DECISION ' This is an appeal from the decision of Fourth Sindh Labour Court, Karachi, whereby, the grievance application of applicant, Muhammad Ashfaq Khan, a worker in Pakistan Steel Mills, for his re- instatement, was dismissed.
2. The facts of the case, in brief, are that appellant, Muhammad Ashfaq Khan, was appointed as Calligraphist in the Pakistan Steel Mills, on 15-8-1989. After completion of probationary period he was appointed as an Assistant on 10-6-1990 for a period of 89 days (Exh. D annexed to his affidavit filed as evidence in the Labour Court). Again by letter, dated 9-9-1990 he was engaged as temporary Assistant from 9-9-1990 to 30-9-1990 for 22 days as per Exh. D-1. Thereafter, another letter was issued dated, 10-10-1990 by which he was employed ill the same post from 2-10-1990 to 30-10-1990 for 89 days Exh.D-2. This practice continued and by letter dated 2-1-1991 his services were engaged from 1-1-1991 to 30-3-1991 for 89 days (Exh. D-3). Under another letter dated 24-2- 1991 his services were continued from 24-2-1991 (Exh. D-4) By letter dated '13-3-1991 he was again appointed from 1-1-1991 to 30-3-1991 for 89 days (Exh. D-5). On 4-4-1991 he was given another letter of appointment for the same post from 1-4-1991 to 28-6-1991 for 89 days (Exh. D-6) then again on 30-9-1991 he was appointed in the same post from 110-1991 to 28-12-1991 for 89 days (Exh. D-7) and lastly by letter dated 2912-1991 he continued in the same post from 1-1-1992 to 29-3-1992 again for a period of 89 days (Exh. D-8). But his services were suddenly terminated on 311-1992 orally in contravention of the last letter. No reasons for termination of services were given. Thus, the applicant was employed in the respondent Steel Mills August; 1989 to 31-1-1992 for a period of more than two years but he was all the time appointed for one day less then three months just to designate him as a temporary worker.
3. Mr. Latif Saghar the learned Advocate for the appellant has further pointed out that although the appellant was posted against a permanent job as Assistant, he was designated to be a temporary worker, by each time appointing him for one day less then three months, and he was reappointed, after an interval of merely two days or so every time. This way he continued for more than two years and ultimately his services were terminated by an oral direction and not by a written order and without assigning any reason. This factual aspect of the case is hardly disputed and the Manager Syed Shamshad Hussain Shah in his cross-examination has admitted that all these letters were issued to the appellant from time to time and his service was terminated with effect from 29-3-1992. That he was orally terminated on 31-1-1992.
4. The learned counsel for the appellant has first argued that under the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance clause (1) showing classification of workmen "permanent workman" is a 'workman' who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the Industrial or Commercial establishment and includes a `badli' who has been employed for continuous period of three months or for 183 days during any period of twelve consecutive months. The learned Advocate has pointed out that appellant had worked for 289 days in 1990 for 356 days in 1991 and for 31 days in 1992. He was, thus, a. Permanent worker as defined in Standing Order 1(5)(b). On this point the learned counsel has cited 1988 PLC 456 (Government Transport Service,. Lahore v. Riaz Ahmad) it was held by the Appellate 'Tribunal in that case that the badli employee becomes permanent if he served continuously for 183 days in a year with gaps. In 1984 PLC 943 I.C.I.
(Pakistan) Manufacturers Ltd. v. Ahmad Khan and 6 others--it was held by the Appellate Tribunal that non-production of attendance register raised presumption against the employer.
5. It has, therefore, been rightly pointed out that the appointment of a person continuously for one day less than three months against the post likely to last for more than nine months gives permanent character to the worker in that post and any contravention to circumvent the legal requirements would defeat its own purpose.
6. Mr. M. Latif Saghar has then pointed out that under Standing Order 12(3) the services of the workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In this case it is admitted position that services of the appellant were orally terminated and no reason was stated for the termination. The learned counsel z ' has further pointed out that the word 'workman' in this sub-clause (3) is not qualified as a permanent workman or as probationer or badli. That clause applies to all workmen including the appellant and if this requirement is contravened the aggrieved person can take action in accordance with section 25-A of the I.R.O., 1969 to seek redress. On this point the learned counsel has cited a judgement of this Court being Appeal No, KAR-174 of 1994, decided on 7-4-1994 by Mr. Justice (Retd.) Agha Ali Hyder, Appellate Tribunal. Concluding para. Of this judgment reads as under: "What is worse is that according to clause (3) of Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 'the workman cannot be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken'. That also was not done, though it was the bounden obligation of the appellants under the law. There is a plethora of case-law, that mere verbal termination of service, as patently it was, cannot hold ground."
' Likewise another judgments, KAR-388 to 402/89, delivered by this Appellate Tribunal (Justice (Retd.) Ahmed Ali U. Qureshi), has been produced wherein it was held that Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 requires that explicit reasons should be given for removal and considering permanent workman as temporary employee or being so designated Would be against the spirits or requirement of Standing Order 12(3) and such orders are not sustainable. In 1984 PLC 1097, it was held. That termination of service was illegal if the order was given orally without assigning reasons and was not in writing. In 1992 PLC 665, it was held by this Tribunal that even a temporary employee was entitled to protection contained under Standing Order 12(3) which provided that no worker should be removed from service except by an Order in writing stating explicit reason for the action taken.
There are number of judgments on the same point that such termination being illegal the worker was entitled to re-instatement with back benefits.
7. The appellant, in this case, has mentioned in his grievance petition as well as in his grievance notice and affidavit-evidence that he is jobless and that he is, since his termination, without a job.
This position has not been controverted or rebutted by the employers.
8. It has, on the other hand, been argued by Mr. Abdus Samad, learned Advocate for the Pakistan Steel Mills, that because the letter of appointment each time mentioned the post to be temporary which could be terminated any time no further written order of termination was necessary nor was it give with any reasons. He has further pointed out that the appellant was temporary and Standing Order 12(3) was not applicable to a temporary workman but he has not cited any authority in support of his contention.
9. I, accordingly, find that the termination of the appellant, who is a workman, orally without giving reasons for the termination is in violation of the Standing Order cited above as such it is of no legal effect. It is, therefore, directed that the appellant may be reinstated in service with all the back benefits, since he was not gainfully employed else where during the period after termination till his re-instatement.
10. For the aforesaid reasons the Order of the Labour Court is set aside and the appeal is allowed.