DECISION ' This is an appeal against the order, dated 12-8-1986, passed by the learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, whereby grievance petition of the respondent was allowed and he was ordered to be reinstated with full back benefits.
2. I have heard Mr. Abdul Ghani Khan, learned Advocate for the appellants and Mr. Ahsanul Haq, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The respondent was admittedly employed by the appellants who declared 'lay-off on 10-12-1984.
The respondent submitted application to the Additional Director Labour, Hyderabad for the payment of lay-off' period but in a meeting convened by Additional Director Labour on 19-1-1985, appellants disclosed that the services of the respondent had been terminated and consequently, after service of grievance notice, respondent filed the grievance petition which was allowed by the learned Labour Court vide order, dated 12-8-1986. However Appeal No, HYD-260 of 1986, against the said order filed by the appellants was allowed by this Tribunal vide order, dated 3-11-1987 whereby the impugned order of learned Labour Court was set aside and the grievance petition filed by the respondent was dismissed. The respondent filed Constitutional Petition No, D-16 of 1988 in the High Court of Sindh Circuit Court, Hyderabad, which was decided by the learned Division Bench of Sindh High Court, Hyderabad on 7-2-1990, whereby aforesaid order of this Tribunal was set aside and the appeal was remanded back to this Tribunal.
4. Admittedly no 'appointment letter' was issued by the appellants at the time of appointment of the respondent by the appellants. However, in the course of cross-examination of respondent it is suggested that he was appointed temporarily on automatic balloon on 9-10-1984, which was denied by the respondent, who alleged in the cross-examination that he was appointed on 1-3- 1984 on machines. Under Standing Order 1.2(3) it is mandatory for the employer to provide the workman an order in writing at the time of appointment showing terms and conditions of his service. Non-compliance of this provision would raise presumption against the appellants. Mr. Ahsanul Haq, learned counsel for the respondent, has relied upon the decision of this Tribunal in the case of Zaheer Ahmad v. Manager Administration, Wazir Ali Industries Ltd., Hyderabad 1989 PLC 850, wherein this Tribunal had held 'the workman who had remained in the service of the employer for more than three months, but neither any written orders of appointment was provided to him by the employer nor he was given any order in writing showing explicit reason for termination of his service and where no evidence existed showing that workman was appointed against work which was temporary in nature likely to be finished within nine months, the workman had acquired status of permanent workman'. In the instant case there is word of the respondent that he was appointed on 1-3-1984 against the word of appellants' witness Abdul Ghani that he was appointed on 9-10- 1984 without any authenticated documentary evidence to show the exact date of appointment of the respondent.
5. The appellants alleged that the services of the respondent were terminated by written order, dated 7-11-1984 vide Exh. R/3, which was offered to the respondent in presence of Saeed and Mazhar but he refused to take. It is also admitted that the same was not sent to the respondent in any other manner, nor it was served upon the respondent even before the Additional Director Labour in the meeting. The respondent does not admit the offer of this letter, nor have the witnesses in whose presence the letter was alleged to have been offered to the respondent been examined. Standing Order 12(3) requires that service of no workman should be terminated without an order in writing showing explicit reason. Mere order in writing is not sufficient but it has to be communicated to the workman otherwise he cannot have recourse under Standing Orders Ordinance to seek relief which is provided under clause (3) of Standing Order 12.
6. In the case of Allah Ditta v. Punjab Labour Appellate Tribunal PLD 1985 Lahore 407 a learned Division Bench of Lahore High Court held that order of termination without communication by the employer was ineffective in terminating the services of employee. In the case of Dawood Hosiery Mills, Karachi v. Hazrat Muhammad Yousuf and others 1975 PLC 48 learned Single Judge of Sindh High Court at Karachi held:- "It would appear that the termination order has to be in writing and that it must disclose the cause of termination. Although. The provision does not explicitly state that the order of termination has to be communicated to the workman, such provision has as of necessity to be read as a requirement; for, in the alternative the order of termination would not be effective.
