1. I will dispose of the cases of all these applicants by single order as the facts and circumstances of the case of the applicants are the same and also they have common ground with the same prayer for reinstatement with full back benefits.
2. Briefly stated the case of the applicants is that they are workmen as Security Guards, in the Respondent-company. Their services were terminated on 4-7-1987 vide Annexures A to C to the grievance petition. It is next submitted by the applicants that nature of work performed by them was physical and manual. The respondents establishment is covered by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and as well as IRO 1969. The applicants claim in their grievance petition that their termination from employment is illegal and mala fide. After submitting grievance notices to the Respondent on 13-6-1987, they have come to this Court praying for reinstatement in service with full back benefits.
3. Respondents filed their Reply Statement in which they have denied the allegations and have stated that applicants were terminated bona fide on the ground mentioned in the letters of termination which is self-explanatory. They have admitted to have employed the applicants as Security Guards and by virtue of their duties, they were not workmen as they were performing supervisory duties as such their rights are not guaranteed, secured under law, award or settlement. They have further stated that the Respondents have abolished the Security Department which has been contracted out to someone else, hence they have no concern whatsoever with the Security Department as such they are not entitled to the relief sought.
4. In support of their contentions, applicants have filed their affidavit-in-evidence. Only Shareef was cross-examined and his cross-examination was adopted, in connected Case No,384/1987 on the request of the parties.
5. Respondents filed affidavit-in-evidence of Asif Mirza, Personnel and Industriat Relations Executive and was cross-examined by the Counsel for the applicants. His evidence is also adopted in other connected Case No,384/1987.
6. I have heard the learned Counsel for both the parties. I have also perused the record and proceedings.
7. Points for determination in this case are:-
(1) Whether applicants are workmen within the provisions of Standing Orders Ordinance, 1968 and IRO, 1969?
(2) Whether the termination of applicants were legal, just and proper?
(3) Whether applicants are entitled to relief sought?
(4) What should the order be?
FINDINGS
(1) In affirmative.
(2) In affirmative.
(3) In negative.
(4) As under.
8. POINT NO.1 It is contended by the applicants' counsel that both the cases were consolidated by the consent of the parties and evidence has been treated as common in both cases. They are 4 aggrieved persons out of which Muhammad Shareef has withdrawn his case during the course of proceedings on having accepted his termination letter and collected his full and final settlement.
9. There remains the case of three applicants which is pending for adjudication before this Court. I verified the record and find the arguments of learned counsel for respondent tangible and with substance.
10. It is to be seen whether the termination of the applicants are proper and that the applicants are entitled to reinstatement with full back benefits. Admittedly the applicants are Security Guards. The respondents contended that since the nature of duties are not manual hence the provisions of Standing Orders Ordinance, 1968 is not applicable to the respondent-establishment. Whereas the case of the applicants is that they were employed with the respondent establishment as permanent workmen therefore they are workmen and their nature of duties are manual as such their services cannot be terminated in violation of Standing Order 12(3) of the Standing Orders Ordinance, 1968 which places restriction on the employer that the services of any workman cannot be terminated on flimsy ground, and that there should not he mala fide exercise of authority for terminating the employment of any workman. It is requirements of law that there should be order in writing for terminating employment of any workman which contained a valid and cogent reason for termination of the employment. He has further submitted that termination of all the applicants have been made vide termination letter dated 4-6-1987 wherein a common ground has been stated. He has further submitted that the ground assigned by the respondent is proved to be false and baseless as the respondent management has failed to substantiate the above-said reasons for terminating the services of the applicants.
