DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No,V at Karachi, dated 15-5-1990, whereby the grievance application of the respondent was allowed, and he was directed to be reinstated in service with full back benefits.
2. I have, heard Mr. Nacem Bukhari, learned Advocate for the appellants and Mr. Gohar Iqbal, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the respondent was admittedly appointed as a workman, viz., a domestic watchman, vide order, dated 16-10-1986, which has been produced as Exh. R-1. His services were terminated, vide orders, dated 18-11-1987, on the ground that the post, had been abolished and he had been rendered surplus to the requirements of, the appellants. Aggrieved by this order, he served grievance notice upon the appellants and then filed his grievance petition in the Labour Court.
4. It is contended by the respondent that order of termination has not been issued by a competent authority, viz, the Chief Executive. The order of the, termination was admittedly passed by Mr. Agha Jawad Ahmed, Manager, I.R. & P.A. Mr. Naeem Bukhari, learned Advocate for the appellants has contended that the respondent has admitted in his cross-examination that the order of termination was issued under orders of, the Chief Executive. He, has also produced the Office Memo, Annexure R.W.1/2 under which a Note was put up before the Chief Executive intimating him that the Bungalow was not being used as Guest House and the post of domestic watchman had become redundant. In the margin there is a Note of the. Chief Executive to issue the letter of termination of the services of the respondent. In view of, the above evidence this objection of the respondent does not have much force.
5. It is not disputed that the Guest House was closed, therefore, the contention of the appellants that the post of the respondent as. a 'watchman' of the Guest House had become surplus, does not appear to be baseless. However, the respondent claims that he had been posted in the factory as a watchman and at the time when he was issued termination order, he was not working as a watchman of the Guest House but was working as a watchman of the factory and, therefore, the reasons shown in the termination order were not correct and explicit and were not strictly in accordance with the provisions of Standing Order 12(3) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, which reads as under:- "S.O. 12(3)-- The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing with 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."
6. In support, the respondent had produced an order, dated 10-11-1987, Annexure A/1 to the affidavit-in-evidence of the respondent under which he had been posted in the factory with effect from 10-11-1987 on the instructions of the Chief Executive. This letter was signed by Mr. Mahmood Hussain Malik, Senior Assistant Manager (P&A). Mr. Mahmood Hussain had filed his affidavit-in- evidence in which he had produced another letter also signed by him and also bearing the same date as Exh.R.W.2/2, wherein it was ordered that "subject to the suitability and availability of post, Mr. Muhammad Anwar, Domestic Watchman of Sea View Guest House may be posted to factory with effect from 10-11-1987 on the instructions of Chief Executive." However, Mr. Mahmood Hussain was not tendered for cross-examination and instead Agha Jawad Ahmed has filed an affidavit-in- evidence on behalf of the appellants and was tendered for cross-examination. Mr. Jawad Ahmed had alleged that the Annexure A/1 was neither issued nor it was received by him and that it was forged by the respondent. However, in his cross-examination, he had admitted that Annexure A/1 bears the signatures of Mahmood Hussain Malik and that it was correct that the respondent was directed to report himself at factory premises at Hub for his posting on the instructions of the Chief Executive and he had so reported for his duty. If the document admittedly bears the signatures of Mahmood Hussain, it is not understood how it can be said to be a forged document. Apart from the oral word of the witness, Agha Jawad Ahmed, there is no evidence to show or prove the forgery. It is a settled law that the burden to prove the charge of forgery is upon the party who alleges forgery. It is further argued by Mr. Naeem Bukhari, the learned Advocate for the appellants that this Annexure A/1 produced by the respondent was an Internal Memo and how could the respondent obtain the copy of the same? I find that in cross-examination, the respondent had stated that it was given to him by Mr. Mahmood Husain Malik. This statement becomes believable and natural in view, of the admission of the witness of the appellants that the respondent was directed to report in the factory and that he so reported, The directions could not be oral but must be in writing. It is submitted by the appellants that second Internal Memo which was produced by Mahmood Hussain alongwith his affidavit, Exh.. R.W.1/1 was manipulated by the appellants. The writer of both the documents has not been examined, therefore the contentions of the respondent that the Annexure A/1 was issued by Mahmood Hussain and delivered and thereafter he had reported for duty at the factory appear to be more plausible.