7. This order of termination appears to have been produced by the appellant in the Labour Court on 4-5-1985 alongwith written statement. Therefore at the most letter would be deemed to have been served upon the respondent after it was supplied to him alongwith the copy of Reply Statement but before that the services of the respondent could not be deemed to have been terminated under an ineffective order of termination, dated 7-11-1986.
8. Even in this letter of termination the only reason shown is that his services were not more required as he was employed on temporary work. It does not show whether the work for which he was employed had been completed and therefore his services were not required.
9. In the recent decision of learned Division Bench of Sindh High Court in the case of Ghulam Ahmad v. Sindh Labour Appellate Tribunal and others 1990 PLC (C.S.) 385 it was held:- "Statement in termination order that service of workman was no longer required could not be a reason for terminating service because such statement calls for further inquiry and in itself was not ground or reason for termination. Such statement was merely the outcome of undisclosed reasons which were sought to be disclosed in evidence. The reasons for termination should be clear, unambiguous and understandable. Mere statement that service was no longer required was an expression of desire, whim and caprice which was absolutely without any reason or ground. The law provides and imposes restrictions on such unfettered power of the employer, and thus the statement "service is no longer required", would not be in accordance with law."
10. In the case of Manager, Hameed Masood (Private) Ltd. v. Punjab Labour Appellate Tribunal, Lahore 1990 PLC 559 it was held that clause (3) of , Standing Order 12 which is mandatory provision applies to all classes of workmen irrespective of the fact whether they are permanent or temporary, badlies or probationers.
11. Mr. Abdul Ghani Khan has relied upon the case of Anwar Ali Shah v. Punjab Labour Appellate Tribunal and another 1983 PLC 812, wherein learned Single Judge of Lahore High Court held that where services of probationer/apprentice who was employed on 21-6-1977 were terminated on 13th September as he had miserably failed in his assignment he cannot be said to have successfully completed probationary period so as to claim protection under Standing Order 12(3) or Standing Order 15. The facts of the case are obviously distinguishable. The services of the employee were terminated during the period of probation apparently by order in writing showing that he had miserably failed in his assignment. Furthermore his Lordship has not discussed in detail as to why clause (3) of Standing Order 12 was not applicable. In clause (3) word 'workman' is used.
This word 'workman' is defined and classified under Standing Order No,1, which classifies five categories of workmen including permanent, probationers, badlies, temporary and apprentices.
This point has been discussed in the aforesaid case of Manager, Hameed Masood (Pvt.) Ltd. I am inclined to agree with the view taken by learned Single Judge in that case and would hold that provisions of Standing Order 12(3) are applicable to the workman even as badli or probationer.
12. In the case of Abdul Majeed v. Shahbaz Silk Factory 1980 PLC 349 this Tribunal held that where date of appointment as contended by workman was disputed by employer and there was no tangible evidence to rebut contention of workman, in absence of written order the contention of workman was to be upheld.
13. In view of the above discussion of facts and law it will be seen that the contention of the respondent that he was employed on 1-3-1984 is not rebutted by any tangible evidence by way of appointment order as such it has to be accepted. The order of termination of service, if any, was not communicated to the respondent except when it was delivered to him alongwith the copy of reply statement after 4-5-1985. This order cannot be considered as effective uptil that date. Thus respondent would be deemed to have continued to be in service from 1-3-1984 to 4-5-1985 viz. For more than twelve months. The respondent, in his grievance notice, contended that he was permanent employee. There is no evidence that the appellants replied to this grievance notice disclaiming his contention that he was permanent employee. The fact that he was allowed to continue from 1-3-1984 to 7-11-1984 in the service of the appellants would raise presumption that he had completed the period of probation, if any, satisfactorily. As already pointed out that there is no evidence, that the work on which he was employed was of temporary nature and that it had been discontinued after termination of the service of the respondent. Under the circumstances the respondent would be deemed to have acquired status of permanent workman. The termination order is violative of Standing Order 12(3). As such the appeal of the appellants is dismissed and the( order of the learned Labour Court is maintained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.