DECISION ' Briefly stated the facts of this case are these: Respondent Muneer Ahmed was initially appointed in the Appellant Bank (M/s Allied Bank of Pakistan Limited) as Clerk-Cum-Cashier. He was subsequently promoted as Officer Grade-III with effect from 1-1-1992. While in service of Appellant Bank, he was arrested in allegedly false murder case. He furnished such information to the Appellant Bank requesting at the same time for leave as he was unable to perform his duties. It was said that 205 days Earned Leave was to his credit. But the Bank Management instead of granting him leave, terminated his services vide Order dated 18-2-1997. Before such termination neither show-cause notice was given to him nor any domestic enquiry was held. Seeing no other alternative the respondent sent grievance notice to the Appellant Bank by Registered Post, but the same was not replied nor his grievance was redressed. He was, therefore, constrained to file grievance petition which was admitted on 30-5-1997 and notice was issued to the Appellant Bank.
2. In response to the said notice Mr. Azizullah Bhambro the Bank's Attorney filed Vakalatnama of Mr. Manzar Alam, Advocate on 24-6-1997. On the same date application under Order VII, Rule 11, C.P.0 was filed on behalf of the Bank praying therein that since Standing Orders Ordinance 1968 and I.R.O., 1969 were not applicable, the grievance petition be dismissed as not maintainable. The application was fixed for hearing/arguments on 9-9-1997 but neither party nor their Advocates turned up on the said date. The application was, therefore, dismissed for non-prosecution vide order, dated 9th September, 1997. It appears that the Appellant Bank did not care to get the said Order set aside. Thereafter, the case was fixed on 23-9-1997 for Reply Statement but on the said date neither the Appellant Bank nor their Advocate Mr. Manzar Alam was present. They remained absent without intimation to the Court. Accordingly the Bank's side was closed and the case was adjourned to 2-10-1997 for ex parte proof. In the meantime the Appellant Bank did not make any move for having the Order of closure of their side set aside. They also did not turn-up in the adjourned date i,e, 2-10-1997. However, the respondent who was in Jail sent his affidavit-in-ex parte Proof duly attested by Jail authorities through his counsel Mr. Nizamuddin Baloch. But due to absence of the Appellant Bank and their Advocate the respondent's affidait-in-evidence remained unchallenged and unrebutted. The learned Labour Court after, hearing the respondent in person and his counsel and perusing the case record held the Order of respondent's termination of services as not maintainable and without legal force. Consequently the said order was set aside by ex parte Order, dated 17th March, 1999 with direction that respondent be reinstated in service and period of 205 days earned leave standing to his credit be treated as earned leave due to the respondent and remaining period of his absence be treated as leave without pay. It is this Order that Appellant Bank has challenged in this appeal.
3. I have heard learned counsel for both the parties Mr. M.L. Shahani for respondent and Mr. Shahid Anwar Bajwa for the Appellant Bank. I have also perused the case file carefully.
4. The most point to be decided in this case is whether the Order of termination of the respondent's services was legally correct. The termination order dated 19-2-1997 reads as under:-- "Since you have been arrested by Babarloi Police in a murder case on November 22,1996 and as you have been unable to get any bail so far. The management cannot keep the said post vacant for an indefinite period Hence your services are hereby terminated with one month notice pay in lieu of notice with immediate effect. You can depute any responsible person with the authority letter to collect your legal dues in full and final payment cheque on any working day."
' "It is clear from the above Order that services of the respondent were terminated because of his arrest in a murder case and further that he was unable to get any bail upto the date of Order and, therefore, the management could not afford to keep the post vacant for indefinite period. The said Order is silent as to the respondent's request for period of 205 days as earned leave and thereafter for leave without pay. By the time the termination order was issued the respondent had already served the Bank for nearly 21 years. It would be sheer injustice to the respondent in his long blotless service was lightly ignored particularly when he was helpless being in police custody in an allegedly false murder case that he could not perform his duties. As per sub-clause (e) of clause
(3) of Standing Order 15 of Standing Orders Ordinance, 1968 habitual absence without leave or absence without leave for more than 10 days is treated as misconduct but in the present case the respondent's absence from duties was not wilful as he was arrested in some criminal case and was, therefore, not free to attend to his duties, therefore, his absence could not be held to be misconduct on his part and for the purpose of awarding punishment to him. Even if it was considered as misconduct he could not be punished by way of dismissal from service or by awarding him any other punishment without holding domestic enquiry. Admittedly no enquiry was held in his case. The Bank authorities should have shown their sympathy to their old employee with more than 20 years service to his credit. At the time of his adversity. He should have been allowed all such benefits permitted by law/rules. It was worthwhile rather just proper to await the decision of the Court in the case of the respondent before passing any definite order about termination of his services. Manifestly the fate of the respondent was hanging in balance when his services were terminated. It was one of the requirements for issuing termination order that explicit reasons be mentioned in the termination order. In my opinion the reasons given in the termination order were not sufficient for bringing end to long service of more than 20 years of the respondent. To say that by the time the Termination Order was issued he was not admitted to bail and further that management could not keep his post vacant for indefinite period did not satisfy the requirement of the law referred to above. His conviction alone would have provided the Bank authorities the sufficient reason for termination of his services but so long the final decision was not taken in the case he was not liable to lose his job after he had availed all the leave due to him, further leave if necessary could have been granted to him without pay and for that period the bank management was free to make a temporary appointment in his vacant post and in that way the Banks work would not have suffered. However, the learned counsel of the Appellant Bank contended that the Bank Management was empowered to terminate the services of the respondent after satisfying the requirements of law. According to him the requirements were that the order of termination should be in writing and that the explicit reasons should be specified in the said order and lastly one month's notice or pay in lieu, thereby be given to the person" whose services were to be terminated.