7. The position that emerges is that after the post of Watchman at the Guest House had become surplus, the respondent was appointed as Chowkidar at the factory under the orders of the Chief Executive. It is not the case of the appellants that they had abolished any post in the factory and that the respondent was junior most and, therefore, he was retrcnched. In the affidavit-in-evidence of Jawad Ahmed, he has stated that he found the respondent not suitable for strenuous duty of Watchman in the factory which envolved movement, alertness and ability to cope with difficult situations, and that he remained absent from duty from 12-11-1987 to 17-11-1987. He had relied upon the Office Memo which is produced as R.W. 2/2 which has been referred to above wherein Mahmood Hussain had reported that the Guest House had been locked and the post of Chowkidar had become redundant on which the Chief Executive had passed orders directing the termination of the services of the respondent. However, before the issue of this Memorandum on 17-11-1987, another order, Annexure A/1 was issued on 10-11-1987, and as the consequence of this order, the respondent admittedly had reported for the duty at the factory. The real reason, if any, for the termination of services of the respondent could he that he was not suitable for the service of a Watchman at the factory and that he remained absent from duty. The Manager could have come to this conclusion of respondent's unsuitability only after appellants had put the respondent on duty as a watchman at the factory. His allegation of unsuitability therefore, amounts to the allegation of inefficiency against the respondent which is a misconduct and so also allegation of absence. For these misconducts, the services of respondent could not be terminated under Standing Order 12(3). As pointed above, in the termination order, the only ground for termination was shown that the post of watchman at the Guest House was abolished and, therefore, his services had become surplus. Whereas the reason on 17-11-1987 was that he was not found suitable for service as a watchman at the factory and had remained absent. The ground of termination of services shown in the termination order is thus belied by the appellants own witness. The Standing Order 12(3) which has been reproduced above requires the employer to state in the order of termination the reason of termination explicitly so as to enable the workman, if aggrieved, to seek remedy under section 25-A of Industrial Relations Ordinance, 1969. The word 'explicit' has been defined in Black's Law Dictionary, Fifth Edition, as under:- "Explicit---Not obscure or ambiguous, having no disguised meaning, or reservation. Clear in understanding."
' If the ground of the termination shown in the termination order is not real ground for termination of services, it cannot be considered 'explicit' and it cannot be said that a fair opportunity had been given to the workman to present his case effectively before the Labour Court. The order, therefore, was violative of Standing Order 12(3) Lad was not sustainable.
