1998 PLP 221 (PLC)

WAJIHUDDIN AHMED, J.

These are twenty connected Constitutional petitions, each directed against an individual worker of Petitioner Telephone Industries of Pakistan (TIP). On facts, the twenty workmen had joined TIP on various dates during the years 1976 to 1985 as mechanics, technicians and technical assistants. According to Mr. Muhammad Majid Jillani, their learned counsel, such workers even though employed for several years in succession were not made permanent, the omission leading to their filing grievance petitions for necessary redress. While these petitions were pending, it is the case of the contesting respondents that they were terminated, resulting in issuance of fresh grievance notices and consequent submission of grievance petitions seeking reinstatements in service. The two sets of proceedings were taken up together and, on the one hand, the terminations were found to be illegal while, on the other, the private respondents were found to be workmen, who had attained permanence by efflux of the requisite periods of time. While the employer appealed, and the appeals were pending, the notices, subject-matter of yet another round of proceedings, impugned in these petitions, were issued. It would be advantageous to reproduce here one of such notices in extenso, because the remaining in the rest of the cases are identical:-- "We refer to your letter dated 15-3-1993 We are aggrieved of the order dated 7-3-1993 passed by the Sindh Labour Court No. 1, Karachi, allowing your both the cases. Against the said order we have preferred an appeal before the Sindh Labour Appellate Tribunal. Subject to the final outcome and the legal remedies available to us against the impugned order dated 7-3-1993, you are reinstated in service with effect from 7-3-1993. However, we regret to inform you that the job (Installation of E.M.D. Exchanges) for which you used to be engaged against temporary nature of work from time to time being not available, your services are therefore, hereby terminated with immediate effect on payment of one month's wages in lieu of notice." These notices in turn, led to the present set of litigation. The Labour Court and the Labour Appellate Tribunal have, concurrently, found the terminations, effected through the quoted notices, to be in contravention of Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders Ordinance) inasmuch as the common reason assigned in the notices in question was inaccurate and in real terms the contesting respondents were retrenched, thereby transgressing the principle prescribed in Standing Order 13 of the same Ordinance. These concurrent findings have brought the petitioner-employer here. At this stage, it would be convenient to reproduce Standing Orders 12 and 13, which we hereby do: -- Standing Orders Ordinance, 1968. "

12. Termination of employment.

(1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated, and no probationer or Badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord. (3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. (4)

(5) The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. (6)

(7)

(8) Where a workman dies while in service of the employer, his dependant shall be paid gratuity in accordance with the provisions of clause (6):

13.Procedure for retrenchment.

Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person in that category. " It will at once be seen that Standing Order 12, .in relation to severance of relationship of employer and workmen generally postulates specified norms and specially prescribed guarantees for permanent workmen. Thus, for terminating the employment of a permanent workman, for any reason other than misconduct, one month's notice from either side is visualised or in lieu thereof one month's wages. However, the rule has not been extended to temporary workmen of various categories nor to probationers. As for dismissal on the ground of misconduct, Standing Order 12(5) makes the procedure in Standing Order 15 a prerequisite for termination on that ground. Next, the rule, equally applicable to permanent as well as temporary workmen, is that their services shall not be terminated nor would they be removed, retrenched, discharged or dismissed from service except by an order in writing. The order, in turn, shall explicitly state the reason for the action taken. This done, in the event the workman concerned is aggrieved by such termination in the way of removal, retrenchment, discharge or dismissal, he is given the option to seek redress in accordance with the provision in section 25-A of the I.R.O. and, that resort being taken, the provisions of the said section shall apply as they apply to the redress of an individual grievance. Here, it would be noticed that the genus for severance of relationship between an employer and the workmen in Standing Order 12 is designated as "termination" whereas "removal, retrenchment, discharge or dismissal" from service appear to be species of that genus. These are not common place expressions but words of art and even technical words. Since shall have to be interpreted in the light of the meanings assigned to them in the precedent law and other acceptable constructions. Thus, some of these were examined in the Supreme Court case of Ghulam Sarwar v. Pakistan PLD 1962 Supreme Court

142. Relevant passages from the separate judgments of Hamoodur Rehman and Inamullah Khan, JJ. are respectively reproduced here for ready reference:-- "The fact that in these rules 'removal' which does not disqualify from future employment has also been described as a penalty does not, in my view, make it synonymous with 'discharge'. Although 'dismissal', 'removal' and 'discharge' all produce one common result, namely, a severance of the relationship of master and servant, it does not necessarily follow that these words also possess the same connotation. The words 'dismissal' and 'removal' appear to me to have been used in these rules to describe a termination of service occasioned by some fault on the part of the employee whilst 'discharge' has been used to signify a faultless termination of service. The only case in which a departure appears to have been made is in the proviso to rule 1708 of the Railway Establishment Code, Volume I where the word 'removal' has been used, possibly by mistake, to signify a discharge in terms of the service agreement. "