11. As against it, case of the respondent is that the services of the applicants were terminated by written order which contains the reason for termination namely the abolition of Security Department. This step was taken for reasons of economization, reduction in the strength of employees and re-organisation of establishment. They have further submitted that admittedly not a single Security Guard has been appointed in their place nor applicants have been able to name a single individual allegedly appointed after their termination of services and they have further submitted that no allegation of victimisation for trade union activities or malice or any reason is mentioned. There is general plea of mala fide which without substance is always rejected by the superior Courts. It is further contended that the simple matter of cost efficiency reducing pay-roll expenses and number of employees in service. A. substantial saving has accrued to the respondents apart from improving the Security of said establishment in view of the security now operated and maintained at the respondent premises by Phoenix Security Services (Pvt.) Limited an Organisation that specialises in providing security system to Industrial and Commercial Organisation. Phoenix is an independent contractor. The agreement with the contractor has been exhibited alongwith the schedule and operational instructions. They have therefore contended that since their action is bona tide hence the applicants are not entitled to relief sought.
12. I have given careful consideration to the arguments of both the learned counsel for the parties. So far point No, 1 is concerned I find force in the arguments of learned counsel for applicants that they are workmen under the definition of S.O. 12(3) of Standing Orders Ordinance 1968 as the nature of their duty is manual. They do not come in category of Officers or Supervisors. They have also proved their contention by producing strong oral evidence and documentary proof to show that they are Security Guards and they came under the definition of workmen. Therefore, they have very much protection of Standing Orders and I.R.O. This point is answered accordingly in affirmative.
13. So far issue No, 2 is concerned, I am afraid the contention of the learned counsel for the applicant is devoid of having any force, that the services of the applicants were terminated in violation of S.O.
14. 12(3) of Standing Orders Ordinance, 1968. The employer has inherent right to conduct and reorganise his business the way he means do determine strength and number of persons he wants to retain on his pay-roll. Merely because a company disburses bonus for the emoluments does not mean it should or cannot reduce his pay-roll expenses by respondents in accordance with law. The employer has right to retrench so long it is bona fide and principle of last come and first go has been observed. Employer has also right to contract out work or business or obtain certain services under contract with independent agencies as held in 1980 PLC 1224. The employees of an independent contractor are not employees of the main establishment as observed in 1976 PLC
758. The evidence on record shows that admittedly the work of Security Guard was being done on behalf of the company through contractor. As such it is clear that there was security work in the company even after the services of the applicants have been terminated. The question however which has to be considered is whether for this work it was necessary to continue employing Security Guard or whether the work could be done through some other agent. According to the company they considered it appropriate to get the work done through contractor. I think that the right of employer to select the mode in which he would get his work done cannot be brought into question. The employer cannot be prevented by a Labour Court from getting his work done in a particular manner so long as he thereby does not infringe any law. If therefore the company considers that it would be more appropriate to get its security work done through contractors rather than to employ one or more security guards, the decision in this behalf vests entirely on the company, of course, if the termination of employment of a workman is mala fide. The termination orders cannot be declared as invalid by Labour Court, but unless this circumstance is established the mere fact that the employer has adopted another mode for getting his work done, which has rendered the services of one or more workmen redundant would not justify the setting aside of the order of employer terminating the employment of such redundant workman. It is, therefore, to be seen whether in terminating the services of the applicants, the company acted in mala fide manner. The first circumstance which has to be taken into consideration is that according to the applicants he had been in the employment of the company for many years when their services were terminated. This statement has not been controverted. However, merely, because applicants were in the company's department for so many years neither gave them a right to continue in the employment of the company for an indefinite period nor could it act as a bar to the company adopting a different mode for the execution of its work. In the grievance application of the applicants they assailed the termination of their services and characterised them as illegal, arbitrary and mala fide on the grounds firstly the post was permanent and there was no retrenchment or organisation in the company and that termination of their services was an act of victimisation. They