DECISION ' These two appeals are directed against two separate identical orders, both dated 13-11-1990, passed by learned Presiding Officer, Sindh Labour Court No,I at Karachi, whereby grievance petitions filed by the two respondents were allowed. I intend to dispose of both the appeals by this single decision as the appellants in both appeals are same and points of law and facts are also same.
2. I have heard Mr. Mahmood Abdul Ghani, learned representative for the appellants and Mr. Ibne- Ayoob, learned representative for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case appear to be that the respondents claim to be workmen working in appellants establishment when their services were terminated without any order in writing on 31- 10-1988. They served grievance notices upon the appellants and thereafter filed grievances petitions before the learned Labour Court which were resisted by the appellants on the ground that the respondents were not workers but were supervisors and that Doubling Section of the mill, in which they were working, had been given on contract from 1-11-1988 and therefore the services of the persons working in that section were terminated as they were no longer required.
4. Mr. Mahmood Abdul Ghani, learned representative for the appellants has mainly relied upon the admission of both the respondents in the cross-examination wherein they have admitted that they were working as Supervisors in Doubling Section and that about thirty to forty workers were working in the Department and they were supervising their work. Mr. Mahmood Abdul Ghani contend that even on their own admission the respondents were supervisors and as such they were not workmen as defined under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') but were employers. A "workman" has been defined under section 2(i) of the Ordinance to mean:- "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
"Employer" has been defined under section 2(c) of the Ordinance. Under clause (iii) of section 2(c) the word "employer" includes any person responsible to the owner for the supervision and control of such establishment."
5. The "worker" as defined in section 2(xxiii) of I.R.O., 1969, excludes 'a person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem'.
6. Mr. Ibne-Ayoob, on the other hand, relied upon assertions of the respondents in Para I of their grievance petitions, wherein they have stated that their duties consisted of sewing, cleaning the machines, .Delivering goods to skilled workmen and allowing workmen for afternoon prayer. In their affidavit in evidence they have both stated that their grievance application may be treated as part of their affidavit-in-evidence. It is contended that in the cross-examination of the respondents, their aforementioned contention that they were doing work of sewing and cleaning the machines and delivering the goods to skilled workers which duties involving manual work, have not been challenged. It is further contended, that mere fact that, they were also doing supervisory work, would not exclude them from the definition of workers, because they were doing manual work also and these manual duties could not be said to be incidental to their supervisory work. The learned Labour Court has also held that the respondents to be workmen believing their statement with regard to nature of duties and also because the appellants did not produce the `job-description' of the respondents. Mirza Hassan Askari, witness for the appellants has stated in the cross- examination, that the respondent had power to appoint workers and remove the workers but did not produce any document showing that the respondents had such powers or that they did appoint any worker. However he showed his ignorance as to whether the respondent had removed any worker. He also admitted that supervisors worked as skilled workers.
7. Mr. Mahmood Abdul Ghani relied upon the case of Project Manager, Milco Project Packages Ltd. v.
Sarfraz Khan 1983 PLC 622 wherein learned Punjab Labour Appellate Tribunal held "employee responsible to get work done from workers, supervising machines and their repairs by workers, occasionally giving practical instructions to workers in repair of machines and not performing mainly any manual or clerical work not be treated as a workman".
8. This Tribunal in the case of Hafeezur Rehman v. Vice-President, United Bank Limited 1982 PLC 294 held that 'onus was upon the petitioner to prove that he was worker'. It was further held 'that the power to hire and fire was not determining factor but the determining factor was whether clerical or manual work was direct, immediate and substantial parrt of work.'
9. In the case of Syed Amir Shah v. Karim Cotton Mills Ltd. 1987 PLC 533 this Tribunal had held the employee employed as a jobber drawing salary of more than rupees one thousand per mensem and not supposed to do skilled or unskilled manual or clerical work was not a workman.
10. In the case of Workers of Bata Shoe Co., Lahore v. Bata Shoe Co. Ltd. 1971 PLC 1, the Hon'ble Supreme Court held 'foreman who is a person holding supervision and management in a factory could not be held to be workman on the mere fact, that such a person is doing something with his own hands by way of checking or testing work done by other workmen'.
11. In the case of Shah Hussain v. Kotri Textile Mills 1981 PLC 871 this Tribunal had held a 'Jobber having duty to train workers and supervise work of workers besides signing production register not involving any manual or clerical work skilled or unskilled not to be a workman'.