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17. The words dismissal and removal have thus different connotations. The word 'dismissal' conveys more than 'removal'. The word 'dismissal' would connote forfeiture of certain benefits but there is no such justification for interpreting the word ' removal'. The word 'discharge' is more akin in meaning to ' removal'. It would, therefore, appear that if the words 'dismissal' and 'removal' are given their dictionary meaning the termination of the services of a permanent employee would attract the provision of subsection (3) of section 240 of the Act. " Correspondingly, in the specific context of service disputes, the meaning assigned to the words removal, retrenchment, discharge and dismissal, in common parlance and in judicial constructions, are these: The word "removal" signifies an act of displacement from a post or position. Such, usually, comes about for a fault on the part of an employee but also may be occasioned, in certain circumstances, quite blamelessly. "Retrenchment" comprises of an act or instance of cutting off, cutting out or cutting down, in many a cases, for considerations of economy, such as discharge of the surplus labour or staff in a continuing or running industry. This is how our labour laws seem to employ the expression. "Discharge" involves either simple relieving of a charge of any kind or to dismiss, though usually the former, as perhaps in our labour laws. Such, therefore, may either be without apportionment of blame or on account of commission of an offence or misconduct. In either case, it results in extinguishment of an obligation or termination of an employment. "Dismissal" is the loose equivalent of removal from an office or employment. This class of termination, implicitly, involves severance of relationship before time and on account of some defect in the performance or discharge of duties. Thus, the connotations in the above expressions, in relation to service or employments, may be overlapping. In the specific context of our labour laws, however, "removal" and "discharge" may possibly involve no more than a bare severance of relationship of master and servant, without any fault occasioning the same and may, generally, tantamount to a termination simpliciter. On the other hand, "retrenchment" of the whole or part of a work force should have, as its underlying reason, a drive for economy in an establishment or industry, occasioned on account of a number of factors, which may vary from time to time and situation to situation. Again, as distinguished from a termination simpliciter is the case of a "dismissal". It must, necessarily, result upon some fault or faults on the part of the employee or workman for which there has, invariably, got to be a notice, an inquiry a resultant hearing and a culmination in an adverse finding. "Dismissal" carries a stigma whereas "removal" and "discharge" may not and "retrenchment" never does. As a consequence, "dismissal" may disqualify for re-employment though "removal", "discharge" and "retrenchment", generally speaking, do not. The conclusion on the basis of the foregoing analysis is that the guarantee of a month's notice from either side in Standing Order 12(1) is not invocable or applied where the workman has been proceeded with for misconduct or is terminated on that ground. As a common factor, what is mandated by the Legislature in Standing Order 12(3) is that in the event a workman is to be terminated, the termination should be through a speaking order, specifying clearly the reason for the termination unless it transpires that the termination is not a termination simpliciter and is founded, on due enquiry; on the ground of misconduct, in which case the outcome of the inquiry is the applicable reason. In many a cases, however, the terminations brought about either do not disclose the reasons or do not disclose the same adequately or the reasons, such as are disclosed, are not the actual or real reasons. It, therefore, frequently comes up before the Courts of Labour jurisdiction to determine as to whether the pre-requisites for termination in Standing Order 12(3) aforesaid, have been satisfied and if not what the consequences should be. It should have been noted that Standing Order 12(3), when it speaks of retrenchment, implicitly, makes a reference to Standing Order 13, incorporating the principle governing retrenchment-, much as Standing Order 12(5), explicitly, makes the procedure for dismissal in Standing Order 15 mandatory. Non-compliance or sham compliance of either, if prejudicial to a worker, may be subjected to a grievance notice and, if remaining unredressed, to a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in virtue of the legislation by reference, occurring in Standing Order 12(3). In such an eventuality the Courts must determine the efficacy of the reason assigned. As it turns out, in the instant cases the Courts in the labour jurisdiction have, concurrently, found that the reasons cited were not the actual reasons and that on such basis the terminations involved in these proceedings were uncalled for, having consequently been set aside. Coming to the reasons assigned, it is clear from the notice of termination, reproduced above, that the respondents in these