DECISION ' The facts leading to this case may briefly be stated as follows. The respondent Muhammad Zakir was in service of the Appellants since 19-11-1981. As stated in his grievance petition agreement was arrived at between the CBA and the Management of the Appellants Company that all workers of the said company shall submit standard draft resignation whereupon they shall be paid ex-gratia at the rate of. Three months' salary for each year of service in addition to their other legal dues of Gratuity, Provident Fund and unpaid wages. Accordingly all the workers including the respondent submitted their resignation on 25-10-1995 but somehow the respondent's resignation was returned unacknowledged. He once again submitted his resignation on 10-1-1996. Though the other workers were paid their dues in accordance with the aforesaid agreement yet the respondent was denied the benefit of such payments and instead he was given two letters one from the Appellants Company and another from M/s Bayer Pakistan Limited offering in fresh employment with the latter company on new terms. This was not acceptable to him for two reasons; one, that he was not paid his dues arising from Provident Fund, Gratuity and other retiring benefits and two the terms of fresh employment in the new company were inferior to those he was already enjoying. Ultimately he was informed by the letter, dated 19-2-1996 that in case he failed to join new employment with Bayer Pakistan (Pvt.) Limited by 28-2-1996, his employment with the Appellants Company shall stand terminated with immediate effect. According to the respondent's case he was though constrained to accept employment of the aforesaid new company and had also submitted his joining report yet he was stopped from doing work of said company. Consequently he served a grievance notice, dated 21st April, 1996 the reply whereof being unsatisfactory he filed grievance petition in the Sindh Labour Court No,V, Karachi. By order, dated 31st August, 1998 his petition was allowed. It is from the said order of the Labour Court that the present appeal has been filed.
2. In Reply Statement the stand taken by the Appellants is that the provisions of Standing Orders Ordinance, 1968 were not applicable to the Appellants' Establishment in which the respondent was employed as the number of the workmen employed in the said Establishment had never been 20 or more. It is also averred by them that the workers employed in the said Establishment tendered the resignation on their own and on acceptance thereof their dues were paid in full and final settlement. As regards the respondent it is said that he himself did not submit his resignation and therefore, the question of returning the same did not arise. According to the Establishment, the respondent was informed of the reasons of termination of his employment but with a view to afford him opportunity of continuing employment he was given offer for further employment in another independent company viz Bayer Pharma Limited but he showed complete indifference to such offer. Since he failed to avail the opportunity of new employment his services with the Appellants Company stood terminated.
3. I have heard the arguments of the learned counsel of both the parties and have also perused the case file particularly the relevant documents available on record.
4. The first point that deserved attention in the case was whether Standing Orders Ordinance, 1968 was applicable? In other words whether there were 20 or more persons employed in the Appellants/Establishment. After considering the material on record, the lower Courts' finding on this point was obviously correct that the Appellants/Establishment failed to rebut the respondents' statement that at no time the number of employees fell short of 20 persons, so long he was in their service. Even otherwise this point was not seriously contested by the appellants learned counsel in course of arguments.
5. The only issue in controversy between the parties was the termination of respondent's services. It was contended on behalf of the respondents that termination of his services was without justification. On the other hand the stand taken by the Appellants/Establishment was that there was nothing illegal about the termination order of respondents' services. According to them as required by the law his services were terminated by written order with one month's notice., giving reasons for the termination. Thus, the necessary requirements of law were complied with. Despite that, it was submitted by the learned counsel of the Appellants, the respondent was given offer to join fresh service in another company (M/s. Bayer Pakistan (Pvt.) Limited) but somehow it was not acceptable to him.
6. Mr. S.M. Rizwan was the only witness who was produced in evidence on behalf of the Appellants/Establishment. His affidavit-in-evidence is at page 125. In course of cross-examination he made revealing admissions. According to him he was not an employee of the Appellants/Establishment and therefore, his knowledge about the case was entirely based on record. After seeing the Exhs.A/1 to A/5, the Annexures of the main petition, he admitted that all resignations and acceptance thereof were identical. He further admitted that the workers were paid three months' salary in lieu of each completed year of a service as an additional benefit. He also stated that some of the displaced workers of the Appellants/Establishment were re-employed in M/s Bayer Pakistan (Pvt.) Limited. As regards the respondents he frankly admitted that he was not paid his full and final dues including exgratia. According to him Appellants/Establishment was not prepared to pay the respondent his legal dues and ex-gratia but instead he was offered appointment with M/s Bayer Pakistan (Pvt.) Limited. It would appear that he made two inconsistent statement with regard to the respondent's willingness to serve in the new company. On one hand he stated that the reason of termination of his service was his non-accpetance of fresh appointment in the aforesaid new company. In the same breath he stated that it was correct that the respondent was ready and willing to accept the fresh appointment with the said company.
7. Thus, the disclosures made by the Appellants' own witness S.M. Rizwan left no doubt in my mind that the respondent unlike other workers who had resigned in accordance with settled formula was not paid his legal dues including ex-gratia and as such he was not treated at par with other workers. Instead he was given repeated offer of fresh appointment with another company which is accepted by the respondent would relieve the Appellants/Establishment of all their liabilities towards him. Though the respondent had expressed his initial dissatisfaction with terms and conditions of his fresh appointment which he thought were inferior to those of his previous appointment, yet obviously compelled by circumstances. He had shown his willingness to accept fresh appointment and had even submitted his Joining Report. However, he was ultimately barred from performing his duties for the new service.
8. After giving serious thought to all aspects of the case, I am of the opinion that respondent was subjected to undue discrimination, in that as in case of other workers, his resignation was not accepted nor his dues including ex-gratia were paid to him. But instead he was offered fresh appointment with some other company on totally different terms and conditions not acceptable to him. There is absolutely no explanation on record, what to say of just and reasonable explanation, why the respondent was treated differently from other workers. Was it because of his union activities? In absence of such an explanation there is every reasons to believe that he was targeted because of his hostile activities in relations to Appellants/Establishment.
9. After taking into account all the material on record and making its proper analysis, I have come to the irresistible conclusion that respondent had tendered resignation like other workers but for reason of the Appellants' dissatsfaction with his performance and activities, his resigantion was not accepted nor was he given payment of his dues including promised ex-gratia like other workers.
Accordingly it is hereby directed that the resignation tendered by the respondent shall be accepted by the Appellants/Establishment as resigantion of other workers working with him'in the same Establishment were accepted and further that he shall be paid all dues on account of gratuity. Provident Fund, unpaid 'wages and other dues if any, apart from additional benefit of ex- gratia as paid to other workers. On receipt of all such dues, the question of reinstatement of the respondent would not arise particularly when the Establishment in which he was working had admittedly been closed down and he was unwilling to accept fresh appointment in the new company referred to above.
' The judgment is announced accordingly.