1990 PLP 304 (PLC)

One month's salary in lieu of termination notice has already been deposited in your Salary Bank Account, together with all admissible dues, as detailed below:‑‑ (a) Salary from 1‑7‑1980 to 28‑7‑1986 Rs.2,137.00 (b) One month's salary in lieu of notice. Rs.2,137.00 (c) Encashment of unavailed leave etc. Rs.4,497.00 (d) Gratuity as per law Rs.1,406.00 (e) Provident Fund including Company Contribution with interest. Rs.1,263.00 Total Rs.11,440.00 The Head Office appreciating your services, has also decided to pay in addition to your above dues, a sum equivalent to your three basic salaries as Ex‑Gratia, which has been credited to your account. You are advised to hand over all the Company property to the Personal/Admin. Officer, together with Airport Entry Pass, after which a service certificate will be issued to you. Yours truly, Sd/

Ali Al-Umeyri, Manager Pakistan. The letters of retrenchment of others are also in similar terms except that there is some variation in amount of figures.

7. Certain facts which are either admitted or which are apparent on the record and which have been discussed in detail by the learned Labour Court I need not discuss further. One of these facts is that the amounts mentioned in the above retrenchment letters were deposited by the respondents in the accounts of the appellants. This fact has been stated by the respondents in their written statement as well as by their witness in his affidavit‑in‑evidence who also tried to prove it by producing some bank statement which is not properly proved strictly in accordance with Law of Evidence nor is it properly certified as required under the Bankers' Books Evidence Act. However, averment of the respondents is not properly disproved by the appellants by producing their statement of account or producing any positive proof to show that these amounts were, not deposited in their accounts or that they have not withdrawn the same though it is admitted that as per authorised practice the respondents used to deposit the dues of appellants in their authorised account of the bank. Under the circumstances at the most it can be said that for this reason alone the appellants cannot be debarred from persuing grievance applications because when two versions are possible on equally balanced evidence the Labour Court or Tribunal should draw inference in favour of workman.

8. It is not disputed that the number of flights of the respondents had been reduced from 27 (lights to 17 flights per week. It is also admitted that many a time the appellants used to sit idle at the Airport without work. It is also not disputed that the respondents have rented out their Airport Service with the Shaheen Airport Services. Admittedly services of 46 employees were terminated because of this retrenchment but only seven have riled these grievance petitions. Out of these seven persons admittedly only one is the office‑bearer of the Union.

9. Keeping this background and admitted and apparent facts in view it is to be seen whether this retrenchment was due to genuine reorganisation or loss suffered by the respondents as alleged by them or was mala fide as alleged by the appellants.

10. Mr. M.L. Shahani contends that neither in the pleadings nor in the evidence nor in the retrenchment order the respondents have pleaded that they have suffered any loss because of this shortfall in the number of flights. He also submitted that no statement of account has been filed to show that what was the pay‑load and passenger‑load when number of flights was 27 and when it was reduced to 17 flights. He further submitted that the plea of re‑organisation has also not been raised by the respondents anywhere. On the other hand, Mr. Nizam Ali Khan submitted that the loss as well as reorganization can be inferred from the facts which have been brought on the record. It would be natural that the income derived from 17 flights would be lesser than that could be derived from 27 flights and there is change of organization when instead of organising the Airport Services themselves the respondents handed over the organization to the Shaheen Airport Services. Word "Organize" has been defined in Black's Law Dictionary to mean: "To establish; to systematize; to put into working order; to arrange in order for the normal exercise of its appropriate functions." Word "Reorganization" has been defined in the same dictionary to mean: "Act or process of organizing again or anew." Thus the respondents had reorganized their Airport Services at the Airport afresh by handing over these services to the Shaheen Airport Services instead of performing the services through their own employees.

11. Mr. Nizam Ali Khan has relied upon the case of Messrs Emesco Industries Ltd. v. S. Irfan Ahmed 1983 P L C 981, decided by this Tribunal when this Tribunal after discussing extensive case law came to the conclusion that termination of services of workers simpliciter on account of reorganization including giving of contract of work to independent contractor was permissible provided such action was taken bona fide and not as a cloak to get rid of workers or to crush genuine union activities provided termination of services is not for reasons of misconduct and explicitly state reasons and in case of permanent worker either give one month's notice or one month's pay in lieu of notice.

12. In the case of Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court, Lahore 1905 P L C 216, Hon'ble Supreme Court of Pakistan observed that: "Discharge of redundant workers after notice as a measure of reorganization carried out for bona fide purpose without any taint of victimisation does not attract control of Industrial Court under section 30 of the Industrial Disputes Ordinance, 1959."

13. The main contention of the appellants is that the respondents have given the Airport Services to the Shaheen Airport Services in order to curb the union activities. As pointed out above only one of the appellants is office‑bearer of the union. Nothing has come on the record that after the giving out of the services on contract Union has been dissolved or union activities have been stopped. No doubt it was pointed out, that after the termination of services of the appellants the services of the President of the Union were also terminated but he has been reinstated by the learned Labour Court and appeal against the reinstatement has also been rejected by this Tribunal. These two instances cannot be considered as evidence of curbing the union activities. It has come on record that in all the respondents had 137 employees out of which 93 were working at the Airport out of whom services of only 46 employees were terminated and out of whom only seven employees have filed grievance petitions. These figures do not prima facie show any act of mala fides or victimisation. Even the letter of retrenchment shows that the respondents had arranged with the contractor to engage the retrenched employees while admittedly the appellants did not contact the contractor. Though the terms and conditions of services had not been settled by the respondents but still when the appellants had not contacted the contractor it could not be said that the terms and conditions would have been less favourable. A clear victimisation has to be specifically proved and such fact that one of the appellant is office- bearer of trade union would not raise any presumption of victimisation.

14. Keeping in view all these facts I do not find any merit in these appeals which are, accordingly, dismissed. A.E./1437/Lb. S Appeals dismissed.