DECISION ' This is an appeal against the order, dated 5-5-1988, passed by the learned Presiding Offficer, Sindh Labour Court No,II, Karachi.
2. I have heard Mr. Sharif Malik, learned Advocate for the appellant and Mr.Mehmood Abdul Ghani, learned Representative for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant was appointed as Kiln-Mason in Kiln Department by the respondent on 8-10-1983. He was transferred on 11-8-1985 to the Fritt Department from where his services were terminated on 23-8-1986 by way of retrenchment on the ground of reorganization. Aggrieved by this order, after service of the grievance notice upon the respondent, the appellant filed grievance petition before the learned Labour Court which was resisted by the respondent on the ground that retrenchment was legal and bona fide.
4. The facts of the case are not disputed. The main question that requires consideration is whether the retrenchment of the appellant was bona fide or it was made by way of colourful exercise to victimise him. It may be pointed that no specific plea of mala fide has been raised by the appellant either in his grievance petition or grievance notice. His main objection is that be should not have been transferred to Fritt Department. Mr. Mehmood Abdul Ghani has referred to clause (4) of the letter of appointment which is Annexure 'A' to his grievance petition. According to clause (4) the respondent was also to perform any other allied work which may be assigned to him from time to time.
5. The appellant claims that he has been removed from service whereas persons junior to him have been retained. He has not named any such person in his grievance petition or affidavit-in- evidence. He has admitted in the cross-examination that he and Bakhat Haroon were kiln-masons in the entire factory. He, however, admitted that Bakhat Haroon was appointed on 19-4-1982 while appellant was appointed on 8-10-1983. He also admitted that the respondent had not appointed any Kiln-mason after termination of his service but got the work done by Contractor of which he was not able to give the name. Thus from the evidence on record it would be seen that while retrenching the workman the respondents have acted on the principle of 'last come, first go'. The main objection of Mr. Sharif Malik was that the person who signed the written statement has not been examined and therefore, the case of appellant stood unrebutted. He has relied upon the case of Muhammad Ishaq v. Messrs Shezan International Ltd. And others 1990 PLC 63 wherein this Tribunal held that in such case reply statement could not be considered as evidence and would have to be kept out of consideration. However this does not preclude the respondent from leading other evidence to rebut claim of the appellant or from relying upon the admissions of the appellant whereby his case could be rebutted. In that case this Tribunal also held that word 'explicit' used in Standing Order 12(3) means not obscure or ambiguous, having no disguised meaning or reservation, but clear in understanding. The termination order in that case, which did not mention the reason for abolition of post, was held not to be clear in understanding as to why post was suddenly abolished and therefore, termination order was set aside. However in the instant case in the termination order the appellant had been informed that his post has become surplus and reason for that was shown as reorganization and he was also given one month's pay in lieu of notice. As such this case is distinguishable and the termination order cannot be considered as violative of Standing Order 12(3).
6. Mr.Mehmood Abdul Ghani has relied upon the case of Muhammad Serajuddin v. Labour Appellate Tribunal and another 1983 PLC 1286 wherein a learned Division Bench of Sindh High Court at Karachi had held that `retrenchment due to re-organization was right of employer and where petitioner had failed to prove that termination of his services was in any manner mala fide the petition was dismissed.
7. Reliance is also placed on the case of Zeal Pak Cement Factory, Hyderabad v. Chairman West Pakistan Industrial Court, Lahore and others 1965 PLC 216 where their Lordships of Supreme Court have held that 'Discharge of redundant workers after notice as a measure of reorganization carried out for bona fide purpose of industry' without any taint of victimization does not attract control of Industrial Court under section 30 of the Industrial Disputes Ordinance, 1959.
8. In the case of Ibrahim and another v. Messrs Marble Industries (Pvt.) Ltd. 1989 PLC 924 this Tribunal had held that the order terminating services of Crane Operators indicating reasons with one month's wages in lieu of notice was not exceptionable as specific malice was neither alleged nor proved and no one else was employed in the place of the retrenched Crane Operators.
9. In the case of Messrs Saifee Development Corporation Ltd. v. Inamur Rehman 1969 PLC 459 Industrial Appellate Tribunal West Pakistan held that the retrenchment simpliciter did not amount to violation of section 30 of I.R.O., 1959, even in case of office-bearers of the union where victimization alleged were neither specific nor proved. In the instant case as pointed above the services of the appellant have been terminated by order in writing showing the reason for the termination of service and he has also been given one month's pay in lieu of notice. Admittedly no person is employed in the place of the appellant after his termination of service. It is termination simpliciter. There is no allegation of mala fide nor there is any such proof. Therefore the order of termination is unexceptionable.
10. Mr. Sharif Malik has further submitted that the order has not been issued by the competent authority. A workman can be dismissed by an 'employer' as defined under section 2(c)(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968:-- "2(c)(i) "employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes --
(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory".
' The termination order was issued by Mr. S. Shahid A. Jafri on 23-8-1986, the Personnel Manager. It may be pointed that the 'Appointment Order' of the appellant was also issued by the 'Personnel Manager' who, at the relevant time, was Mr. Syed A.K. Gilani. The respondent has produced a letter, Ex.R/2, dated 10-2-1986. This is a letter addressed to the Joint Director Labour by the Director of the respondent alongwith which Form 'A' duly filled in notifying Mr. Syed Shahid Abrar Jafri as 'Manager' under Factories Act, 1934. Ex.R/3 is letter of the Assistant Director Labour to the respondent, dated 21-3-1987, in reply to the letter, dated 10-2-1986 whereby they were informed that the change of Manager intimated vide their above letter had been accepted and recorded in the Office of the Labour Directorate for the purpose of Factories Act, 1934. Under section 9(1)(e) the occupier of the factory shall send to the Inspector a written notice containing the name of the person who shall be the manager of the Factory for the purposes of Factories Act, 1934. It would be seen that the written notice was sent by the occupier of the factory to the inspector of factories on 10-2-1986 vide Ex.R/2 viz. Before the issuance of the order of termination of the services of the appellant. This letter has been referred to in Ex.R/3 which of course, is after the letter of termination of the appellant but it merely informs the respondents that the change has been effected. From the definition of 'employer' contained in Standing Order 2(c)(i) of the Standing Order Ordinance read with section 9(i)(e) of Factories Act it will be clear that the person named by the occupier in his Written Notice as Factory Manager would be the 'employer'. As such order of the termination of services of the appellant was issued by the proper authority and cannot be set aside on that ground.
11. For the aforesaid reasons I see no merits in this appeal which is, accordingly, dismissed.