DECISION ' These are three connected appeals involving common points of facts and law against the consolidated order of the Fifth Sindh Labour Court, Karachi allowing grievance petitions of the three respondents for re-instatement and back benefits.
2. The facts in brief are that respondents Abdul Lateef, Muhammad Iqbal and Shaukat Ali were working in the Carpentry Department of Hotel Metropole. On account of re-organisation the Hotel management closed down its Carpentry Department and transferred the work to a contractor.
They accordingly terminated the services of the respondents by an order in writing, dated 12th April, 1994. The reasons given were that they had decided to give operation and maintenance of entire Carpentry Department on contract basis. Their services had, therefore, become surplus and were terminated with effect from 12-4-1994. On the expiry of 30 days' period the respondents were advised to collect their dues including salary in full and final settlement of their accounts.
3. The Carpenters gave grievance notice to their employers and filed grievance petitions before the Labour Court on the grounds that Manager Personnel and Administration had no authority to terminate their services and secondly that the order of termination was mala fide because one of the petitioners/respondents had been elected as General Secretary of their Union.
4. Mr. Mehmood A. Ghani for Hotel Metropole has pointed out that there are number of authorities holding the view that Manager Personnel is competent to terminate the services of the employees.
That in this case this was done in implementation of the re-organisation Scheme and the Manager Personnel was also the Vice-President of the Hotel management. Mr. Mehmood A. Ghani has cited 1969 PLC 591. It was held in that case Usman Khan v. General Tyre and Rubber Company that: "Personnel Manager is also included to be an employer and the orders by him cannot be said to be bad in law."
5. In another case of Lal Khan v. Punjab Labour Appellate Tribunal 1995 PLC 675 it was held that: "Approval of the employer was not necessarily to be in writing. That order of dismissal of workman was not required to be passed by the employer himself -- All that is required by law is approval of the employer -- Where the workman failed to establish that such approval was not granted by the employer, dismissal of employee was not interfered with by the Supreme Court."
6. In another case of PIA Shaver v. Rahim Bukhsh 1980 PLC 1224 Z.A. Charm, J., Appellate Tribunal, held that the term "employer includes any person responsible to owner for supervision and control of establishment. That even Administration Manager was covered by definition of employer and the termination order signed by Administration Manager could not be contended to be not by the employer".
7. In the present case the person signing the order is not only a Personnel Manager but he is also an Administrator and Vice-President, implementing the re-organisation scheme. He, therefore, falls within the definition of an employer and the termination order cannot be termed defective on that account.
8. The next objection is that the termination is mala fide because one of the respondents had been elected as General Secretary of the Union. The mere fact that an employee is elected as office- bearer of the union will not render any action against him to be mala fide. The burden to prove mala fide lies heavily upon the worker who alleges mala fide as the main cause prompting any action against him. There is no other evidence on record to suggest the union activities to be the reason for termination. As held by Justice Inamullah Appellate Tribunal in 1969 PLC 459 M/s. Saifee Development Corporation Ltd., Karachi v. Inamur Rehman that: "Retrenchment simpliciter does not amount to victimisation even in case of an office-bearer of the Union. The allegation of victimisation due to union activities must be specific."
9. It is the privilege and right of the management to effect any change or improvement in the management by means of re-organisation even though it may result in retrenchment of some of the workers and retrenchment under Order 12(3) is permissible and cannot be called in question.
10. In Zeal Pak Cement Factory v. Chairman Industrial Court 1965 PLC 216 it was held by the Supreme Court of Pakistan per A.R. Cornelius, C.J. That: "Discharge is in material respects equivalent to 'termination of employment'. That the action of the Factory in respect of the employees retrenched as surplus to requirements, being bona fide, it did not attract the control of the Industrial Court under section 30 of the Industrial Disputes Ordinance 1959."
11. As a result of the above discussions, the order of the Fifth Sindh Labour Court for reinstatement in service with back benefits is hereby set aside C and these three appeals are allowed. The amount of back benefits deposited in this Tribunal may be refunded on expiry of 30 days.