1998 PLP 83 (PLC)

Abdul Ghani Khan for Respondent No.

1. Nemo for Respondent No.

2. Petitioner's management by this Constitutional petition seeks to impugn the correctness and validity of the order dated 14-11-1995 passed by Sindh Labour Court No. VI, Hyderabad and decision on appeal dated 12-2-1996 passed by learned Sindh Labour Appellate Tribunal upholding the view of the Labour Court directing reinstatement of the respondent.

2. Respondent was employed with the petitioner Sugar Mills as a seasonal worker during crushing season commencing from 1981-82. He smoothly worked with the petitioner management during crushing season 1992-93 but when the petitioner started crushing season in the year 1993-94 with effect from 24-9-1993 petitioner was not reemployed repeated requests and reporting for duty. It was case of the respondent that he was kept on false hopes and finally petitioner refused to reemploy him on 3rd October, 1993. As the refusal was in violation of the labour laws after dated 1-11-1993 he filed his grievance petition before the Sindh Labour Court which was contested but the learned Labour Court came to the conclusion that the action of the petitioner declining to re-employ the respondent for the crushing season of 1993-94 was patently illegal and could not be sustained. Accordingly he was directed to be reinstated with back benefits within two months of the order.

3. Petitioner preferred an appeal from the order being Appeal No. HYD-477 of 1995 before the Sindh Labour Appellate Tribunal at Karachi which came up for hearing or. 12-2-1996.

4. As the learned counsel for the appellant/petitioner did not appear before the Appellate Tribunal, learned Tribunal dismissed the appeal in limine with the observations that the grounds of appeal were vague and general as no specific ground had been shown against the judgment. It was held that non-employment of the respondent at the petitioner Mills for the season 1993-94 was unjustified and he was rightly reinstated under the law, hence this petition.

5. A preadmission notice was issued to the respondent No. 1 who is represented by Mr.Abdul Ghani Khan, Advocate.

6. At the hearing learned counsel for the petitioner has contended firstly that the grievance petition preferred by the respondent was barred by law and secondly that he was not a permanent workman, thus, he could not maintain a grievance petition against the action of the petitioner by his non- employment.

7. We have given a careful consideration to the contentions raised in support of the petition. It will appear from narration of the order that the warned counsel for the petitioner took no steps to pursue the appeal before the Labour Appellate Tribunal and preferred to remain absent on two dates of hearing without any lawful justification with the consequence that the tribunal proceeded to examine the grounds of appeal without his assistance. Adverting to the first contention of the learned counsel main thrust of the argument is that the respondent was served with the letter dated 13-5-1993 by registered post in which the petitioner intimated the respondent that in view of the position of his absentism, management had decided that as per clause (3) of his seasonal employment order he will not be re-employed for the crushing season 1993-94. Argument proceeds on the premises that this letter was duly received by the respondent where as he represented against this letter by his grievance notice dated 1-11-1993 which was hopelessly time-barred and it being so grievance petition itself was liable to rejection summarily. A perusal of the final order passed by learned Labour Court, however, furnishes a complete answer to the point raised by the learned counsel. Learned Labour Court has observed that neither any acknowledgement receipt had been produced nor the postal receipt Exh.R/2 showed that it was properly addressed to the respondent. Even the address of the respondent shown in the letter was found to be incorrect, therefore, it could not be presumed that this letter was duly received by the respondent as misunderstood. Learned counsel attempted to persuade us to draw a presumption arising under the provisions of section 26 of the General Clauses Act in favour of the petitioner and against the respondent but as this factual aspect has been found to be against the petitioner by the trial Court and there is nothing to suggest that such finding was arbitrary, perverse or against the record, we find hardly any substance in the contention of the learned counsel. The contention is, therefore, repelled as misconceived and not tenable at law.

