DECISION ' This appeal arises from an order passed by the Fifth Sindh Labour Court, Karachi whereby the grievance petition of the appellant was dismissed as being not maintainable.
2. The facts of the case in brief are that the appellant was appointed as General Clerk on 4-2-1991 at Head Office Azeem Textile & Garment Industries (Pvt.) Limited, P.E.C.H.S., Karachi. According to the evidence of the appellant the Head Office Unit employed about 30 persons as they thought of forming the Union. Such notice was given to the company and application was filed with the Registrar for registration of the union. The management got annoyed so they terminated the services of the 5 office-bearers of the union including the present appellant. The letter was sent to the appellant dated 3-6-1991 that his services were being terminated by way of retrenchment due to shortage of export orders from abroad. This letter was sent by registered post from the night Post Office and was received by about 6-6,1991; Meanwhile on 4-6-1991 the appellant was stopped from entering the Head Office.
3. The appellant then filed his grievance petition before the Labour Court but pending the petition the management realised that under section 8-A of the Industrial Relations Ordinance no office- bearer of a trade union or a workman can be discharged or dismissed during the pendency of an application for registration of the trade union with the Registrar. So the order of termination was withdrawn by the management pending the Court proceedings. On 24th September, 1991 another order was issued re-instating the appellant in service but on 26th September, 1991 the appellant was served with another order of termination informing him that for some technical reasons the previous order dated 3-6-1991 was withdrawn but another order is being served as a retrenchment measure as a General Clerk would be surplus to their requirements. The appellant filed another grievance petition in the Labour Court but the Labour Court passed an order that:-- "Since the termination of the applicant was not in connection with any industrial dispute he could not therefore seek remedy under section 25-A of the I.R.O.
1969."
' The petition of the appellant was accordingly dismissed.
4. It has been argued by ,Mr. S.P. Lodhi for the appellant that the withdrawal of termination order, re-instatement and then a second termination order clearly show that the termination was not for the reason of re-organisation but it was mala fide. Mr. Jehangir Khan for the respondent-company has on the other hand argued that the Garment Factory is no longer working. However the appellant was a clerk working at the Head Office of the company and he was not employed at the Garment Factory. These were two separate units and for dismissal of the Clerk the closing down of the factory would be of no consequence. It has next been argued that the Head Office was employing less than 20 workers which was governed under the Shops and Establishment Ordinance. It has been pointed out by Mr. Lodhi that in the cross-examination the appellant has clearly stated that the Factory's Head Office employed 28 or 29 persons and it was incorrect that the company was running at a loss. It has been admitted by Mr. Jehangir Khan that the company has not been wound up nor liquidated and it is very much in existence even at present. The assertion of the appellant that the Head Office had 28 or 29 workers has not been controverted by the respondent-company. It is true that the burden of proving that the respondent-company had 20 or more workers was on the appellant but once the A appellant had shown that 20 or more persons were employed in the company, it was for the company to rebut this evidence. This has not been done, The learned. Advocate for the respondent cannot now be heard to assert that the company's Head Office was governed under the Shops and Establishments Ordinance.
5. The company it appears even avoided to receive notice of this Courts after admission of the appeal and the company had to be served by substituted service through publication. Ultimately the company is being represented by an Advocate after the service was so effected. The sequence of events clearly shows that the company wanted to get rid of the office-bearers of the union but when they found that this would amount to unfair employer's practice to terminate the services of the workers during formation of the union they withdrew the order but again carried out their purpose by repeating the termination. When the company is in existence it cannot be imagined that a clerk would have to be retrenched as a result of re-organisation. The dismissal therefore appears to be mala fide.
6. The order of dismissal of the petitioner by the Labour Court also appears to be strange. The Labour Court has held that there was no industrial dispute when the services of the appellant were terminated. Under section 2(xiii) of I.R.O. Industrial Dispute means "any dispute or difference between employer and employers or between employers and workers, between workmen and workmen which is concerned with the employment or non-employment or the terms of employment or conditions of work of any person". In the present case the dispute is between worker and the management regarding non-employment of the worker and it is an industrial dispute falling under the definition in the I.R.O. It is not clear how the Labour Court held that the dismissal of the worker would not be covered under the definition of an industrial dispute and considered the grievance petition under section 25-A of the I.R.O. As being not maintainable.
7. The order of the Labour Court is accordingly' set aside and the appeaL is allowed. The ,appellant may be reinstated in service with all the back benefits within 30 days from the date of this order.