1981 PLP 645 (PLC(CS))

In view of above you have become surplus to our requirement hence your services are hereby terminated with immediate effect. You are directed to collect your legal dues, if any, from the Accounts Department including one month's notice pay in lieu of one month notice during working hours. For Noor Silk Mills Ltd. (Sd.) (Manager)."

2. The respondent challenged the termination of his services before the Third Labour Court on the grounds that he was the senior‑most Colour Man employed in the appellant‑Company and that his services had been terminated because he had refused to give up membership of and support to the Noor Silk Textile Mills Labour Union. The learned Labour Court took the view that the discharge of the respondent was illegal and actuated by mala fide intentions and that he had been victi mized. It, accordingly, directed the appellant‑Company to re‑instate the respondent with full back benefits. The appellant‑Company preferred an appeal against the said decision which was heard by my learned prede cessor alongwith eight other appeals, in all of which the common issue raised was whether its view of the provisions of subsection (6) of sec tion 25‑A, I. R. O. a grievance petition was required to be filed within two months of the grievance having accrued. My learned predecessor by his order, dated 29th March, 1977 held that during the period that the said subsection was on the statute book, grievance petitions had to be filed within the time specified in and in accordance with the provisions of the said subsection and remanded the case to the learned Labour Court for disposal on the basis of finding with regard to the question of condona tion of delay. The learned Labour Court condoned the delay in the filing of the grievance petition by the respondent on the basis of the decision of this Tribunal in the case of Messrs Liberty Mills v. Muhammad Zaman and others, decided on 6th November, 1979. Both the parties preferred appeals against the‑ said decision to this Tribunal. The two appeals were disposed of by order, dated 27th May, 1980. By this order the case was remanded by a second time to the learned Labour Court for giving a finding on the merits of the case as the earlier decision of the learned Labour Court had been wholly set aside by my learned predecessor, by his order dated 2nd August, 1977. On second remand, the then learned Presiding Officer of the third Labour Court reaffirmed the view taken by his learned Predecessor and held that the termination of service of the respondent workman was illegal and was actuated with mala fade intention and accordingly, directed the appellant‑Company to re instate him with full back benefits. The appellant‑Company has now come up in appeal for the third time to this Tribunal.

3. I have heard Mr. A, Hafiz the learned Representative for the appellant‑Company and Mr. S. P. Lodhi, who appeared for the respon dent‑Workman. Mr. Hafiz submitted that the respondent was the only sole Colour Man in the, Dyeing Department of the appellant‑Company and as the said Department was closed down the services of the respon dent bad to be terminated. He admitted that there are Colour Men employed in the Printing Department of the appellant‑Company but sub mitted that the work of these Colour Men is wholly different from that of the colour men in the Dyeing Department, which had been closed down. He strongly denied that the action against the respondent had been actuated by mala fide intention or amounted to victimization.

4. In order to correctly appreciate the contending contentions of the representatives of the parties, it may be pointed out that it has been admitted by the respondent‑Company's witness and General Supervisor, Zakaria Mootiwala, that the respondent had been in the employment of the appellant‑Company since 1st January, 1955 and that he had been working as colour man at least since, 1966, though he was not able to give the exact date of his appointment to that post. It is also clear from his evidence that the colour men in the Printing Department were appointed some years later, in and from 1971 to 1976. Another circumstance of signifi cance which has to be taken into consideration is that on 18th December, 1975 the respondent was served with a charge‑sheet alleging that he does not report for his duties in time in spite of repeatedly being reminded and required to do so. The second show‑cause notice in respect of this charge was given to the respondent on 3rd January, 1976 and a reminder letter, dated 21st May, 1976 was sent to the respondent requiring him to submit his reply to the second show‑cause notice within three days. The res pondent, by his letter dated 29th May, 1976 took the plea that on 4th January, 1976 be was taken to Seth Haji Noor Muhammad and there was reconciliation affected in the presence of Master Razzaq, Head Jobber, Ayub, Technical Manager, Dossani and Director Muhammad Amin. The respondent, accordingly, expressed surprise at the proceed ings being resurrected after the lapse of so much time and levelled the following accusations against the appellant‑Company :‑ "That it is why that there was no proceeding after 4th January, 1976 but now since the repression and supression by your Management is in full swing to crush the Trade Union and as I have not given up the Union but actively participating in the Union activi ties, you have come out with this letter with mala fide intentions. This is undeniable fact." The above letter, as per endorsement thereon, appears to have been received by the appellant‑Company on 1st June, 1979 but neither a reply to the said letter was given by the appellant‑Company nor any further proceed ings in respect of the charge‑sheet given to the respondent appears to have been taken. However, some 2 months later the respondent was discharged from service on the ground that due to re‑organization the Management had decided to abolish the post of colour man.

