. It may be pointed that the grievance application, grievance notice and even the affidavit-in-evidence was filed by the appellant before the service of the notice in appeal along with which he was given the order of termination of his service, in writing. No doubt, after the remand, he could have amended his grievance application or filed further affidavit-in-evidence, but, he is an illiterate workman and cannot understand the necessities of the technical legal requirements. On the other hand, Mr. Khalilur Rehman contends that even if no mala fides are alleged, still mala fides may be gathered from the facts on record as this order has been subsequently manipulated to meet with the requirements of Standing Order 12(3).
12. I find that there is some substance in this argument of Mr. Khalilur Rehman. It appears that to meet with the requirements of Standing Order 12(3), the respondents appear to have lost sight of Standing Order 12(1) which requires that for terminating services of permanent workman, he shall be given one month's notice, or one month's pay in lieu thereof. It is always found that in cases, where the workman is removed from service without notice, the order terminating the service always contains a clause, that he would be paid one month's pay in lieu of notice. The termination letter which I have already reproduced above clearly shows that there is no mention of such notice or payment in lieu of notice. In my opinion the compliance of Standing Order 12(1) is pre-requisite of the order of termination of service under Standing Order 12(3). Thus, even the order served alongwith the notice of appeal would not be considered a proper order of termination of service as required under Standing Order 12(3) read with Standing Order 12(1); and dismissal of service on the basis of such an order is not sustainable.
13.The requirement of Standing Order 12(1) is mandatory. Non-compliance of this provision also lends support to the contention of Mr. Khalilur Rehman that the reason of abolition of the post of Doorman shown in the order is only an attempt to comply with the formal requirement of Standing Order 12(3) and not in accordance with the spirit of that Ordinance. It may also be pointed that in Standing Order 12(3), only word 'reason' is not used, but, it provides the reason should be explicitly stated. Word 'explicit' has been defined in Black's Law Dictionary to mean not obscure or ambiguous, having no disguised meaning or reservation. Clear in understanding". The order, no doubt, shows that the appellant was removed because the post of Doorman was abolished, but, it is not clear in understanding or explicit as to why the post of Doorman was suddenly abolished. In the case of Aitzaz Ahsan and others v. Chief Election Commissioner and others, reported in P.L.D.
1989 Lahore 1; a Division Bench of Lahore High Court has observed that "every word of Statute has to be given effect to." If the purpose of legislature in enacting the Standing Order 12(3) was that employer should merely state some reason for terminating the services of the employee, the word 'explicit' would not have been used. The use of word explicit requires the employer to give reason, which is not ambiguous and which is understandable and from which employee can clearly understand the actual reason for his removal.
14. The facts of this case are obviously distinguishable from the facts of the case reported in 1981 SCMR 631 and the law laid down by their Lordships in that case would not be applicable to the present case.
15. For the aforesaid reasons, I allow the Appeal No, KAR. 446 of 1988 and order reinstatement of the appellant with back benefits from the date he has been removed from service after the impugned order was passed and would dismiss cross-Appeal No, KAR 7/1989. Orders of this Tribunal be implemented within one month.