1984 PLP 130 (PLC)

4. As regards the first contention, the evidence available on the record would show that there is only a solitary word of the appellants themselves in support of their case to the effect that the work as alleged by the respondents in fact was not complete when their services were terminated. On the other hand, the respondents‑ have examined Mr. S. M. Safdar, the Senior Adminis trative Officer to the effect that the work with regard to the Hot Strip Mills Project were withdrawn and that of Earthwork contract was ‑ complete and that there remained no other option with the respondents except to terminate the services of the appellants alongwith many others in order to meet with the situation. His sole testimony in that respect has hardly been effectively challenged in his cross‑examination in that respect. Apart from it, there is a documentary evidence to that effect produced vide Annexure C to show that the Pakistan Steel had decided to take back balance work of civil buildings and Hot Strip Mills and that they had ceased all activities therein and it was decided that there was no justification of keeping staff and workers employed on these projects and, therefore, the action to retrench the surplus staff and workers be taken. The orders of termination of services served on the four appellants which axe on the record would also clearly show, that the work releating to the Hot Strip Mills Project was withdrawn, whereas the Earth work was complete and, therefore, the orders of termina tion of the appellants along with other employees in all about more than 200 had become unavoidable. All this oral and documentary evidence apart from the fact that it has not been challenged has not been rebutted by any evidence produced by the appellants except their solitary word. The fact that the action of termination of services of the appellants was the result of the withdrawal and completion of the work at the Site is also supported by the fact that one of the appellants, Muhammad Yaqoob, was. admittedly served with an order to report and resume at Machi Goth possibly in continuity of his previous service but he did not resume. There is also no dispute that all the four appellants by an identical order, dated 3rd May, 1982, were served with orders of appointment in a new Project awarded to the respondent but they declined to resume. Had the work not been with drawn in the Hot Strip Mills Project and the work was not complete in Earth work contract, there was no sense in serving the orders of fresh appointment on the appellants, specially in the case of appellant, Muhammad Yaqoob, who was ordered to report at Machi Goth in continuity of his previous service. Accordingly, there is no doubt that the work that was undert4gn and for which the services of the appellants were employed had been withdrawn/completed, and the finding of the learned Labour Court in that respect does not call for interference.

5. As regards the second contention raised on behalf of the appellants, it would be advantageous to reproduce section 8 (A),

1. R. O., which reads as follows:‑ "(A)-Transfer, etc. of officer of trade union during pendency of application for registration‑Save with the prior permission of the Registrar, no officer of trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of the officers to the employer in writing." ‑ Though the appellants have failed to adduce a sufficient and satisfactory evidence in support of their case to the effect that the union was formed and the appellants were elected the office‑bearers, I find an admission of Mr. S. M. Safdar, the witness examined on behalf of the respondents to the effect that the respondent had received an intimation regarding the formation of N. C. L. Employees Union at Project on 10th December, 1981 Assuming the union was formed and the appellants were elected its office- bearers, and the requisite intimation was sent to the respondent during the pendency of the application for registration with the Registrar of Trade Unions, within the meaning of provisions of section 8 (A); I.R.O., the pro visions of this section would not operate a bar to action of termination of services of the appellants for the simple reason that the impugned action taken would tantamount to termination simplicitor and not by way of punishment as is envisaged by the provisions of section 8 (A). The learned counsel, for the respondent in that respect has relied on the decisions of this Tribunal reported in cases Messrs Corning Glass Pakistan Ltd v. Muhammad Hanif and another (1981 P L .C 361), Utility Stores Corporation of Pakistan Ltd v. Mahboob Nurul Amin and 8 others. (1982 P L C 179) and Zaheeruddin and another v. Adam Silk Afills Ltd. (1982 P L C 927). Though these decisions are based on the provisions of section 47, I.R.O., I find that the provisions of that section are closely related to the provisions of section 8 (A) as both the provisions deal with the actions taken by way of punishment. The key words "otherwise punish" in section 47 are also the key words, in section 8 (A) and clearly indicate the intention of the Legislature that it is only when it is proposed to terminate the services of the workman by way of punishment whether the termination be called discharge or dis missal, the permission from the appropriate authority is required. It would, therefore, appear that since section 8‑A is couched in identical words of the provisions of section 47, the above‑mentioned decisions relied on by the learned counsel for the respondent would be applicable in the facts and circumstances of the cases arising out of the present appeals for the reason that they involve the same principle, as the bar created by both the pro visions of sections 47 and 8 (A), I.R.O., is not absolute and would operate only in cases of termination of services by way of punishment and not in case of termination simplicitor as in the case of the present appellants whose services have been terminated on account of retrenchment due to re‑organisation, redundancy .and completion of work. It would be advantageous to refer to the following observations from the last reported decision which would apply exactly to the circumstances of the present cases as well; "

5. It was not disputed by Mr. Kamal Mansur Alam, the learned counsel for the respondent establishment, that industrial dispute No. 19/77, between the respondent establishment and its C.B.A. was pending adjudication before the learned Labour Court at the relevant time. His contention, however, was that section 47, I.R.O. bars the discharge or dismissal of the workmen during the pendency of an industrial dispute, without the permission of the appropriate authority only if the discharge or dismissal was by way of punishment, but it did not prohibit the termination simplicitor of services of a workman on account of retrenchment, reorganization etc., if such retrench ment or reorganization or other ground for termination of services was justified. On the other hand, it was strongly urged by Mr. Ashraf Rizvi; the learned counsel for the appellants that section 47, I.R.O. is a complete bar to the termination of services. in any form, of a workman during the pendency of an industrial dispute, without the requisite permission of the Labour Court. In order to appreciate the respective contentions of the 2 learned counsel, it would be appropriate to set forth the relevant provisions of section 47, I.R.O. and to examine the connotation of the key words used therein. The relevant provision in section 47, I.R.O. reads as follows 47 .. . . .. nor shall be- (a) save with the permission of the conciliator while any conciliation proceedings are pending or (b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.