petitions were purportedly re-instated from a back date viz. 7-3-1993, the date of the Court order, and were simultaneously terminated. Both results were brought about through the same notice, addressed on 24-3-1993. The deemed re instatement thus, may tantamount to a legislative act performed by a person who does not even qualify as the executive, being a mere establishment. What is more, the reason for termination, after such equivocal re instatement, was questioned by the workmen in these proceedings through the grievance notices, where it was expressly denied that the employment was for installation of E.M.D. exchanges on a temporary basis. It was further said that the T.I.P. was still continuing with the employment of workers on E.M.D. exchange basis none of whom had been retrenched or terminated. Specifically, it was stated that junior persons were still continuing in the employment of the T.I.P. which showed mala fides of the management in refusing to continue with the respondents. In the grievance petitions the contents of the grievance notices were taken as part and parcel of the same, copies thereof having been annexed. Again, in the affidavits-in -evidence it was categorically averred that the management had not followed the principle of first in last out". There does not seem to have been any cross-examination on the question that others in the same employment, were continuing or that the essential prerequisite for retrenchment viz. the rule of ' 'first in last out", so fundamentally entrenched in Standing Order 13, was followed. What is still more material, in the cross-examination of the employer the following (underlined) admissions were made:-- "The main function of T.I.P. is the installation of telephone. In the year 1960 the Telephone Exchange used to work on F.I. System. This system was subsequently converted to EMD System. At present EMD EDSD and A.P.L. Systems are working. Few of the employees who were employed in the year 1962 are still in service. We had attached 3 or 4 old employees to the installation of EMD Exchange alonewith new employees. E.M.D, was introduced in Karachi either in the year 1966 or 1967. Twenty old employees or so have been deputed in the EDSD System. We issue appointment letters to the regular employees. We do not give employment on the basis of some particular system but they are employed according to the trade requirement. Like mechanic and technical etc. I am engineer by profession. At the time of my employment, the telephones were being installed on F.I.A. yawrn was subsequently changed EMD System and presently the system has been changed as stated earlier. It is a fact that the regular employees still continue in service of T. I. P. despite the abovementioned change in the system. It is a fact that according to the Labour Court's verdict the applicant having completed nine months in service are entitled to be made permanent retrospectively. Pir Ghulam one of the applicant was employed in the year 1980. Nayyer Iqbal was regularised on 20-1-1986, so also Shamim Akhtar. They both are mechanics. On similar basis 10 or 11 more were also made regularised. I produce the letter regarding appointment of M/s. Shamim Akhar and Nayyar Iqbal as Exh R/1 and Exh. R/2 respectively It is fact that the remaining 10 and 11 employees were also issued letters of same type At this stage I cannot say if Shamim Akhtar and Nayyar Iqbal and other 10 or 11 are Junior to the present applicants." On the foregoing material, it cannot be said that the finding of the Labour Court and the Labour Appellate Tribunal, that the workmen were actually retrenched, though in the garb of orders of termination simpliciter, is based on no evidence of ignores or misapprehends evidence. Such terminations, arguably, fell within the purview of the jurisdiction of the Labour Courts and conclusions there reached do not appear to have been ill- founded. Even so, the learned counsel for the petitioner-employer has urged that the Labour Court acted in excess of jurisdiction when it proceeded to entertain the grievance petitions of the respondents-workmen. Reliance has been placed on the Supreme Court judgment in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. In such case, relative to the K.P.T. employees, their Lordships pointed out that, there being statutory rules of service available to such employees, in virtue of the first proviso to section 1(4) of the Standing Orders Ordinance, 1968, those rules prevailed and the Standing Orders Ordinance stood excluded. They then proceeded to observe that the definition clause in section 2(xxviii) of the Industrial Relations Ordinance (I.R.O.) did not embrace a dismissed, discharged, retrenched, laid off or otherwise removed workman. This being so, it was held that a workman whose employment had been terminated could not resort to the remedy contemplated in section 25-A of the I.R.O. In the process was also distinguished an earlier decision of the Supreme Court in Trustees of the Port of Karachi v. Abdul Ghani 1983 SCMR 769, declaring that in such case the question pertaining to the rights of a terminated workman under section 25-A of the I.R.O. had not been decided and was left open. For ready reference we may reproduce here section 2(xxviii) of the I. R. O.:

