DECISION ' These 2 appeals are filed against a single order, dated 22-3-1987, passed by the learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, whereby grievance petitions filed by the 2 appellants were dismissed. I also propose to dispose of both the appeals by this single decision as the points of law and fact involved in both the appeals are same and so is the respondent.
2. I have heard appellants in person and Mr. Abdul Ghani Khan, learned Advocate for the respondents and have also gone through the record and proceedings of the cases.
3. Admittedly both the appellants were employees of the respondents. They claim that their services were orally terminated with effect from 1-6-1986 for which they gave grievance notices, dated 14-6-1986; whereafter they received fresh termination orders., in writing, on 21-6-1986. The appellants then gave fresh grievance notices, dated 17-7-1986 and failing to receive the reply, they filed the grievance petitions before the learned Labour Court which were resisted by the respondents on the ground that they had terminated the services of the appellants by way of retrenchment as they had suffered losses and, therefore, they had stopped the production in January 1986.
4. The first objection of the appellants that their services were terminated orally seems to have been set at rest by the respondents by subsequently passing orders in writing showing explicit reasons for the termination of services of the appellants. These orders would be effective from the date they received the orders, viz. 21-6-1986 and the appellants would be entitled to receive their dues for the period from 1-6-1986 to the said date, if they have not already received the same.
5. The only ground that requires consideration is as to whether this termination order was bona fide because of retrenchment due to alleged stoppage of work or it was colourful exercise to victimise the appellants for their alleged trade union activities. Admittedly, the appellants were President and the General Secretary of the CBA Union.
6. Appellant, Saghir Ahmad had admitted in his cross-examination that the factory was closed once and that it was started after 3 months in 1984. He has denied the suggestion that it was again closed from 20-10-1984 to 24-2-1985. He, however, has admitted that the production was closed from 29-6-1985 to 6-11-1985 and also from 15-1-1986 till date viz., 7-2-1987, when he was cross- examined. He has, also denied that the termination of his services was due to financial position of the respondents. Appellant, Khalid Hanif had admitted that the production of the factory was stopped for a number of times from 1983 onwards, but, had denied that it was on account of accumulation of stocks, adverse market condition and financial difficulties. He also admitted that the production is closed from 15-1-1986 upto date. Both the appellants, however, denied that the respondents were in any financial difficulty.
7. The respondents have examined one Mian Mairaj Din, Manager Administration. He has stated that their factory produces Calcium Carbide which is also imported from abroad in the country and that the imported Carbide proves cheaper, therefore, it adversely affected sale of their products. He had further stated that due to these adverse conditions, production had to be stopped from time to time viz., from 11-1-1984 to 21-4-1984; 20-10-1984 to 24-2-1985; 29-6-1985 to 6-11-1985; and from 15-1-1986 upto date. He also produced the Annual Report for the year 1986 to show that they had suffered losses. The fact remains admitted that the factory was closed from 14- 1-1986 and was not re-opened at least uptil the date, the appellants were cross-examined viz., 7-2- 1987. No employer or businessm an would close his factory, if he was earning profit, for such long period only to victimise 2 or more workmen. Admittedly, even prior to closure on 15-1-1986, the factory of the respondents had remained closed for a number of times. The reason as to why the respondents were running in loss has also been explained by Mr. Mairaj Din; which explanation has remained unrebutted.
8. Admittedly the workers had formed a union in December, 1985 and the appellants were the office-bearers of the union and the services of the bulk of workers were terminated in January, 1986. These dates no doubt appear to give rise to suspicion that there might be victimization, but it is a settled law that allegation of mala fides has to be strictly proved. The present appellants were retrenched in June, 1986 viz., after about 5 months of the stoppage of production. There is nothing on record to show that there was any industrial dispute raised by the appellants or the union due to which they were victimized. Such a victimization cannot be assumed on the basis of conjencture or mere coincidence. There is nothing on record to suggest that the respondents had re-started their factory in another name or in another premises. Therefore, this retrenchment of the appellants by the respondents cannot be considered to be an act of victimization or colourful exercise of the discretion of the employer to reorganize its establishment by way of retrenchment.
9. The appellants claim that the respondents had removed more than 50% of the workers. There is no specific evidence to show as to how many workers were employed by the respondents and how many were removed for one time. It appears that 70 workers were removed by notice, dated 15-1- 1986 vide Exh. R-17 and 30 workers were removed by notice, dated 5-2-1986 vide Exh.R-18.
Respondents claim the first 70 workers were probationers and their services were terminated during the probation time. Appellant, Saghir Ahmad has denied that they were probationer workers, but appellant Khalid Hanif had admitted that out of the 70 persons, 31 were permanent and the rest had less than 3 months service. Khalid Hanif had further admitted that at the time of termination of their services viz. In June, 1986 there were 36 workers in service and only 8 were removed out of whom the appellants had filed the grievance applications. None of other workers had either raised industrial dispute through the union or had filed their grievance petitions.
Admittedly at the time of termination of services of appellants out of 36 workers, the services of only 8 workers were terminated. I have already held that their services were deemed to have been terminated on 21-6-1986, when the written orders were admittedly served upon them. In view of the admission of the appellant, Khalid Hanif, the termination orders cannot be considered illegal on the ground that the services of more than 50% workers were terminated.
10. In view of the above discussion, I do not find any merit in these appeals which are accordingly dismissed.