8. Adverting to the second contention raised by the Learned counsel he has referred us to the definition of "worker" and "workman" as defined in section 2(d) (xxviii), I.R.O. as well as the definition contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in which workmen has peen defined in section 2(i) to mean any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or reward, but the learned counsel has further referred to classification of workmen as given in Standing Order I of the Schedule in which workman have been classified in five categories. Learned counsel emphasised the category of a "permanent workman" which has been defined as workman who has beer engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike or involuntary closure of the establishment. We have considered the argument of the learned counsel but we are unable to persuade ourselves to subscribe the view of the counsel that since the respondent does not fall within the category of a permanent workman he cannot have recourse to the Labour Court for the redress of his grievance. Standing Orders Ordinance is essentially a welfare legislation postulating procedural as well as substantial law. Apart from rights and obligations of the employer it provides for minimum guarantees in relation to the employment in an industrial and commercial establishment and a provision to safeguard the minimum rights of workers relating to the terms and conditions of their employment. While Standing Order 1 classifies the workers in five categories, Standing Order 2-A places restrictions on the authority of employer by laying down that every order of appointment, transfer, promotion and termination in respect of workman shall be in writing showing the terms and conditions of his service. Standing Order 3 deals with the publication of working time where as Standing Order 4 provides for notifying holidays and pay days. Standing Orders 7 and 8 deal with attendance and late coming of a workman as well as leave admissible to him where as section 10 prescribes for payment of wages. Standing Orders 10-A, 10-B and 10-C relate to Group incentive scheme, Compulsory Group Insurance and Payment of bonus. Standing Order 11 takes care for closure of establishment with permission of the Labour Court. Standing Order 12 is most important for the purpose of deciding the controversy in this petition. While Standing Order 12(1) stipulates that for terminating employment of a permanent workman, for any reason other than misconduct, one month's notice would be required on either side. Standing Order 12(2) excludes the category of temporary workmen whose services may be terminated without any notice. Standing Order 12(3) signifies the intention of the legislature in so far the method of termination of a workman is prescribed as well as the forum created under I.R.O. for redress of an individual grievance. Evidently this provision ordains that the services of a workman shall not be terminated or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. Whereas Standing Order 12(2) deals with categories of permanent and temporary workers. Standing Order 12(3) is general in nature and provides remedy for workers aggrieved by an order of termination removed, retrenched, discharged or dismissed from service, who may approach the Labour Court in the manner provided in section 25-A, I.R.O. which has been incorporated in Standing Order 12(3). It is established rule of interpretation that a welfare statute is to be liberally construed and Courts do not supply the omissions in such legislation whether these have been deliberately omitted or omission is due to some inadvertence. In Pakistan International Airlines v. Sindh Labour Court No.-V (PLD 1980 SC 323) Supreme Court interpreted the term temporary worker with reference to the words "likely to last" as used in Standing Order 1 of the schedule to Standing Orders Ordinance. This judgment does not place any embargo on a temporary worker that he cannot approach the Labour Court for the redress of his grievance.

9. In fact this question was raised before another Division Bench comprising Ali Muhammad Baloch and M.L. Shahani. JJ in Constitutional Petition No. D-402 of 1996 in this Circuit Court by the same learned counsel and was repelled by the Division Bench but the learned counsel had no courtesy to refer it. It is only because of timely assistance by learned counsel for the respondent that it was brought to our notice that the same point had been thrashed out in the earlier Constitutional petition filed by M/s. Fouji Sugar Mills v. Ali Nawaz and others. In fact we are of the firm view that a seasonal worker has an unconditional right of re-employment which cannot be refused in the manner resorted to by the petitioner inasmuch as neither any show-cause notice was issued to the respondent nor was he afforded an opportunity of hearing before condemning him for discontinuance of his re employment from the next year. Indeed we are supported by the decision in the earlier petition argued by the same learned counsel but we may observe that even in law we are bound by the view taken by another Division Bench of this Court. Faced with this situation, learned counsel was left with no option but to concede that the argument advanced is devoid of any merit.

10. For the aforesaid facts and reasons, there is absolutely no merit in this petition which must fail and is hereby dismissed alongwith Miscellaneous Application No. 908 of 1996 and Miscellaneous Application No. 503 of 1996. A.A./S-98/K Petition dismissed.