2003 PLP 330 (PLC)

Mr. Muhammad Ibrahir Ameer Muhammad SSW-II 1-12-1992 2 457 Mr. Ali Muhammad Ismail SSW-II 1-12-1992 3 475 Mr. Anwar Umer SSW-II 1-12-1993 4 476 Mr. Abdul Sanar Allana Ahmed SSW-II 1-12-1993 5 503 Mr. Muhammad Alam Muhammad Umer SSW-II 2-05-1994 1 462 Mrs. Tamseel Ahmed Dawoodi S. Muhammad Abou Dawood SSW-II 1-12-1992 2 463 Mr. Zulfiqar Siddiqui Nizamuddin Siddiqui SSW-II 1-12-1992 1 473 Mr. Muhammad Salman Shabbir Hassan SSW-II 1-12-1992 In addition to above reliance is made on the agreement dated 13-12-1999 which requires to be examined as a whole so as to ascertain the circumstances which led to the retrenchment. The agreement reads as following:-- Neither the table of re-organization nor the agreement referred to hereinabove provide any justification for reduction of workers as the same are silent about the actual requirement of the workers in the different departments. The appellant was required to prove that the quantum of works in each department justified workers only as per table and the surplus staff/workers were to be removed but no such evidence can be traced on record. It is an admitted fact that the company wherein the applicants were employed was one of the four companies managed by one and same group and the appointment letter issued to the applicants specifically stated that his' services were transferable to any company of the group thereby meaning that all the companies were part and parcel of one and same establishment, the counsel for respondent was of the view that in such circumstances the surplus staff at first place was required to be adjusted in the other companies of the group while in case there was no room for adjustment then retrenchment was required to be made taking into consideration the seniority of the workers employed with the group and without any evidence that the applicant could not be adjusted in the other companies and that they were junior most in all the companies of the group their removal cannot be considered to be in accordance with Standing Order 13 of Industrial and Commercial Employment (Standing Orders) Ordinance 1968. The learned counsel for the appellant controverting the contention so raised by the counsel for respondents came up with plea, that as the applicants were appointed in Balochistan Engineering Works Ltd., therefore, as a matter of right they could not claim transfer to any other company of the group, support of said contention reliance was placed on the judgment passed by Labour Appellate Tribunal Punjab in case titled as M. Siddique Zahid v. Pakistan Environmental Planning and Architectural Consultants Ltd. 1983 PLC 302, wherein following observations were recorded while dismissing the appeal:-- "The appellant was recruited as office assistant in the respondent establishment on 13-3-1976. He was on 28-5-1979 made to officiate as office secretary drawing pay of his substantive post of office assistant. He was promoted as office superintendent on 10-7-1979 in grade No.6. He was transferred to Karachi on 3-9-1980 on the same post. By way of re-organization and economy certain posts including the post of office superintendent were abolished resulting in the termination of the services of the appellant. This actuated the appellant to come to the Labour Court. The other posts which were retrenched were the four posts of office assistants. The post of office assistant previously held by the appellant was not filled in after his promotion as office superintendent and remained vacant and was abolished. This is nobody's case that any one post of office assistants was retrained. If any one of those posts had been retained and the appellant had been the senior most office assistant he could have claimed to be reverted as office assistant. His contention there were two other posts and he could have been adjusted against any one of them is not tenable. He did not hold any such post so has no right to be posted against any one of them. It was the discretion of the respondent to adjust him on any other post which he did hold but he cannot as of right claim it. If any employee has been promoted from a lower post duly then he is entitled to be reverted to the said post when the post of which he was promoted is abolished." The judgment referred to hereinabove is not applicable in the present case as the facts and circumstances of the case in hand are altogether different from the case referred to hereinabove. In the case in hand the services of applicants were transferable to the other companies of the group and there is nothing on the record to show that there was no room in the other companies to adjust the applicants. Besides if even the contention of the learned counsel is accepted that applicants had no right to be adjusted in the other companies of the group then too, I am unable to persuade myself to accept that the table showing department-wise re-organization justified the retrenchment/removal of the applicants without any proof with regard to actual requirement of the workers in different departments of the company. Now averting to the agreement dated 13-12-1999 which on bare perusal show that the same was made on submissi6n of Charter of Demand by the union. By means of clause 1 to 9 of the agreement fresh financial benefits were extended to the office-bearers and workers whereas under clause 15 previous benefits were also maintained. However, clause 16 stated about financial crises and economic recession effecting the factory in result of which 42 workers were to be relieved under the scheme of golden handshake. Clause 1 to 9 the agreement does not reflect any financial crises or economic recession being faced by