2016 PLP 300 (PLC)

ALI SAIN DINO METLO, MEMBER.

The appellant, a machine operator, has challenged judgment dated 22nd October 2011 of the Sindh Labour Court No.II, Karachi, dismissing his Application No.66/2008 for reinstatement in service.

2. Briefly, the facts are that services of the appellant and several other workers working in the factory of the respondent No.01 were terminated by the respondent No.02, a contractor, on 24th May 2008 on the ground that their services were "no longer required".

3. The workers filed applications before the Labour Court for their reinstatement contending that they were employees of the respondent No.01 but the respondent No. 02 terminated their services unlawfully.

4. The Labour Court, by a common judgment, reinstated the workers with 75 % back benefits except six, including the appellant whose application was dismissed on the ground that after withdrawing his legal dues deposited in his bank account, he ceased to be an aggrieved person.

5. The respondents as well as the workers challenged the judgment by separate appeals. The respondents challenged reinstatement of the workers and the reinstated workers challenged denial of 25% back benefits. The appellant challenged dismissal of his application. On 31st October 2012, this Tribunal maintained the judgment of the Labour Court and dismissed all the appeals.

6. The appellant challenged order of this Tribunal in Constitutional Petition No. D-4543/2012 and the High Court of Sindh, by its order dated 19th September 2013, set aside the judgment of this Tribunal to the extent of appellants' appeal and directed to decide it on merits afresh.

7. The finding of the Labour Court that the workers were employees of the respondent No. 01 and the respondent No. 02 was introduced only as a device to deprive the workers of their legitimate rights is unexceptionable. Ikram-ul-Haq Rizwan, the sole proprietor of the respondent No. 02, admitted that he had no previous experience and that everything including plot, building and machinery belonged to the respondent No. 01 and that the raw material was supplied, gas and electricity bills were paid and the product was marketed by the respondent No.

01. He further admitted that without the respondent No.01 no one could continue the work and no production process could be carried on. In such circumstances, it cannot be said that the respondent No. 02 was an independent establishment.

8. The Labour Court dismissed application of the appellant on the ground that the legal dues amounting to Rs.54,210/- credited to his bank account on 9th June 2008 was later on gradually withdrawn by him. The order is not sustainable. The amount was deposited in his account after terminating his services. Gradual withdrawal of the amount by the appellant to sustain his life during unemployment will not amount to waiver so as to estop him from challenging his unlawful termination. For this, reference may be made to the case of General Manager National Radio Telecommunication Corporation v. Muhammad Aslam (1992 SCMR 2169).

9. There is no force in the arguments of the learned counsel for the respondents that principle laid down in Muhammad Aslam's case is applicable to the cases of wrongful dismissal and not to wrongful termination, as both result into wrongful removal from service.

10. As regards the appropriate relief to be given to the appellant, the Labour Court as well as this Tribunal are required to "pass such orders as may be just and proper in the circumstances of the case" which cannot be limited only to reinstatement and includes award of compensation in lieu of reinstatement in appropriate cases.

11. The Industrial Relations Ordinance, 2002 contained a regulatory provision restricting discretion in the award of compensation equivalent to not less than 12 months and more than 30 months basic pay and house rent, if admissible. Absence of such provision in the Sindh Industrial Relations Act, 2013, will have the effect of removal of the fetters and not the power. A Labour Court or this Tribunal are not handicapped to award compensation in lieu of reinstatement, if that be the just and proper order in the circumstances of a case.

12. Long lapse of time and long litigation resulting into estrangement of relations and loss of trust and confidence are the relevant factors for awarding compensation in lieu of reinstatement. In the present case, services of the appellant were terminated in May, 2008. More than 71/2 years have passed. The litigation went up to the High Court. The relations have estranged and the confidence is lost. In such circumstances, reinstatement will not be viable and productive. The appellant, who as per his own claim served for four years only, is, therefore, awarded a lump sum reasonable compensation of Rs.300,000/-in lieu of reinstatement and the appeal is allowed accordingly. The respondent No.1 is directed to deposit the amount within 30 days. HBT/33/SLT Appeal allowed.