6. It was contended by Mr. Kamal Mansur Alain, that the words "otherwise punish" are the key words in this provision and clearly indicate the intention of the Legislature that it is only when it is proposed to terminate the‑services of the workman by way of punish ment whether the termination be called discharge or dismissal, that permission from the appropriate authority is required. It may be pointed out that the definition of workman contained in section 2 of the

1. R. O. specifically mentions dismissal, discharge, retrenchment, lay off or otherwise removal of a workman. The fact that the Legislature has specifically mentioned certain modes of termination of service in section 47, and has refrained from mentioning the other modes of termination of service is relevant as indicating the intention of the Legislature. This intention is further made clear from the words "otherwise punish", which indicate that the Legislature had in view only cases or types of removal which were by way of punish ment. "Dismissal" according to Standing Order 15, is the maximum punishment which can be awarded to a workman under the said order and stringent conditions have been laid down for the award of such punishment. No doubt discharge is not a punishment prescribed in Standing Order 15, but it is frequently needed when punishing a workman guilty of misconduct. In the Armed Forces, there is both an honourable discharge as well as dishonourable discharge' the former being equated to dismissal from service. One of the meanings of word "discharge", according to Ballentine's Law Dictionary is "the dismissal of an employee". In the context in which the word "discharge" has been used in section 47,

1. R. O., it appears that it has been used in this sense i.e. termination of services by way of punishment."

6. Thus it would be clear, that since there is no substantial evidence on the record to the effect that the respondents violated the provisions of section 13 of West Pakistan (Standing Orders) Ordinance, inasmuch as the appellants were the last persons to have been removed. I find that the action of their termination of services on account of retrenchment was not barred by the operation of the provisions of section 8 (A) as the action was of termination simplicitor. Accordingly, I do not find that the action taken was illegal. As regards mala fides, no tangible evidence has been adduced by the appellants to that effect and no specific instances of mala fides have been cited. On the contrary, as already stated by me above, the appellants were called upon with the fresh appointment orders in the new Project assigned to the respondent soon after their services were terminated, in fact the appellant, Muhammad Yaqoob was also given the order of re‑appoint ment on the very date of his services were terminated to join at Machi Goth immediately, which would have served as an order of his continuous service for him. What I further find that the appellants are not the workmen employees whose services alone were terminated. The appellants themselves in their evidence have admitted‑ that so much of other surplus staff was also retrenched and it would be gathered from their respective affidavits adduced in their evidence that possibly there could be more than 200 employees in all which were actually retrenched. In the circumstances, it would not be appropriate to attribute mala fides to the respondents in removing the appellants which action was clearly by way of retrenchment on account of reorganization, redundancy and completion of work. Accord ingly, there is no reliable evidence or even the circumstances on the record to say that the action taken by the respondent was in any way mala fide. I would, therefore, find that the action of termination of services of the appellants was neither illegal nor mala fide.

7. As regards the third contention raised on behalf of the appellants by their learned counsel, it is clear that for the purposes of the case of the appellants, as defined in section 2 (c) (iii) of West Pakistan Standing Orders Ordinance, `employer' means and includes any. person responsible to the owner of the supervision and control of such establishment. The letter, dated 15th December, 1981, produced by. Mr. S. M. Safdar, Senior Administrative Officer of the respondents would clearly disclose that the action of retrenchment of the surplus staff was ordered at the Directorial level and in consequence of it the appellants' services were terminated by way of retrenchment vide the identical orders, dated 20th December, 1981, signed by Mr. S. M. Safdar, Acting Manager (Personnel and Adminis tration). There is .no other evidence adduced on behalf of the appellants to the effect that any other authority was competent to pass and sign the orders of termination of services of the appellants. In the circumstances, there is no substance in the contention to the effect that the termination orders were not signed by the competent authority within the meaning of section 2 (c) (iii) of the Standing Orders Ordinance. However. what further find that the plea with regard to this contention raised on behalf of the appellants was not taken at its initial stage. The grievance notice on the record does not show that plea to the effect that the termination order was not signed by the competent authority was taken therein. Even the grievance petition does not disclose. the plea taken therein. The appellants filed their affidavits in evidence and the plea to the effect that their termination order were not signed by the competent authority was not pleaded even in that evidence. Mr. S. M. Safdar, the Senior Administrative Officer filed his affidavit in evidence on behalf of the respon dent and was subjected to cross‑examination on behalf of the appellants but it was not at all suggested to him in the cross‑examination that the orders of termination of services of the appellants were not signed by the competent authority. No such plea was taken even in the memo of appeals presented to this Tribunal even in the appeals. Accordingly, there is hardly a justification for the appellants to raise such a plea at this belated stage at the time of final arguments in the present, appeals. On the other hand, there has been an assertion on behalf of the respondents that the order of termination of services of the appellants was passed and signed by the competent authority, as the decision was taken at the Directorial level and the orders were actually signed by the Acting Manager (Personnel and Administration) as disclosed by the order themselves. Accordingly, I ‑find no substance even in this contention raised on behalf of the appellants.

8. For the aforesaid reasons, there is no force in any of the conten tions raised on behalf of the appellants.. The four appeals are accordingly dismissed. A. B. Appeals dismissed.