DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated December 30, 1972,, whereby the learned Labour Court ordered the re-instatement of the respondent with all the back benefits. The facts necessary for the disposal of this appeal briefly put are these.
2, Mr. Sanaul Haq, (hereinafter called the respondent), was appointed by the National Shipping Corporation (hereinafter called the appellant Corporation), until further orders, as Assistant Engineer in the workshop on a temporary basis by letter dated 29th July 1971. He was appointed in the Pay Scale of Rs. 750-40-1150--BB-50-1400, together with Conveyance Allowance of Rs. 100.00.
The respondent accepted the offer on the August 1971. The appellant Corporation in continuation of their letter of .9th July 1971, wrote another letter on 24th April 1972, offering the respondent the post of Assistant Engineer with effect from the April 1972, on a starting salary of Rs. 850.00 per month, together with House Rent Allowance and Conveyance Allowance. He gas to be on probation for three months, which could be extended for a further period of three months. His probation was extended for a further period of one month only, i.e. Up to 31st July 1972. It is the case of the appellant, Corporation that the respondent accepted the offer dated 24th April 1972. The appellant wrote a letter dated 31st July 1972, terminating the services of the respondent from the afternoon of 31st July 1972.
3. It would be useful, for the consideration of the, question as to whether the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) were applicable fn the circumstances alleged by the respondent, to reproduce the application of the, respondent which runs in 4 paras as under: "(1) That on 11-8-1971 applicant joined the respondent as Assistant Engineer at a monthly salary of Rs. 850.00 and was a permanent worker.
(2) That on 31-7-1972 applicant lost his services as a consequence to ouster from service without show-cause, notice, charge-sheet, Domestic Enquiry etc. And, payment of all legal dues, which has no recognition in law.
(3) That on 3.8-1972 and 19-8-1972 applicant orally as well as In writing approached the respondent for re-instatement and restoration of service but without any result.
(4) That the applicant certifies whatever stated hereinabove are true to the best of his knowledge sad belief."
4. The appellant contended that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter called the Standing Orders Ordinance), did not apply to the appellant Corporation, as the game was run under the authority of the Central Government and which has its own Statutory Rules of Service applicable to the employees of the appellant Corporation. In the neat place It was contended that there has been no breach of any right guaranteed or secured to the respondent under any provision of law. It was further submitted, relying on Regulation 59 of the National Shipping Corporation (Service)
Regulations, 1965, that discharge did not amount to dismissal within the meaning of the Regulation and, therefore, no cause of action has arisen to the respondent. Lastly, it was, urged that the respondent was not a workman.
5. On behalf of the appellant Corporation no evidence was produced. The respondent filed big own affidavit and he was also cross-examined.
6. The learned Labour Court came to the conclusion that the respondent was a workman and that having served for 9 months he had become a permanent employee. His services therefore could not be terminated without any cause on the mere whim of the mater.
7. The learned Labour Court has not given any finding as to whether the Standing Orders Ordinance was applicable in the case of the appellant Corporation or not. I have already given my reasons in Appeal No. KAR-1 of 1973, decided on 2nd May 1973, that the provisions of the Standing Orders Ordinance are not applicable to the appellant Corporation.
8. It is always a question of fact to be determined on the evidence led by the parties as to whether a person is a workman or not. I n the present case, there is only the evidence of the respondent. It is in the form of an affidavit. It runs as under: "(1) That I am the applicant in this case and fully conversant with the facts of the case in application No. 87 of 1972.
(2) That I joined the respondent on 11-8-1972 and was a permanent worker (copy enclosed).
(3) That on 31.7-1972 my services were terminated (copy enclosed).
(4) That whatever is stated herein above from para. 1 to 4 are true and correct to the beat of my knowledge and belief."
9. It is important to note that the respondent does not disclose anything In big affidavit that he is a workman, I am of the view that the respondent was not bound to depose the facts which would lead the Court to conclude that he was a workman. The appellant raised this objection only in the Written Arguments that the respondent was not a workman. The respondent, therefore, was not bound to disclose the facts, which will bring his case within the definition of "workman" under the Ordinance. I would hold for the purposes of this case that the respondent is a workman.
10. The question now is as to whether the respondent is entitled to any relief under section 25-A of the Ordinance. In order to be entitled to any relief under section 25-A of the Ordinance, a worker has to establish that be has any right guaranteed by secured to him by or under any la or any award or settlement for the time being In force. The admitted position is that the respondent does not claim any right under any award) or settlement. He has, therefore, to establish the right guaranteed or secured to him under any law In respect of which he has a grievance. If the services of the respondent bad been terminated under the terms of his contract of service, it cannot be said that there was any violation of any' right guaranteed to the respondent under any law. All that the respondent has said about the letter dated 24th April 1972, whereby he was offered the post of Assistant Engineer on probation for three months, Is that it was a fictitious one. It is noteworthy that the existence of the letter dated 24th April 1972, has not been denied. All that is said in Paragraph 12 of the Written Arguments of the respondent is as under: "On 24th April 1972 another letter was issued to the applicant bearing No. E/WS-1, dated 24th April 1972.
This letter is fictitious because - (a)---------------------------------------------------------------..
(b)---------------------------------------------------------------..
(c)---------------------------------------------------------------..
(d)---------------------------------------------------------------..
(e)---------------------------------------------------------------..
11. It is not necessary to give the reasons given in. Paragraph 12. I will only reproduce the conclusion, which follows the reasons In Para. w graph 12. It runs as under-- "In fact the confirmation letter was to be issued, but Instead, the above--mentioned letter No. E/WS-1 dated 24th April 1972, was issued to make the ground for terminating his services."
12. As there Is no evidence as to whether the letter dated 24th April 1972, was fictitious or otherwise, f have to depend on the allegations made by the parties In their application and written Statement.
As toe existence of the letter dated 24th April 1972, is not denied. I am inclined to hold that the respondent had accepted the terms of the letter dated 24th April 1972. It is an afterthought on the part of the respondent as his services had been terminated during the period of probation, to contend that the said letter is a fictitious ore or as the learned Labour Court has observed a mischievous one. It appears to me that the first Letter of Appointment dated 29th July 1971, was in respect of a purely temporary post, while the second letter was to respect of a permanent job. The respondent was to become permanent, if he successfully completed his probationary period. The impression of the respondent that the letter dated 24th 'April' 1972, was issued only to prepare a ground for terminating his services is not justified. If the appellant Corporation wished to terminate the services of the respondent, they could have done so even under the first letter of appoint-- ment dated 29th July 1972, the post being purely a temporary one. There is nothing on the record to suggest mala fide on the part of the appellant Corporation interminating the services of the respondent. I would hold that the services of the respondent were terminated under the terms of his Appointment Letter. There is no breach of any right guaranteed or secured to the respondent in law.' The appeal is allowed. The award of the learned Labour Court dated 30th December 1972, is set aside.