DECISION ' These four connected appeals are directed against the order of the Second -Sindh Labour Court, Karachi, whereby the respondents were ordered to be reinstated in service by Suzuki Motorcycles Pakistan Limited but without any back benefits.
' The facts, in brief, are that four respondents namely Shahid Akhter, Lifter/Driver, appointed by the Company on 8-4-1990, Ali Baghdool, Storeman, appointed on 2-12-1992, Qasim Ali, Helper, appointed on 17-6-1993 and Manzoor Ali, Welder, appointed on 6-6-1993, were served letter of termination by the Company on July 29, 1993. One of these letters reads as under:-- "That on ad-count of continued huge losses sustained by the Company since its very inception, the management is compelled to re-organise itself and in that process has decided to retrench the surplus workers.
' Since you are the only fork lift operator, the management in order to minimise the cost has decided to abolish the post of the fork lift operator. You are as such surplus to our requirement, your services are hereby terminated with immediate effect in lieu of one month's notice pay and in terms of Order 12(3) read with Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
' Please collect all your legal dues on any working day from the factory office.
' Yours faithfully, ' for SUZUKI MOTORCYCLES PAKISTAN LIMITED.
(Sd.)
' SARTAJ AHMED, ' SENIOR MANAGER, A&P."
' Thus, the services of these workmen were terminated under Order 12(3) of the Standing Orders Ordinance, 1968. Shahid Akhter was the only Fork Lift Operator and he had 2-1/2 years' service. Ali Baghdool, Storeman had 8 months service, Qasim Ali, Helper, had only 40 days' service and Manzoor Ali, Welder, had one month twelve days' service. The reasons shown in the Written Order were "huge losses sustained by the Company compelling re-organisation and decision to retrench surplus workers".
3. It is a case of the Suzuki Motorcycles Company, as stated by Mr. Mahmood Abdul Ghani, Representative, that on account of continuous rise in the value of Yen and continuous fall in the, value of Pak Rupee the Company, importing parts of Motorcycles, sustained losses from the year 1990 to the year 1995. There was loss of 34 millions in 1990, 68 millions in 1991, 54 millions in 1992, 38 millions in 1993, 60 millions in 1994 and by 1995 there was accumulated loss of 222 millions out of the paid-up capital of 292 millions i,e, 85% of the capital was consumed in losses by the year 1995.
To prove these losses Mr. Mahmood Abdul Ghani has produced Audited Balance-Sheet of the Company at the appellate stage and has shown that these continuous losses and shifting of the workshop resulted in decrease of production necessitating retrenchment of surplus workers. Mr. Mahmood Abdul Ghani has cited 1984 PLC 1385 Skyrooms Limited v. Sindh Labour Appellate Tribunal and 2 others. In the above decision by Ajmal Mian and Hyder Ali Pirzada, JJ. Per Ajmal Mian, J. On the question of additional evidence at appellate stage it was held relying on earlier decision of M/s. Merck Sharp and Dohme Pakistan Ltd. (1982 PLC 148) "that general principles of C.P.C. Are applicable to Labour Appellate Tribunal but it has more discretion and wider powers to allow the additional evidence at the appellate stage".
4. Regarding the objection raised by Mr. S.P. Lodhi that the termination of these workers was not bona fide Mr. Mahmood Abdul Ghani has pointed out that out of the four respondents two had service, when terminated, only for 40 days each and they could not have been active members of the Union, that no specific allegation has been made that as Union Members they had annoyed the management. Being a member or office-bearer of the Union does not ipso facto prove termination of service to be on account of union activities. There is a heavy burden on the person alleging such activity to prove by specific evidence, that they had caused annoyance and their services were terminated on account of mala fides.
5. Mr. S.P. Lodhi for the workers has next argued that the Company had engaged ten more persons as workers in violation of Order 13 but they had called them apprentices. Mr. Mahmood Abdul Ghani, in reply to this argument, has cited Apprenticeship Ordinance, 1962 under which it is legally necessary for the Company to engage apprentices on payment of stipends for fixed terms in the Factory. They cannot be called workers and their terms and conditions are governed by'
Agreements executed by them before Labour Officers.
6. Every employer has, thus, the right to re-organise the management and effect retrenchment, if necessary, for eliminating surplus staff for economy, otherwise no manufacturing concern can continue as viable. The workers should not consider themselves to be a permanent liability so that if they are once employed they cannot be retrenched at any time like the "Old Man of the Sea" in Sindbad Stories who could not be dropped off, once he was lifted by the victim on his shoulders.
7. Lastly it has been pointed out that only an "employer" could pass the order of termination and in this case they have been passed by Sartaj Ahmed, Senior Manager, Administration and Personnel.
Under Standing Order 2(c) "employer" means the owner and it includes Manager of the Factory and any person responsible to the owner for the supervision and control of such establishment.
Senior Manager (A&P) would, therefore, be included in the term "employer" and the orders signed by him will be as effective as those by the employer himself. The termination of services of the surplus staff by the management could not be considered to be mala fide for the reasons mentioned by the Labour Court or as argued by Mr. S.P. Lodhi. The order of reinstatement of the respondents is, therefore, set aside and the appeals are allowed.