5. The discharge order, in the light of the above circumstances, seems to suggest that the appellant‑Company perhaps finding that it was unable to proceed against the respondent on the basis of the charge‑sheets, dated 18th December, 1975 decided to terminate his services on the plea of re‑organization. It has, therefore, to be examined whether the plea of re‑organization is bona fide or not. A perusal of the discharge order suggest that the re‑organization was confined only to abolishing the post of Colour Man in Dyeing Department. In the reply statement submitted by the appellant‑Company to the grievance petition of the respondent neither any plea of re‑organization has been taken nor any details of the alleged re‑organization have been given. In fact, even the appellant Company's witness, Zikaria Mootiwala, in his evidence before the learned Labour Court admitted that since 1976 both the Dyeing and Printing Departments are in operation. Although this witness denied the sugges tion that the work in the Dyeing Departments had not been reduced he was unable to give any details of the quantum of work in the Dyeing Department as he produced only a combined statement of work for both Dyeing and Printing Departments. There is, thus, no tangible evidence in support of the contention of the appellant‑Company that the work in the Dyeing Department had been so reduced as to justify the abolition of the post of the sole colour man in that Department and if so from what date. When this circumstance is taken in conjunction with the failure on the part of the appellant‑Company to follow up action on the charge‑sheet, dated 18th December, 1977, served upon the respondent, and the issuance of the letter of termination of services of the respondent, only 2 months after the respondent had not only taken up the plea that the matter regarding his late coming had been settled and charging the appel lant‑Company with repression and supression Trade Union activities in the appellant‑Company and pressurising him to give up his connections with the Labour Union, it is difficult to resist the conclusion that the termination of services of the respondent was not due to any bona fide or gennine re‑organization but was motivated by a desire any how to remove the respondent from service, perhaps on account of his Trade Union activities.

6. It is no doubt the prerogative of the Management to close down a Department or a section but if such closure is motivated by an improper or wrongful intention to victimize certain workmen, who are for some exraneous reasons not liked by the Management, the alleged re‑organization cannot be considered genuine and the discharge of a workman on the score of such alleged re‑organization cannot be upheld. It has been' claimed by the respondent that there are still colour men employed in the appellant‑Company and that these colour men are employed in the Print ing Department. According to the witness Agha Muhammad Akbar, Senior Development Officer in the Textile Industries Research a Develop ment Centre run by the Ministry of Industries, who was examined as a Court witness by this Tribunal and who had inspected the appellant‑Mills on the direction of this Tribunal, the Dyeing Department in the appellant Mills had been closed down since long and only the Printing Department was functioning in the Mills. Furthermore, according to this witness the work of colour man in the Printing Department is wholly different from that of colour man in the Dyeing Department and as opined by him a colour man in the Dying Department would not be able to work effectively as colour man in the Printing Department, as the nature of the two jobs are entirely different. As such, despite the fact that colour men in the Printing Department of the appellant‑Mills may‑ be junior to the respon dent in length of service, it would be neither proper nor appropriate to direct the appellant‑Company to employ him in that Department. Furthermore, since the Dyeing Department in the appellant‑Mills has been closed down, the respondent cannot be employed in that Department. In tile circttmstance4, tile only appropriate order that can be made as to hold that the termination of services of the respondent, by the letter dated 19th August, 1976 is improper, and to award him back benefits amounting, to Rs. 22,458 deposited by the appellant‑Company at the time of the admission of this appeal. Order accordingly,