DECISION ' In this appeal the order, dated 10th October, 1998 of Sindh Labour Court No,V, Karachi has been called in question whereby the grievance petition of the appellant Mst. Nasim Mehdi was dismissed. The case of the appellant briefly stated is that she was employed as Telephone Operator by KLM Royal Dutch Airlines, hereinafter referred to as the Respondent/Airlines since 1988.
Her services were terminated for the first time on 20-12-1993 but the Termination Order was set aside by the Labour Court, of course without allowing her back-benefits. She went in appeal before Sindh Labour Appellate Tribunal against the Labour Court's that part of the Order whereby back- benefits were refused. Her appeal was allowed, giving her the back-benefits.
2. Her services were however again terminated by order dated 15-2-1996, this time on the ground of her unauthorized absence from 11-12-1995, the date of Labour Court's order allowing her reinstatement in service in the first mentioned case, to 22-1-1996 when she came to join her duty.
She gave grievance notice, dated 15-2-1996, but it was not responded and as such she filed grievance petition on 31-3-1996. The respondents Airlines contested the grievance petition on various grounds. The first objection taken by them was that petition filed under section 25-A of I.R.O., 1969 read with S.0.12(3) of the Standing Orders Ordinance, 1968 was not maintainable and therefore, the Labour Court had no jurisdiction. Clarifying their said plea it was further stated in the Reply Statement that the appellant was working at their Unit situating at Club Road Karachi where less than 20 persons were employed during the preceding period of 12 consecutive months and as such Standing Orders Ordinance, 1968 was not applicable. This was also made clear to the appellant-in their letter dated 19-3-1996. Further case of the Respondents Airlines was that the appellant remained absent unauthorisedly for a period of 40 days from the date her reinstatement was allowed by Labour Court, even though the decision of the Labour Court was within her knowledge as she herself had filed appeal against the said decision with regard to back-benefits.
Accordingly she was issued show-cause notice but her reply to the said notice being unsatisfactory her services were terminated under section 19 of the West Pakistan Shops and Establishments Ordinance, 1969 vide order dated 15-2-1996. The appellant filed her Affidavit-in- Evidence and was cross-examined thereon. However, the respondents did not, file any affidavit-in- evidence. I have persued the relevant documents available on the record and also heard arguments of the learned counsel of both the parties.
2. The first point to be determined is whether grievance petition was maintainable. It was contended on behalf of the Respondent Airline that since Standing Orders Ordinance, 1968 was not applicable, the appellant could not invoke section 25-A, I.R.O., 1969 for filing her grievance petition.
The reason given by the respondent's learned counsel for inapplicability of the said Ordinance was that less than 20 workmen were employed at the Airlines Unit/Establishment situating at Club Road Karachi where the appellant had all along been working. This has been stated in the Written Reply of the Respondents Airlines. However, the appellant's version in this regard is that the plea of non- applicability of the said Ordinance, apart from being untrue, was belated and afterthought.
According to her the present Grievance Petition No,107 of 1996 is in continuation of her Grievance Petition No,236 of 1994 which was decided in her favour and she was reinstated in consequence of the decision of the Labour Court. The order of the Labour Court in the said petition having been passed on 11-12-1995 she was allowed to join her duties on 22-1-1996 but despite that she was accused illegally of unauthorized absence from the date of Labour Court's order until her resumption of duties and was given Show-Cause Notice. She added further that somehow her reply to the said notice was found unsatisfactory and therefore, her services were once again terminated by order dated 15-2-1996. According to the appellant the plea of non-applicability of the Standing Orders Ordinance, 1968 was not taken in the previous case and therefore, taking of such plea in the present case which is obviously the extension of the previous case, is not only belated but is also afterthought.