12. It will be seen that all the above cases relied upon by Mr. Mahmood Abdul Ghani are distinguishable from the instant case. In the instant case from the evidence on record it appears that respondents were doing two duties one as supervisors and other involving manual work viz. Sewing, cleaning the machines etc. These manual duties cannot be considered to be incidental to their work of supervising thirty td forty workers. Even the witness of appellant admitted that supervisor was a skilled worker. Under the circumstances I am inclined to agree with the finding of the learned Labour Court that the respondents were workmen as defined in the Ordinance.
13. The second plea of the appellants that they have retrenched. The respondents as the appellants had given their Doubling Section on contract from 1-12-1988 does not appear to have been duly considered by the learned Labour Court. Both the respondents have admitted in the cross- examination that the Doubling Section had been given on contract by the appellants w,e,f, 1-11-1988 and the permanent workers had been terminated on that account. The order of termination clearly shows that the Doubling Khatta had been given on contract and therefore the management was unable to retain their services and therefore their services were terminated. They were also called upon to collect their legal dues alongwith one month's pay in lieu of notice. The respondents have not pleaded in their grievance petitions, that the appellants had victimized them but rather from their admission in the cross-examination it appears that, all the workers in Doubling Section were removed because the same was given on contract.
14. Mr. Mahmood Abdul Ghani has contended that owner has a right to re-organize his establishment and has a right to retrench the services of such workers whose services become redundant as a result of such re-organization. He has relied upon number of decisions in support of his contention. In the case of Lyallpur Cotton Mills v. Punjab Labour Appellate Tribunal and others 1991 PLC 32 a learned single Judge of Lahore High Court held: "It is within the exclusive discretion of the employer to run the business in the manner he thinks more suitable and beneficial. The respondent was incumbent of the Weaving Department.
Therefore, if the Department was closed the management was fully justified to say good-by to him."
15. In the case of Umer Din v. Messrs Gulf Airlines 1990 PLC 304 this Tribunal had upheld order of termination of employee of Gulf Airlines as a result of re-organization as the Airlines had handed over its business on contract to another firm.
16. In the case of Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court, Lahore 1965 PLC 216 Hon'able Supreme Court of Pakistan observed that: "Discharge of redundant workers after notice as a measure of reorganization carried out for bona fide purpose without any taint of victimization does not attract control of Industrial Court under section 30 of the Industrial Disputes Ordinance, 1959."
17. In the case of Messrs Emesco Industries Ltd. v. S. Irfan Ahmed 1983 PLC 981 this Tribunal held that 'termination of services of workers simpliciter on account of reorganization including giving of contract of work to independent contractor was permissible".
18. In the case of Abdul Jabbar and others v. Star Textile Mills Ltd. Appeal No, KAR-353 of 1989, decided on 19-9-1990 this Tribunal held the action of alleged reorganization by the management was mala fide and therefore the termination of services of workers on that ground was not sustainable .
19. It is settled law that mala fide has to be specifically pleaded and strict legal proof has to be adduced in support of such allegation. As pointed above there is no allegation of mala fide against the appellants nor it is pleaded that the respondents had been victimized for any reason. It is rather admitted that the Doubling Section (Khatta) had been given on contract and services of all the employees working therein were terminated. Such contract per se cannot be considered mala fide unless so alleged and proved.
20. The order of termination is in writing showing explicit reasons for removal of the respondents from service. However, the learned Labour Court has invalidated this termination on the ground that it appears to have been passed after the receipt of grievance notice from the respondents.
The letters of termination are dated 31-10-1988. It is alleged that the respondent refused to accept the same and therefore they were sent the same by registered post. The learned Labourt Court has also held , that letters were sent by registered post on the wrong address. Be that as it may the fact remains that the letters of termination in writing were produced by the appellants in the Labour Court alongwith their reply statement on 22-2-1989 and the respondents were given copies of same with the reply statement. In the absence of any conclusive evidence to the effect, that the letters of termination were served upon the respondents prior to 22-2-1989, the termination order would take effect from 22-2-1989. The respondents would be deemed to be in service of the appellants upto that date and would be entitled to receive their emoluments upto that date. From this date the services of the respondents would be deemed to be terminated in terms of the termination order. Reliance in this respect is placed upon the case of Muhammad Rauf v. Messrs Makran Fisheries Ltd. And another 1981 SCM R 631.
21. In view of the above discussions, the appeals of the appellants are allowed and the orders of the learned Labour Court are set aside. The orders of termination of the services of workers/respondents are to take effect from 22-2-1989. They would be entitled to all the legal dues upto that date.