Industrial Relations Ordinance, 1969: Section 2(xxviii): "Worker" and "workman" means any person not falling within the definition of employer who is employed including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged retrenched laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person-- (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature. " It would be seen that whereas the first part of the definition is all embracing and covers in the category of workmen all persons not falling within the definition of employer, employed including employment as supervisors or as apprentices in an establishment or industry "for hire or reward either directly or through a contractor whether the terms of employment be express or implied", the definition, for the purpose of any proceeding under the I.R.O. in relation to an industrial dispute, is extended to include "a person, who has been dismissed, discharged, retrenched, laid -off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal had led to the dispute ". In the first place, it is difficult to conclude that the remedies under the I.R.O. in virtue of the above definition of worker or workman, have been limited only to such persons who continue to be employed in an establishment or industry. This would leave a very limited field for operation of the law and may not be in line with the rule of liberal and beneficial construction, applied to labour laws. It may further be added, with respect, that when a worker or workman is terminated, to is terminated in relation to his employment as such and the cause for grievance arises to him at a point of time when he is such worker or workman. The redress, therefore, that he may seek has a nexus with something which was done in the course of his employment and not beyond that spectrum. An added consideration may lie in the fact that if a terminated worker is excluded from the ambit of the definition and, correspondingly, from the entitlement to seek redress under section 25-A, such should involve a presumption that, howsoever illegally and unwarrantedly he may have been terminated, he does not, in law, continue to be a worker. It hardly bears mention that were a terminated worker to seek redress under section 25-A he, in effect, would be seeking, as one of the reliefs, a finding that his services were dispensed with otherwise than in due course of law and from his point of view he remains in the employment. Therefore, a terminated worker, also, may fall within the first part of the definition clause. Another aspect of the matter has relevance to the definition of an "industrial dispute" in section 2(xiii) in the I.R.O. The definition is this: Industrial Relations Ordinance. 1969: Section 2(xiii): "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force. " As such, the definition of "industrial dispute", pertaining to a right under the I.R.O., signifies "any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of the employment or the conditions of work of any person". This being the definition of an "industrial dispute", a terminated workman, as well, on a question, which has a nexus with his "employment or no employment", falls within the later part of the definition (involving an "industrial dispute") of a worker or workman in section 2(xxviii) of the I.R.O. and may, therefore, logically prefer a grievance petition in terms of section 25-A of the same Ordinance. This aspect, relevant to the definition of the expression "industrial dispute", does not seem to have been pointed out to their Lordships in the case of Trustees of the Port of Karachi v. Muhammad Saleem and if that were so, perhaps, another view was possible. We would, however, with respect, leave the matter at that because the determination of such question can be skirted on another plane of reasoning, as would shortly be shown. Now, irrespective of what has been with respect submitted above, the grievance ventilated before the Labour Court, findings there being confirmed in appeal, essentially, pertained to avowedly illegal terminations of services in contravention of Standing Orders 12 and 13 in the Standing Orders Ordinance. The remedy is provided not by the Standing Orders Ordinance itself but in such Ordinance through the invocation of the provision in section 25-A of the I.R.O. as would be found upon a perusal of Standing Order 12(3), postulating that a workman aggrieved by the termination of his services may proceed under section 25-A of the I.R.O. and "thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance". This is, as observed in Mobeen Ahmed Siddiqui v. Chairman, Sindh Labour Appellate Tribunal 1991 PLC 780, what in law is known as legislation by reference. Qua the legislative measure so enacted, the ambit and scope of another legislation, already on the statute book, is enlarged or otherwise affected so as to cater, by reference, to the requirements of the subsequent statute, where a deeming or other such clause is incorporated. Reverting, the effect of the creation of the right spoken of in Standing Order 12(3) and the remedy postulated upon transgression thereof, manifestly, is that a person, who qualifies as a workman under the Standing Orders Ordinance and whose services stand terminated, in contravention of Standing Order 12(3) may, if he so chooses, seek relief as if such was an individual grievance in terms of section 25-A of the I.R.O. For that purpose, it is irrelevant whether the worker qualifies as one in terms of the definition in the I.R.O. All that he needs to qualify under is the definition clause in the Standing Orders Ordinance itself and cause of action would arise to him, if he be terminated otherwise than in due course, as in the contemplation of Standing Order 12(3). On this plane of reasoning, if the workmen here were not terminated in consonance with the requirements in Standing Order 12(3) and if terminations simpliciter were resorted to when, in actual fact, the cases admitted of retrenchment, the grievances could be taken to the Labour Court for appropriate reliefs. They indeed were and reliefs were administered. In this context, as already hinted, the dicta in the Trustees of the Port of Karachi v. Muhammad Saleem would not be extended because in that case, inter alia, it was found that the Standing Orders Ordinance did not apply to the dispute for the simple reason that the K.P.T. employees, involved there, were subjected to statutory rules of service, conduct or discipline, excluded from the purview of the Standing Orders Ordinance in virtue of the first proviso attached to section 1(4) of such Ordinance. On the contrary, the dicta directly applicable to the instant proceedings would be the Supreme Court enunciations in Matloob Hasan v. Brooke Bond Pakistan Limited 1992 SCMR 227 and Millat Tractors Limited v. Punjab Labour Court No. 3 1996 SCMR

883. For such reasons, as are discussed above, we found no merits in these petitions and dismissed the same through the short orders recorded on 13-3-1997. In doing so, we took advantage of the presence of Mr. Ali Amjad, Advocate, who was appointed amicus curiae in another similar case. He together with Mr. Khalid Jawaid and Mr. Jeelani, for the contestants, has been of considerable assistance to us in reaching the conclusions recorded here. A.A./T-23/K Petitions dismissed.