3. In support of her above version she has stated in her Affidavit-inEvidence that the Respondents'
Establishment at Town Office where she was employed and that at Airport constituted one single Establishment, because it was represented by single Collective Bargaining Agent whose Members and Officers are detailed for duty at the Airport as well as Town Office and further that salary of all the workmen posted at both the places are disbursed by way of Cheque issued by Controller of Accounts in the Town Office and that all service matters including leave, promotion, disciplinary action etc., are dealt with by single Personnel Department at the Town Office. She has also filed a list of permanent workmen (Annexure-F) which obviously shows more than 20 workmen employed in the Respondents' Establishment. Her plea hereinabove which was on oath, has gone unchallenged as laid down in the Karachi case reported as 1989 PLC 187, Employer having claimed exemption from operation of Standing Orders Ordinance on the ground that the total number of workers employed by him was always less than 20, burden of proving such fact was entirely on employer but, the employer having failed to prove total number of workmen employed by him, Labour Appellate Tribunal had rightly held that the provisions of Standing Orders Ordinance were applicable to him. Precisely the same position is in the present case. The Respondents Airline being employer have taken plea that the aforesaid Ordinance was not applicable because of shortage of workmen necessary for its application have failed to discharge this burden. Admittedly no affidavit-in-evidence has been filed in support of their plea and their stand taken in Reply Statement in this regard would also not be of any avail to them in view of the Supreme Court authority reported as PLD 1972 Supreme Court 25 wherein it was observed:-- "Written Statement cannot be exhibited in a case without the person who filed the same being examined in Court. The statements made in the Written Statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in case---"
' Applying the above principle in the present case it would be noticed that the Written Reply which was signed in this case though by Mr. Shakeel Qureshi Personnel Manager of the Airlines, yet he was not examined on oath nor his Affidavit-in-Evidence was submitted. Accordingly the Respondents' Statement in the written reply cannot be accepted in the face of the appellant's Statement given on oath in her Affidavit-in-Evidence. Apart from this, as pointed out above no such plea of non-application of Standing Orders Ordinance, 1968 was taken in the previous case of which the present case is only an extension/continuation of the same matter. I therefore, do not support the Lower Court's finding that aforesaid Ordinance was not applicable in the present case.
3. Even if the said Ordinance was inapplicable still a workman within the definition of clause (xxviii) of section 2 of the I.R.O. Was entitled to invoke section 25-A, of the said I.R.O. To bring a grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force vide Supreme Court authority reported as 1993 SCM R 672. The appellant was admittedly a workman within the meaning of said Ordinance and as such the grievance petition filed by her against her termination was legally maintainable. Consequently the findings of the Lower Court in this regard are not supported.
4. Coming to the merits of the termination order it may be pointed out that the termination order was passed on the ground that the appellant remained absent from '11-12-1995, the date of order passed by Sindh Labour Court No,V in the case relating to Grievance Petition No,236 of 1994 to 22-1- 1996 the date on which the appellant was allowed to resume her duties. Admittedly before issuing Termination. Order the Respondents Airline did not issue any formal order in the. Light of decision of the Labour Court dated 11-12-1995 requiring the appellant to join her duties. In absence of such order the appellant was not supposed to resume her duties of her own accord. The appellant has taken a correct stand in her Affidavit-in-Evidence in para 9 of her Affidavit-in-Evidence that the order of the Labour Court with regard to her reinstatement was obviously a direction addressed to the Respondents Airline who in normal circumstances should have informed the appellant as to when and what place and which roster she was to join her duties. She has further stated in para. 10 of her affidavit-in-evidence that a copy of the order of Labour Court was supplied to her advocate on 7-1-1996 whereafter she was informed of the same by her counsel on or about 15th January, 1996 and it was thereafter that she went to the Office of the Respondents on 16th January, 1996 but her Duty Report of the same date was not accepted by. The Respondents' Office on the ground that General Manager was not available, 'and in his absence the same could not be accepted or acted upon. According to her she was actually allowed to join on 22nd January, 1996 after the General Manager had returned and allowed her to join the duties. Her above statement on oath was not challenged. I have therefore, no reason to doubt or disbelieve it.
5. Admittedly she had not remained absent after the aforesaid date (i,e, 22-1-1996) of resumption of her duties. Her absence prior to that date was not without reason as has been explained above and therefore, it could not be held as her unauthorized absence. After decision of the Labour Court, the Respondents Airline had to make up their mind if they would accept the decision straightaway or would challenge the same in higher Court. Moreover it was rightly stated by the appellant in her Affidavit-in-Evidence that the Labour Court's decision was just a direction to the respondents and therefore unless they complied with the said direction by issuing formal order at their level the appellant could not join duties automatically. For the foregoing reasons the order dated 15-2-1996 was unlawful and without any justification. As such it is hereby set aside.
' The upshot of the above discussion is that the appeal filed by the appellant Miss Nasim Mehdi is accepted and the order of Labour Court, dated 10th January, 1998 is set aside.