the company/factory, the same rather reflect that company had resources to increase financial benefits of its workers, whereas, clause 16 while being in clear contradiction to clauses 1 to 9 also does not state the reason for financial crises and economic recession calling for retrenchment of the workers. Besides to prove the fact that the company was facing financial crises and economic recession the company was required to place on record evidence which they failed. Thus in view of clause 1 to 9 of the agreement I am unable to agree with the appellant that the company was facing financial crises and economic recession justifying retrenchment/removal of the applicants from service. I am unable to withhold myself to observe that the CBA union entered into agreement with the management and financial benefits were obtained for the office-bearers union, while they also agreed for removal of 42 workers on the ground of financial crises and economic recession being faced by the establishment. As already observed no evidence is available to show that company/establishment was facing any financial crises, therefore, CBA union is found to have acted as per wishes of the management by obtaining personal benefits at the cost of employment of 42 workers whereas the prime duty of CBA union was to safeguard the terms and conditions of workmen and to make all efforts for their welfare and betterment but not to deprive them of their basic right of employment. In case District Manager Karachi Transport Corporation v. Ghulam Younis and others 1992 PLC 761 the Labour Appellate Tribunal Sindh was of similar view, as it was observed that:-- "It is an admitted fact, that in a settlement arrived at between K.T.C. and C.B.A. on 30th May, 1988, the retirement age of K.T.C. workers was fixed at 58 years. The C.B.A. has no power to enter into any agreement with the management by which rights already conferred upon the workman could be taken away to their disadvantage. Even otherwise the agreement reached between the C.B.A. and the K.T.C. in 1988, could have prospective application, but cannot adversely affect the terms and conditions of service of the workman who was already in service, who would be governed by the terms and conditions of service existing before such settlement if they are more favourable. The Collective Bargaining Agent is appointed under section 22 of the Industrial Relations Ordinance, 1969, with the main purpose to undertake collective bargaining with the employer on matters connected with the employment, non-employment, terms of employment or conditions of work of the workmen. The Industrial Relations Ordinance is welfare legislation for the purpose of welfare and betterment of the working conditions of the workmen. The purpose of institution of Collective Bargaining Agent is to bargain for the improvement of the terms and conditions of workmen and not to be barter away or agree to the diminishing of the rights or privileges already conferred upon the workmen under the Rules or the Settlement. The Collective Bargaining Agent did not act in accordance with the spirit of its appointment as C.B.A. while agreeing to reduce the age limit of retirement from 60 years to 58 years, which under no stretch of imagination could be considered to be in the interest of the workman. It is also against the spirit of section 4 of the Standing Orders Ordinance, 1968. Section 4, no doubt specifically prohibits the collective agreement from taking away the benefits available to the workman under any existing Rules of Service. It may also be pointed that under Standing Order 2-A, every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service. If in an establishment, there are Rules of service including the rule with regard to age of retirement, such Rules would be considered as terms and conditions of service of the workman at the time of appointment and such terms and conditions would be protected under section 4 of the Standing Orders Ordinance." Keeping in view the facts of the case in hand and the terms of the agreement arrived at between CBA Union and appellant, I have no hesitation to hold that CBA Union failed to serve its purpose in case of applicants, it rather acted adverse to their interest in such view of the matter the agreement to the extent of clause 16 cannot be termed to be valid. Once again averting to the agreement dated 13-12-1999 it is observed that as per clause 13 of the same four of the temporary workers were agreed to be confirmed. This while contradicts the plea of the appellant that retrenchment was made in order to get rid of surplus workers; also negates the financial crises/Economic recession calling for retrenchment. Removal of permanent worker and at the same time confirmation of temporary, worker on the face of it was against the very spirit of Standing Order 13 of Industrial and Commercial Employment (Standing Orders) Ordinance 1968 as by no stretch imagination a temporary employee can be considered to be having preferential right to a permanent employee. In addition to above making services of temporary employees permanent contradict the very reason for retrenchment i.e. over employment. In the stated circumstances, the only reason left for removal of applicants was mala fide on the part of management, therefore, I have no hesitation to hold that the dismissal order issued in such circumstances was liable to be set aside. The order of the Labour Court, therefore, is found to be just and proper reflecting no infirmity, illegality, misappreciation or non-appreciation of evidence. Thus appeals having no merits are dismissed with no orders as costs. H.B.T./172/Q Appeals dismissed.