8. However, there arc certain other objections raised by the appellants which require consideration.
It is submitted by Mr. Naeem Bukhari, the learned Advocate for the appellants that in the reply statement, the appellants have denied the service of grievance notice, therefore, the burden shifted upon the respondent to prove the service of his grievance notice. The respondent alongwith his grievance application had produced the copy of the grievance notice as Annexure 'C'; Registration Receipt Annexure 'D' and `A/D' receipt as Annexure `E'. It is not disputed that the address shown in the A/D receipt is the correct address of the appellants. However, Mr. Naeem Bukhari, the learned Advocate for the appellants has contended that the respondent in his affidavit-in-evidence has not referred to the above documents or asserted the service of the grievance notice nor had he stated that the contents of his application under section 25-A, I.R.O., 1969, he. Treated as part of the affidavit-in-evidence. The appellants had also denined the receipt of the grievance notice in the reply statement but witness Mr. Agha Jawad Ahmed examined by the appellants had not asserted in the affidavit-in-evidence that the grievance notice was not received by the appellants nor had he stated that the contents of the reply statement be treated as part of his affidavit-in-evidence. Therefore, both the parties sail in the same boat. This Tribunal relying upon the decision of the Supreme Court in the case, reported in PLD 1972 SC 25, has been holding that the written statement which is not verified on oath and the signatory of which had not been examined in the Court, cannot he considered as evidence. Mr. Nacem Bukhari, the learned Advocate for the appellants had contended that on similar analogy, the grievance petition cannot be treated as evidence. It may be pointed that above decision of Hon'ble Supreme Court related to a civil suit. The provisions of Civil Procedure Code are not strictly applicable to the proceedings before the Labour Court hut, the principles generally are applicable, if they are not repugnant to the provision of Labour Laws or to the spirit of Labour laws as and the principles of natural justice. In the proceedings the signatory of grievance application had been examined on oath and it has not been suggested to him in his cross-examination, that he had not sent the grievance notice. The signatory of the reply statement has also been examined, but, as pointed above, he had not asserted on oath that the grievance notice was not ,received by them. Under the circumstances, as the grievance notice, A/D receipt, registration receipt of notice have been produced by the respondent alongwith the grievance application, the presumption would he that the same had been received by the appellants, unless rebutted. Under the circumstances, the appellants have not rebutted the above presumption of law by denying the receipt of the same on oath.
9. Mr. Naeem Bukhari, learned Advocate for the appellants has raised the objection that the respondent was not entitled to the full hack benefits which have been awarded to him by learned Labour Court. He has relied upon the decision of the learned Division Bench of Lahore High Court in the case of Din Muhammad Jaffary v. Managing Director reported in 1986 PLC 1166, wherein it was held that the employee whose termination was adjudged to be wrongful would be entitled to the back benefits for the period of his termination but if during that period if he has been engaged in any other gainful employment or some profitable business, any amount earned by him from employment or business would have to be set off against his claim for arrears of salary. Similar view was taken by the learned Punjab Labour Appellate Tribunal in the case reported in 1986 PLC
453. The learned Punjab Labour Appellate Tribunal in the case of Agricultural Engineer, Talagang v.
Gulzar Hussain, reported in 1986 PLC 280; has held that where workman did not assert that after dismissal he remained jobless, he was not entitled to back benefits. In 1988 PLC 604, the learned Punjab Labour Appellant Tribunal has held whether employee got employment elsewhere has to be proved by the employer, but, the employee should first assert that he had remained jobless. In the case of Qadir Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another, reported in PLD 1990 Supreme Court 787; it has been held that Labour Court has got powers to pass orders with regard to back benefits as may be just and proper in the circumstances of the case. Their Lordships had further discussed as to when the functionary/workman is entitled or not entitled to back benefits in the following terms:- "As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set aside unconditionally found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It'has to be paid under the authority of the Tribunal or persons setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter. Where full relief is not granted, the proper course in the absence of express order to that effect is to seek appropriate redress either under the Industrial Relations Ordinance or under the Civil Servants Act, as the case may be. Where however, the order of reinstatement is conditional, as was in the case of the appellant, that an enquiry could still be made into his conduct and his conduct was considered such as to call for a departmental enquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal, irrespective of whether it is set aside conditionally or unconditionally would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the enquiry on the same charge would also disentitle him, till the conclusion of the enquiry and the determination of the responsibility, to back benefits."
10. In the instant case, the order of dismissal has been set aside unconditionally as the order of dismissal was held to be illegal being violative of Standing Order 12(3). As such, the respondent was entitled to full back benefits as awarded to him by the learned Labour Court. The respondent, in his application in the prayer clause has claimed full back benefits as he was kept unemployed by the appellant illegally. In the reply statement, it is not asserted that the respondent was employed anywhere else. In the cross-examination of the respondent no question has been suggested to him that he was employed anywhere else nor does the witness of the appellants has asserted that the respondent was gainfully employed anywhere else after termination his services.
11. For the aforesaid reasons, I see no merit in this appeal which is accordingly dismissed.