Of course 2 of these requirements are satisfied as the impugned order shows that it was not only in writing but the candition of one month's notice was also fulfilled but as I have stated above the third and most importnt requirement namely the "explicit reasons" was not specified. The reason that Bank Management has given in the termination order is rather arbitrary and not at all just and reasonable. The learned counsel of the Bank has relied upon the decision of this Tribunal reported as 1980 PLC 780 but this case is distinguishable as in the reported case the workman was convicted for imprisonment for one year. He has further cited the case of Karachi High Court reported as 1991 PLC 508 in order to show that like the reported case in the present case too the termination of services was simpliciter, I have already touched this point in foregoing paragraphs holding that termination of the respondent's services was not simpliciter. On the other hand the learned counsel for the respondent had relied upon unreported judgment of Supreme Court of Pakistan wherein it was held:
5. "It is an admitted fact that both the respondents were the permanent employees of the Corporation and had rendered 15 and 20 years service as mentioned earlier. It is also an admitted fact that they were not heard before their termination orders were passed, nor any explanation was obtained from them, nor prescribed procedure was followed. They had not attended their jobs for only 12 days, when admittedly they were in custody. Ultimately they were acquitted. Under the circumstances, their termination orders were illegal and contrary to the established judicial norms."
' The above Judgment of the Supreme Court is fully applicable in the present case because the respondent like the employees mentioned in the said Judgment had put in more than 20 years service and no opportunity of hearing was provided to him before issuing the termination order.In view of above discussion I upheld the decision of the Labour Court and hold that the termination order was not in accordance with law and, therefore, illegal.
Appeal dismissed.
2001 PLC 657 [Sindh Labour Appellate Tribunal] before Munawr Ali Khan, Chairman ABDUL QAYUM and 12 others versus Messrs AQIF SILK FACTORY, KARACHI Appeals Nos. KAR-125 to KAR-137 of 1999, decided on 17th May, 2001.
Industrial Relations Ordinance (XXIII of 1969)--- ----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(a) & S.Os. 2-A, 12---Termination of service---Grievance petition, maintainability of---Relationship of employee and employer---Proof of existence---Appellants who claimed to be the employees of respondent had alleged that their services had been terminated without any written order and without show-cause notice or enquiry---Respondent denied the very existence of relationship of employer and employee between him and the appellants---Respondent also denied that 20 or more workers had remained on his roll at any time during the preceding 12 months---Burden to prove existence of relationship of employee and employer between the parties was on the appellants but they had failed to discharge the same either by oral or documentary evidence or by both---Appellants had largely relied upon their oral evidence contained in their affidavit-in-evidence, but said evidence could hardly be believed because in view of the complete denial of such relationship by the respondent said oral evidence would be treated as word against word---Respondent by producing oral as well as documentary evidence had proved that only 7 persons were working in his factory which was registered under Shops and Establishments Ordinance, 1965---Names of the appellants nowhere existed in employment and remuneration registers produced by the respodent---None of the appellants was provided with appointment order in writing showing terms and conditions of their services---Appointment, if any, of the appellants, was illegal, ab initio in absence of such basic document and they were not entitled to any legal rights---Grievance petitions filed by the appellants were rightly dismissed by the Labour Court being not maintainable. [pp. 659, 661] A, B, C, D, E & F Rafiullah for Appellants.
Mehboob Rizvi for Respondents.
Date of hearing: 8th May, 2001.
DECISION ' In the Constitutional Petition No,D-851 of 2000, the Sindh High. Court by its Order dated 25-11-2000 set aside the judgment dated 7-12-1999 passed by my learned Predecessor Justice (R) Tanzilur Rehman and the matter was remanded back to this Tribunal for fresh decision after providing opportunity of arguments to the parties' counsel. In compliance with the said Order Mr. Rafiullah was heard for appellants and Mr. Mehboob Rizvi for respondents' Factory in all the thirteen appeals which had arises from the common Order dated 13th July, 1999 of Sindh Labour Court No,1 Karachi.
