' Validity/operativeness of a decision, dated 31-3-1996, pronounced by the learned Presiding Officer of Punjab Labour Court No, '1, Lahore, has been assailed by the employer, namely, M/s. Wyeth Laboratories, Pakistan Limited, Gulberg, Lahore, through its Personnel Manager, the facts and legal propositions involved briefly being as below:
2. Mahmood-ul-Ahad was employed by the Wyeth Laboratories Pakistan Limited as a Packing Operator, Grade IV, in the year 1975, and his services were terminated, on 29-5-1991. It was observed by the employer that Mahmood had actually abandoned the employment and was not available to perform his duties, over a long time, in spite of gracious attitude of the management and the Wyeth Laboratories being a commercial establishment could not afford to keep the post vacant for an indefinite period, and was constrained to dispense with the services of the employee, in accordance with the conditions of 'Contract of Service'. He was paid one month's wages, in lieu of notice, and was told to stage exit from employment in final fashion.
3. According to Mahmood-ul-Ahad, the order passed against him by his employer was by way of victimization, that was occasioned on account of his trade union activities, and his services were terminated under the garb of his alleged absence from duty for a period of about fifteen months.
He claims to have served his employer with a valid grievance notice on 28-8-1991, through registered post, and when the notice was not attended to, he had no option but to have recourse to the Labor Court for the requisite relief.
4. It is a simple proposition that has cropped up for consideration by this Court in appeal, decision by the Labor Court having gone against the employer and in favor of the employee. It is maintained by the employer that the employee had actually abandoned employment, voluntarily, long time back, and establishment was under no legal obligation to issue him a show-cause notice or a charge-sheet or to make any probe against him by way of a departmental enquiry. It was not disputed that there was no charge of misconduct against the employee, who was, therefore, ousted from service in a manner, permissible by law, as also conditions of his employment.
According to the respondent, however, he had successfully completed the probationary period, had been confirmed in his job, and had attained the status of a permanent workman. He was elected as President of the Wyeth Workers Union on 29-5-1991, and, on the same day, final action was taken against him, although he was not conveyed the order, and he became aware of it about a week afterwards. The termination order dated 29-5-1991 is Exh. P.1 and the grievance notice dated 28-8-1991 is Exh.P.2, postal receipt being Exh. P.3. He made an absolute denial of the allegation that he had remained absent from duty from March, 1990 to May, 1991, without leave or permission of the employer. Leave applications, he said, were with the establishment. He also repudiated the employer's plea that he had given up the idea of doing service and was no longer interested in the employment. As against his deposition, made as P.W. 1, the Manager (Personnel), Wyeth -:oratories, appeared in the witness-box as R.W. 1, his name being Mr.,kzhar Bilal, who tendered in evidence, Photostat copies of Mahmood-ulAhad's identity card, attendance register, application for employment, and letter of termination of his services. He was adamant that Mahmood had not attended to his duty in the factory from 1-3-1990 to 29-5-1991, as was indicated by his service record, Exhs. R-3 to R-17. He had also not intimated his employer about the reasons for his prolonged absence from duty. The establishment could not ignore such long absence of any worker from duty. He also testified that friends of Mahmood-ul-Ahad had been bringing verbal messages and telling the management that he would becoming, and the latter too conveyed to the worker oral messages, requiring him to join duty, with no positive response. Even after the termination of his services, Mahmood-ul-Ahad did not make any effort to come back or to tell the establishment as to why he had remained absent from duty for such a long period. Mushtaq Ahmad, Clerk, who made the entries in the Attendance Register, photostat copies being Exhs. R-3 to R-17, has not been examined in evidence; but R.W. l's cross-examination in that regard is revealing.
For an absent employee, 'A' is marked, but in the case of Mahmood-ul-Ahad, it was not done like that, the reason being that the establishment had the impression that he might be late and on coming late he would explain his position. The explanation furnished by the witness is amusing indeed. The establishment kept on waiting for arrival of Mahmood for as long as fifteen months and was so considerate to him that an order about increase in the salary on 27-1-1991 (Exh.P.4) was also passed, although Mahmood-ulAhad was stated to have remained absent from duty incessantly from 1-3-1990 to 29-5-1991. These entries also were fluid-borne. This would make the record truly doubtful, and the reason given by the witness for applying fluid is not at all convincing, as he has said that this had been done to convert presence of the petitioner (before the Labor Court) to show his absence from duty, in actual practice. Surprisingly, as admitted by R.W. 1, no letter or warning had been sent to the employee during that long period, asking him to join duty.
5. The learned lower Court has arrived at a correct conclusion that under the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a permanent workman, employed by a Commercial Establishment, could not be ousted from service in the manner it was done, and a commercial Institution, a Medicinal Firm, could not keep post of an operator vacant for that long period continuously, even if he was not holding a key post. Such an employee who had remained in service for a period exceeding nine months could invoke the aid of the labour laws, by having recourse to the competent Labor Court, even if there was no charge of misconduct against him. A grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, would be maintainable, as order of employee's ouster from service could not be regarded as an order of termination D, required to be made in writing. It was a regular order of termination of services of an employee, and absence of the employee from service, without leave, was far in excess of ten days, at a stretch. Termination order, in the present case, in the opinion of the learned lower Court, is a device adopted by the management for avoiding a domestic enquiry, which, in the circumstances of the case, was a must, as vacancy of a post, for that long period, was likely to result in financial loss to the establishment, although the respondent before the Labour Court did not state like that, in the written statement/reply submitted in response to the grievance petition. 'Job description' of Mahmood-ul-Ahad also was not placed on record and explained in evidence, and one cannot lend ears to the appellant's assertion made as respondent before the Labour Court that oral messages were exchanged between the establishment and the employee, for full fifteen months. The establishment kept idle and quiet and attitude of inaction was shed only when (on 29-5-1991) the employee was elected as president of the workers union, and the establishment became probably frightful of his trade union activities. It has not incorrectly been observed by the learned Court below that the post of Mahmood should have been filled in within a reasonable period and there was no justification for the establishment to keep quiet and remain in state of inaction for a period of 15 months. It is not averred that any worker in his place had been appointed, before he was asked to quit. Ultimately, a short cut was adopted for dispensing with the services of Mahmood-ul-Ahad, in the Labour Court's view, and it was not difficult to find the reasons for adoption of this course by the establishment. If Mahmood had become that lethargic or obstinate, there was no earthly reason for an increase of fifty rupees per month, with effect from 1-1-1991, that was made in his monthly emoluments. The same was conveyed to the employee at his employment address' and not his home address' which circumstance will leave little doubt about the fact that till 1-1-1991, at least, Mahmood-ul-Ahad had been performing his duty and attending to his job, allright. It seems certain that he was made a victim for his trade union activities on 29-5-1991, when he rose to the formidable office of the President of the Union. The learned lower Court has taken note of the fact that Mahmood's claim of having been so elected has remained uncontroverted, and he has not even been cross-examined, on that count, and there is no reason why his claim made in that behalf be not treated as correct.
6. I have no reason to doubt the bona fides of the employee and to rescind the order of termination of his services. The impugned order rendered by the learned Labor Court on 31-3-1996 is certainly not susceptible to interference by this Court and is upheld. As it has not been proved on record that Alahmood has been doing any other job or has gainfully been employed anywhere, ever since dispensation of his services, on 29-5-1991, I would hold him entitled to the back benefits, in entirety, as well. The impugned decision dated 31-3-1996 is, in to, maintained, therefor. The appellant shall also bear the costs of the litigation throughout.