1992 PLP 179 (PLC)

S.O. 12(3)

Termination of service

Employer had contended that service of workman was terminated on his own request

No alleged request of workman was in writing and employer did not make any reference thereof in termination order

Even if accepted that any such request was made by workman, same would not absolve employer from observing mandatory provisions of S.0.12(3)

Termination order passed by employer without complying with S.O. 12(3) was defective and as such could not sustain. S.S. Jehangir for Appellant. Shafiq Quraishi for Respondent. Date of hearing: 8th August, 1991. This is an appeal against the order of Sindh Labour Court No. IV at Karachi, dated 7-5-1991.

2. I have heard Mr. S. Jehangir learned Advocate for the appellants and Mr. Shafiq Quraishi, learned counsel for the respondent and have also gone through the record and proceedings of the case.

3. Admitted facts appear to be that the respondent was old employee of the-appellant whose services were terminated vide order, dated 6-3-1990, w.e.f. 8-3-1990. Aggrieved by this order the respondent served grievance notice upon the appellant and then filed grievance application before the learned Labour Court which was allowed and he was ordered to be reinstated in service with full back benefits.

4. The appellant has resisted the grievance application on two grounds, firstly that the respondent was not workman, and secondly that his services were terminated at his own request. These two grounds are also urged in this appeal.

5. The respondent in his affidavit-in-evidence has stated that he was performing the job of Senior Clerk but was designated Production Assistant. He states that he was doing clerical work with his own hands. I find that this statement of his has not been challenged in the cross-examination except to suggest that he controlled the production which suggestion is denied by the respondent. Respondent also examined Syed Sajjad Shah, an employee of the appellant. He has also stated that the respondent was doing work of Senior Clerk but was designated as Production Assistant which statement has not been specifically challenged in the cross-examination. The appellant examined Mir Murtaza Ali who stated, that the respondent was Production Assistant which was supervisory charge. His statement has been specifically challenged in the cross-examination and it was suggested that the respondent was doing duty of Senior Clerk in Administrative Department which he has denied. Be that as it may, there is no evidence produced by the appellant to show as to what was the nature of duties of Production Assistant so as to exclude the respondent from the category of workman. It is settled law that it is not designation, but the nature of work which determines status of employee whether he is workman or not.

6. In view of the evidence on record which has been discussed as above I am inclined to agree with the learned Labour Court, that the respondent was workman. The services of respondent had been terminated vide order, dated 6-3-1990, which is Annexure `A', which shows, that his services were terminated w.e.f. 8-3-1990 as they were no longer required.

7. Mr. Muhammad Shafiq Quraishi has relied upon a Division Bench decision of. Karachi Bench of Sindh High Court in the case of Ghulam Ahmed v. Sindh Labour Appellate Tribunal and 2 others 1990 PLC (C.S.)

385. Their Lordships have observed that "statement in termination order `that service of workman was no longer required' could not be a reason for terminating the service, because such statement called for further enquiry and in itself was not B a ground or reason for termination". Mr. S.S. Jehangir in view of the decision of High Court conceded that the order was not in accordance with Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. However Mr. S.S. Jehangir contends that termination of service of the respondent was on his own request. Admittedly this request was not in writing and no reference has been made to this alleged request in the termination order. Mr. S.S. Jehangir mainly relied upon the admission of the respondent that he received a cheque of Rs.30,000 after termination of service which he has deposited in the bank. It is further contended that it was post-dated cheque which the respondent had agreed to receive, but later he insisted that he should be given cash amount and therefore he gave the grievance notice. No doubt. the respondent admits receipt of cheque but cheque was admittedly not encashed. There is no alleged request of the respondent in writing. He has denied such suggestion in the cross- examination. Even if it is accepted for the sake of argument that the respondent did request that his services be terminated still it will not absolve C the employer from observing the mandatory provisions of Standing Order 12(3). In fact the appellant tried to comply with provisions by issuing the termination order in writing, but as pointed out, this order was defective and did not comply with the provision of Standing Order 12(3).

8. In view of the above position, the appeal of the appellant is dismissed. H.B.T./1953/Lb. S Appeal dismissed.