have failed to produce single witness to show that termination of their services was an act of victimisation on account of their trade union activities. The mere fact that a post is permanent does not debar the employer from terminating the services of the workmen. So far as the ground of being no retrenchment in the company is concerned, this was sought to be established, the first being that as a matter of fact that there was no reorganisation which would call for retrenchment and all that it was done was that the post held by the applicants was retrenched. It has been admitted by the respondents that no work of security guard is being done in the security department and the work of security has been given to contractor and as such no employment after their retrenchment has been so far affected. He further states that the agreement of security services was executed by the respondents with Phoenix Security Services (Pvt.) Ltd. It is a lumpsum agreement for providing of security services on 24 hours basis. There is no privity of contract or relationship of employer and employee between the employees engaged by Phoenix Security Services (Pvt.) Ltd. and the respondents. The guards engaged by Phoenix Security Services (Pvt.) Limited wear the uniform of that company. Their services are controlled and supervised by Phoenix Security Services (Pvt.) Ltd. and there is regular turn over of guards, and different persons are assigned. The respondents has no concern with those persons nor has any say in their appointment or discharge of assignment. No letter of appointments are issued to them by the respondent nor wages paid to them by the respondents nor the respondent has said in the retrenchment or disciplinary action which is entirely the responsibility of the independent contractor, who has employed these individuals to discharge his contractual obligations. They are placed on duty by the contractor. He further states that Security Department has been abolished and the work contracted out. The services have been terminated on account of abolition of Security Guard system. This was done for reasons mentioned in the letter of retrenchment which reasons are valid, bona fide and legal.
15. As I have pointed out above that it is right of the employer to effect reorganisation and retrench worker surplus to their requirements. In case of Saifee Development Corporation Limited v. Anamur Rehman 1969 PLC 459 at page 463 the Labour Appellate Tribunal West Pakistan after referring to the Supreme Court of Pakistan judgment in the case of Zeal Pakistan Cement Factory was pleased to observe as under:-- "To my mind, the right of the management to retrench and reorganise its Department, cannot be limited by the Industrial Court. Every employer has an absolute right to reorganise its department and to do away with the services of persons, who may become surplus."
16. In the same judgment on the allegation of victimisation Justice Inamullah Khan of the Industrial Appellate Tribunal West Pakistan was pleased to observe as under:-- "A charge of victimisation against the management is a serious one. Such a charge cannot be established on mere surmises or conjectures. There must be something more on the record to establish that action of the management is coloured one. It may be that in some cases there may be no direct evidence to prove that the action of the management is only to victimise a workman.
17. The workman at least must establish cogent and reasonable grounds for such a conclusion."
18. In the case of Muhammad Sirajuddin v. Labour Appellate Tribunal and another 1983 PLC 1286 at page 1289 the Hon'ble High Court of Sindh, Karachi, recognised the right of the employer to re- organise its establishment and to effect the retrenchment, with following observations:-- "On the question of re-organisation undertaken in the institution of the respondent No,'2, the learned Tribunal has rightly relied on the evidence of the respondent and has come to the correct conclusion that since it has not been established that the re-organisation was mala fide or it was carried out as a cloak or device to hit some employee or employees, the respondent No, 2 was free to make the re-organisation as was necessary and in consequence thereof retrench as many members of establishment as were found by them to be redundant subsequent to completion of the process of the re-organisation."
19. Same view has been taken in the case of Ghulam Ahmed v. Island Textile Mills Ltd. Kotri 1975 CLC
275. Mr. All Nawaz Budhani of Sindh High Court was pleased to observe as under:-- "In the instant case, an order in writing is given but the objection is that it has not explicitly stated the reasons for the removal. If we look back in the order of management, the reason is given that his services are no longer required. This is enough reason. It is not necessary to give an elaborate and lengthy reasoning for the removal of the appellant."
20. The case-law quoted above is very much relevant to the present facts and circumstances of this case. Point answered accordingly in affirmative.
21. In view of what has been discussed above I am of the considered view that applicants have failed to establish their case, they are therefore not entitled to relief sought. Point answered accordingly in negative.
22. The applications being without merits are hereby dismissed.
23. However since applicants have been working with the respondent establishment since last so many years hence I would suggest to the respondents that their cases be recommended to the Phoenix Security Services (Pvt.) Ltd. for their fresh appointments.