2. The factual background of the aforesaid appeals may be summarized as follows. The appellants Nazir Ahmed, Sarfaraz, Muhammad Rafiq, Muhammad Aslam, Khalid Farooq, Muhammad Rashid and Abdul Qayyum were appointed in the Respondents' Factory as Weavers on 14-6-1995. Though appellant Mubarak Ali was appointed in the same capacity on 15-1-1994 and appellants Muhammad Masood Ahmad. M.A. Shabbir Khanial and Muhammad Nawaz were employed in the said Factory as Provinders on 15-1-1994, 18-1-1994 and 14-6-1995 respectively whereas appellant Ghulam Hussain entered service of Respondent's Factory as a chowkidar/Coolie on 14-6-1994 and appellant Abdul Latif as Munshi on 19-1-1994. The appellants' case is that the Respondents-Factory situated on Plot No,S.A. 37-38. Sector No,4. Qasba Town, Manghopier Road, Karachi and the said factory consists of number of sections/Departments apart from Security Section and Main Office where more than 38 workers were employed and hence all Labour laws are applicable to the Respondents Factory. According, to the appellants' version of the case though the Respondents- Factory was working round the clock in 2 shifts, yet in violation of Labour Laws the said Factory denied holidays, Socialy Security and other benefits due to the workers. Appointment Letters, Security Cards, Ticket Nimbers were also not issued to the workers. Because of such omissions on the part of Respondents Factory the appellants alongwith other workers formed trade union to get their rights and benefits. On this the Respondents Management was so annoyed that on 17-7-1999 the appellants were physically thrown out of their jobs with the help of hired Goondas and their services were terminated without any written order and without show-cause notice and enquiry.
Thereupon, the appellants sent grievance notice dated 13-10-1997, each appellant sending a separate notice by Registered Post. As their grievance remained un-redressed they filed grievance petition, each appellant filing separate petition which were, however, dismissed by common orders as mentioned above.
3. In their Reply Statement the Respondents Management denied the very relationship of employer/employee between them and the appellants. It was also denied that 20 or more workers had remained on the Roll of Factory Management at any time during the preceding 12 months.
Accordingly Standing Orders Ordinance, 1968 and I.R.O. 1969 were not applicable. As regards location of the Respondents' Factory, according to the Management it is situated on Plot No,A/38 and not on Plot No,A/37 which was in occupation of Rashid Silk Factory. The Respondents Management have denied that any grievance notice was served on them. They have also denied that the appellants were ever called by them or that they threatened the General Secretary of the Union. Admitting the receipt of letter dated 1-9-1997 from Assistant Director Labour they have stated that it was duly replied by letter dated 5-9-1997. According to them the said Assistant Director Mushtaq Ahmed held enquiry as a result of which the application of the Union for certification as C.B.A. Was rejected vide letter dated 9-11-1997. Consequently the Registrar of Trade Union filed Application in Labour Court No,V for cancellation of Registration of the Union.
4. All the appellants filed their affidavit-in-evidence and were cross-examined thereon. The Respondents Management's employee Fazal Moula also filed his affidavit-in-evidence in each case and was cross examined. On the other hand Tariq Nisar filed his affidavit-in-evidence on behalf of the Respondents Management and was cross-examined. His cross-examination in Application No,175 of 1997 was adopted with consent of both the parties to be read as same in all other applications. The Respondents Management also examined three officials namely Abdul Manan, Labour Inspector. Muhammad Raunaq Khan and Mushtaq Ahmed Assistant Director Labour and were cross examined. As stated above I heard the learned counsel of both the parties and went through the massive record particularly relevant documents available in the file.
5.
5. The crucial point to be determined in this case is existence of relationship of employers/employees between the parties. On one hand all the appellants have stated obviously on oath in their Affidavit-in-Evidence that they were employed and have worked in various capacities in the Respondents' Factory most of them as Weavers, some as Providers, one as Chowkidar and one as Munshi. Thus, all the appellants claimed to be employees of the Respondents' Factory. However, this relationship has been vehemently denied in the reply statement submitted by the Respondents' Factory. In view of the respondents' denial of relationship between the parties, the burden was on the appellants to prove it. They could prove the relationship either by oral or documentary evidence or by both means. It would appear that appellants have largely relied upon their oral evidence contained in their affidavit-in-evidence.
That evidence can hardly be believed because in view of the complete denial of the relationship by the Respodnets' Factory, appellants' oral evidence at the most be treated as word against word.
