1989 PLP 178 (PLC)

‑‑‑S.O. 12(1)‑‑Industrial Relations Ordinance (XXIII of 1969), S 25‑A & 38(3)‑. Termination simpliciter‑‑Workman involved in criminal case under Customs Act and his entry Pass for Port area taken by Police as piece of evidence rendering him unable to enter Port area for the duty‑‑Management advised him to proceed on leave‑‑Workman after availing leave as advised reporting for duty but not allowed to do so and subsequently receiving letter regarding termination of service‑‑Plea that since workman did not possess Port area Entry Pass, management could not wait and indefinitely keep the job vacant hence services had been terminated simpliciter on payment of one month's pay in lieu of notice‑ Termination order set aside by Labour Court‑‑Held: Management should have posted him in their office outside Port area and approached concerned authorities for issuance of a new or duplicate Entry Pass in favour of workman instead of throwing him out of service which indicated mala fide intention of management to victimize him. 1983 P L C 350 held not applicable. Masood A. Ghani for Appellants. S.P. Lodhi for Respondent. Date of hearing: 18th February, 1988. This is an appeal filed by the appellants establishment against an impugned order dated 27‑10‑1987, passed by the Sind Labour Court No. V at Karachi who had allowed the grievance petition of the respondent directing his reinstatement in service with full back benefits within 15 days under section 25‑A, I.R.O., 1969.

2. Briefly stated the facts of the case were that the respondent claimed to have been permanently working as Tally Clerk in the appellants establishment since 1‑11‑1968 and had an unblemished service record and that on 11‑9‑1985, he was allegedly involved in a case registered by Customs Authorities and 20 days thereafter he was released on bail and he reported for duty, but, was advised by the appellants establishment to proceed on leave. It was further claimed by the respondent that accordingly 3 months leave with effect from 10‑9‑1983 to 9‑12‑1983 was granted to him and when again on 11‑12‑1983, he reported for duty, it was advised to him to proceed on leave for a further period of 3 month and on the expiry of this extended leave, when on 10‑3‑1984 he had reported for duty, he was not allowed to resume the same against which he sent a representation on 21‑3‑1984 to the Managing Director of the appellants establishment and instead of a reply to it, it was surprise to him to have received a letter on 2‑4‑1984 showing therein that his services had been terminated with effect from 22‑3‑1984, mentioning that ass he had failed to get the investigation finalised in the Customs case, therefore, the appellants establishment could not wait any longer. Being aggrieved with this action of this appellants establishment the respondent claimed to have sent his grievance notice on 8‑4‑1984 followed by his present grievance petition under section 25‑A, I.R.O. 1969.

3. The appellants establishment resisted the petition on the grounds that at the relevant time, the respondent was working as Tally Supervisor and as such he was not a workman within the ambit of Labour Laws, hence, his grievance petition was not legally maintainable. On merits, it was claimed by the appellants establishment that it was wrong to claim by the respondent that he had proceeded on leave on the pursuation of the appellants establishment and that as he was involved in a criminal case under the Customs Act, therefore, the Karachi Port Trust had confiscated his Entry Pass through which he could have entered into Karachi Port Area and in view of this position, the appellants establishment could not wait and let the job lying vacant indefinitely, so, his services were terminated on payment of one month's salary in lieu of notice, hence, he could not maintain his grievance petition under section 25‑A, I.R.O. 1969, which was liable to be dismissed.

4. Both the parties"‑ have filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order, hence, the present appeal.

5. I have heard Mr. Masood Ahmad Khan, the learned Advocate for the appellants establishment and Mr. S.P. Lodhi, the learned representative on behalf of the respondent and have also carefully perused the record and proceedings of the case as well as the written arguments, submitted by both the parties. At the very outset, I would observe here that the impugned order is well reasoned and the learned Labour Court had pained to thoroughly discuss and fully appreciate the entire evidence, facts and documents brought on record as well as the legal aspects involved in the present case and as such, I find nothing wrong with it. It is an admitted position that the appellants establishment had miserably failed to produce any written order on record, to substantiate their contention that the respondent had ever been promoted as Tally Supervisor. After careful perusal of the entire evidence on record and consideration of the documents, I would hold 1 that the learned Labour Court was quite right in coming to the conclusion that the respondent was Tally Clerk and not Tally Supervisor, and as such, he was performing the duties of clerical and manual, in nature at the relevant time. It is also an admitted position that the respondent was challaned under Customs Act, but, after full‑fledged trial, he had been acquitted in the said case by the learned Special Judge Customs, vide order dated 1‑6‑1986, therefore, it was not proper and permissible for the appellants establishment to remove the respondent from their employment only for the reason that he could not enter into P.T. Areas on account of confiscation of his Entry Pass. It was essential for the appellants establishment to have posted the respondent in their office, outside the premises of the Port Area on an equal or similar nature of job and should have waited for the fate of alleged criminal case under the Customs Act, instead of throwing him out of the employment without consideration of his unblemished long Service Record thereby depriving his innocent dependants of their livelihood, particularly in view of the admitted position that the appellants establishment was of a high reputation, certainly due to their sound financial position and flourishing business. This is a double punishment upon a poor man; particularly in view of the fact that he had been subsequently exonerated form all such charges. The Entry Pass, in question, was not confiscated by the K.P.T. Authorities but it was brought on record as a piece of evidence and a new or duplicate of it could have C been issued by the concerned authorities after the release on bail of the respondent, if the appellants establishment would have sincerely approached for the same. But in the present case this is not the position. It was the duty of the appellants establishment to approach the concerned Authorities for the issuance of such Entry Passes for its employees and not for an employee to get the same on his own. All these circumstances go in favour of the respondent that the appellants establishment had deliberately not discharged its liabilities and instead asked the respondent to proceed on leave so that it could throw him out of the employment on a false plea that it could not wait for him indefinitely. This is clearly pre‑determined and mala fide intention of the appellants establishment only to victimize the respondent. It is also an admitted position that in the alleged termination order itself and in reply to the grievance notice of the respondent, the appellants establishment had undertaken to re‑employ the respondent if he is acquitted from such trial. In view of this confession, the present litigation is not called for. This is merely an attempt to deprive the respondent of his lawful and legitimate benefits. In view of this factual and admitted position. I see no force in any of the contentions of Mr. Masood A. Khan, the learned Advocate for the appellants establishment. All the authorities, reported in 1965 P L C 449, 1981 P L C 293, 1983 P L C 350,1982 P L C 166, 1983 P L C 509,1983 P L C 454,1983 P L C 1167 at p. 1168‑A, 1981 P L C 293 are distinguishable and are not at all applicable to the facts and circumstances of the present case and they have been rightly not relied upon by the learned Labour Court.

6. For the reasons discussed by me above, I see no reason to inter ere with the impugned order and would accordingly maintain the same. I would, therefore, dismiss the present appeal. The respondent is directed to be reinstated in service with full back benefits forthwith. The amount of back benefits, already deposited by the appellants establishment in this Tribunal be immediately paid to the respondent, after due verification. A.E./1266/Lb.S Appeal dismissed.