DECISION ' Aggrieved by the order dated 26-11-1999 of Sindh Labour Court No,VI Hyderabad, Zeal Pak Cement Factory, Hyderabad, hereinafter referred to as Appellant Factory has filed this appeal. The factual background of this case may briefly be stated as fallows. The respondent Ghulam Habib entered service of the Appellant Factory as helper on 29th June, 1991. He performed his duties almost to the satisfaction of his superiors yet he was illegally removed from service on 29th October, 1994. His grievance petition filed against the said removal was allowed and he was directed to be reinstated with payment of 50% back benefits. This order of the Lower Court was upheld in the appeal filed by the Appellant Factory. Despite that the order of respondents' reinstatement was complied with only after he filed complaint against the Appellant Factory. After his reinstatement he was once again removed from service by written order of termination dated 6th June, 1996, after a little over one month from the date of the reinstatement i,e, 12th May, 1996, without any explicit reason.
Accordingly grievance notice was sent to the Appellant Management but without any result. Left with no option, the respondent was constrained to file grievance petition on 27th August, 1996 which gave rise to the present case.
2. In the Written Statement filed by the Appellant Factory they took a plea that the respondent was found surplus and therefore, his services were terminated on account of bona fide retrenchment.
Moreover, he was a temporary workman and as such his grievance petition was not competent.
3. The respondent filed his Affidavit-in-Evidence and was cross-examined by the Advocate of the Appellant Factory.. Similarly Affidavit-inEvidence of Syed Mushtaq Ali Shah Bukhari was filed for the Appellant Factory and he too was cross-examined by the Representative of the respondent.
4. The points for decision are: firstly, whether the respondent was a permanent workman and accordingly, whether his removal from service was illegal. It is an admitted position that the respondent Ghulam Habib joined service of the Appellant Factory as far back as 29th June, 1991 as helper. In his Affidavit-in-Evidence as well as in his grievance petition he has claimed to be a permanent workman. Of course there is no written Appointment Order support his such claim. But it has come on record that once before the respondent was removed from service on the plea that his appointment was made on contract basis. Despite that plea his grievance petition filed against his previous removal was accepted and he was directed, to be reinstated with payment of 50% back-benefits. The said order of the Lower Court was upheld by the Labour Appellate Tribunal in its judgment dated 2-4-1996. Both the Labour Court and Labour Appellate Tribunal had recognized the status of the respondent to be of permanent workman. However, the respondent was reinstated in service only after complaint was filed against the Appellant Factory. Here the question would arise if the gap between the first termination of respondent's services and his subsequent reinstatement was to be treated as break in his service or alternatively it would be counted as continuous service. The learned counsel for the Appellant Factory resisted in his arguments that not only the respondent's appointment was on contract basis and hence temporary but also due to the aforesaid gap in his service he could not be held to have continued in service from the date of his initial appointment in 1991. This argument has not impressed me, I am rather inclined to agree with the view expressed by the respondent's learned counsel that the respondent was continuously in service of the Appellant Factory right from the date of his initial appointment until termination of his service for the second time. This is because the respondent had successfully challenged his first removal from service and he was reinstated in pursuance of the order of the Labour Appellate Tribunal. As such the gap during which he was out of service could not be held a break in his service. Consequently the respondent was in service of the Appellant Factory continuously from the date of his initial appointment i,e, 29th June, 1991 until letter of termination of his services dated 6th June, 1996. The Appellant Management has not been able to prove that for all the years the respondent was in their service was a temporary contract employee. On the contrary the aforesaid termination order shows that respondent was allowed one month's salary in lieu of notice which is admissible only to permanent employees. The respondent's success in his grievance petition against his first removal from service also indicates that he was not a temporary employee. I am therefore, of the view that the respondent being in Appellant Factory's service continuously for about 5 years, coupled with his success in litigation filed against his first removal from service and lastly allowing him one month's salary in lieu of notice on his termination from service for the second time are the factors which prove that he was not a temporary employee of the Appellant Factory. ,5. As regards second point whether his removal was illegal there is no doubt that the parties have taken inconsistent stands. On one hand the case of the Appellant Factory as stated in the letter of termination of respondent's services referred to above is that as a part of the process of reorganization of the Factory signed at retrenching employee found surplus to the requirement of The factory, the respondent's services were terminated for the aforesaid reason. On the other hand the stand taken by the respondent is that though all the permanent employees who were retrenched have been reinstated yet he alone has been made the target and has not been reinstated. As such his plea is that his termination was mala fide. In this connection reference may be made to cross-examination of Syed Mushtaq Ali Shah Bukhari, the notified Factory Manager of the Appellant Factory. He has admitted in course of his cross-examination:-- "It is correct that some other labourers were also terminated from service at the time of termination of the applicant. The process of termination of services of the applicant and other workers started in the month of March, 1996. About 435 workers were terminated from services on the basis of policy of reorganisation---.
' It is correct that all the workers of the factory were terminated except Chowkidars. All workers who were terminated from service were reinstated again on 12th February, 1998. The applicant could not be reinstated in service as he was terminated from service prior to execution of Agreement entered into with the management Only permanent workers 435 and 451 were terminated and subsequently reinstated."
In view of the above admissions made by the responsible Officer of the Appellant Factory it has become crystal clear that almost all the retrenched workers were reinstated in service excepting the respondents. The reasons given by the above witness for not reinstating him were far from convincing. It seems the Factory Management was not happy with the respondent right from his first grievance petition that he had filed against his first removal from service. The appellant's annoyance became severe obviously after his grievances petition was allowed and he was directed to be reinstated. The annoyance of the Appellant Management, was clear from the fact that despite the order of respondent's reinstatement was upheld at the level of. Labour Appellate Tribunal he was not being reinstated and it was only after he filed complaint against the Appellant Management that he was reinstated in service. Taking all these factors into consideration. I am convinced that though other workers who were retrenched alongwith respondent were taken back in service he was singled out and was not reinstated in service obviously for mala fide reasons.
' For the foregoing reasons the order of Labour Court is maintained and the appeal filed against the said order is dismissed.