But they have also relied upon photo copies of Identity Cards produced by appellants Nazeer Ahmed, Muhammad Aslam, Muhammad Nawaz and Muhammad Rafiq alongwith their affidavit- in-evidence. These Cards are shown to have been issued by the respondents' Management on request of the concerned appellant's in view of peculiar law and order situation prevailing in the City. There is, however, no satisfactory explanation on record to show why original Cards were not produced. Moreover, as rightly remarked by the learned Lower Court the Stamp of Respondents'
Factory on the Cards was not visible. It was also unbelievable that employers who make sure not to issue even basic documents like appointment order. Ticket Number or Old Age Benefit Card would issue the aforesaid Cards for a temporary period. Moreover, the omission to make a mention of these cards at the earliest opportunity i,e, at the time of filing grievance petitions only shows that the said cards were the result of some subsequent manipulation. Further, evidence relied upon by the appellants was some envelopes carrying the address of Respondents' Factory produced by appellants Abdul Qayum and Ghulam Hussain in an attempt to prove that the address of the Respondents' Factory on the said envelopes proved that the appellants were in the employment of Respondents' Factory. The learned Labour Court has given good reasons for rejecting the evidence of envelopes as unsatisfactory. Agreeing with his conclusions in this regard I have noticed that firstly the Stamps on the envelopes were not visible and secondly concerned postman was not examined in this connection nor the persons who had sent those envelopes were produced to give evidence in support of the appellants. These envelopes also do not find mention in the appellants' grievance petitions. As such they too, in my opinion were result of subsequent manipulation.
6. The evidence of Fazal Moula co-worker of the appellants was also of no help to them. There are more than one reason for disbelieving his evidence. Firstly like appellants he too was entangled in litigation with the same Respondents. Secondly in his case termination order was issued. If so, question arose what prevented the respondent Management from issuing termination orders in case of appellants. Moreover, inconsistency in his evidence also had the effect of rendering his evidence doubtful. According to his original pleading more than 30 workers were working in the Respondents' Factory but in cross-examination he reduced the number of workers to 20 only, and again he was unable to name them excepting four of them namely Rafiq, Aslam, Abdul Qayum and Sarfaraz.
7. So far Respondents Factory was concerned they produced two Registers one of employment and another of remuneration alongwith their reply statement. The said registers are silent ,so far the names of appellants were concerned. However, the appellants attacked the authenticity of both the registers declaring them to be forged and bogus. Despite such adverse version of the appellants their own witness Fazal Moula admitted his signature in the said Register.
8. As regards the documents filed by the appellants as Annexures A/5 to A/9 alongwith their affidavit-in-evidence, the respondents; witness Tariq Nisar has specifically stated in para. 5 of his affidavit-in-evidence that the said documents were forged and fictitious but he was not cross- examined with regard to this statement. As such his Statement remains unchallenged and unrebutted. Even otherwise these documents are of doubtful nature because they were not mentioned in grievance petitions. It appears from the evidence of respondents' witness Mushtaq Ahmed who was Assistant Director and who had made enquiry with regard to number of workers employed in the respondents' Factory that only 7 workers were working in the Respondents Factory.
He was cross-examined but nothing was brought out from him to show that he was a prejudiced witness. On top of all stated above the Respondents' Factory has produced a copy of Registration Certificate on Form-C which was issued under Shops and Establishment Ordinance, 1969. It proves that the Respondents' Factory was registered under Shops and Establishment Ordinance showing thereby that said Factory never employed 10 or more workers because in that case its registration would have been made under Factories Act, 1934.
9. In view of the above discussions the conclusions drawn by learned Labour Court are correct particularly because he has given convincing reasons in support of the said conclusions. Since the relationship between the parties was a crucial Issue and was not established. He rightly refrained from taking decision on other points including the point of limitation. Apart from this I would like to add a few more words. Though the number of workers employed in the Respondents' Factory was disputed and, therefore, it could not be safely held that Standing Orders Ordinance, 1968 and I.R.O., 1969 were applicable in the case yet if their applicability was presumed, then as provided by Standing Order 2-A of the Standing Orders Ordinance, 1969 every workman at the time of his appointment shall be provided with an order in writing showing the terms and conditions of his service. It is an admitted position that none of the appellants was provided with appointment order in writing nor any other document ordinarily issued in favour of the employee was given to them.
As such I am of the view that their appointment was illegal, ab initio because in absence of aforesaid documents their appointment was not in accordance with provision of law referred to above. The question arose if illegal appointee was entitled to any legal rights even if he was allowed to continue in service with connivance of the employer. The reply would be in the negative because the express provisions of law has got to be complied with. Even if any employee is allowed to continue obviously with connivance of the employer even then it was necessary to issue his appointment order as required by law If illegal appointment was terminated again without a written order i,e, no in accordance with law the employee concerned could not challenge it for the reason that the very appointment which was illegally terminated was itself illegal.
10. For aforesaid reasons the Judgment of the Labour Court is upheld and all the' 13 appeals filed against the said Judgment are dismissed.