1991 PLP 29 (PLC)

S. M. Yaqoob for Appellant. Ibne Ayub, Representative for Respondent. Date of hearing: 6th March, 1990. This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No. IV at Karachi, dated 2-7-1989, whereby he ordered reinstatement of the respondent with back benefits. 2. The brief facts of the case are that the respondent was admittedly employed by the appellant vide order, dated 22-2-1988 as mason purely on temporary basis for thirty days. However, he continued to work even after expiry of thirty days but met with an accident on 18-3-1989. He was hospitalised from 20-3-1988 to 28-4-1988. When he reported for duty his services were terminated. The respondent aggrieved by the termination order, served grievance notice upon appellants and riled grievance petition. 3. I have heard Mr. S.M. Yaqoob, learned counsel for the appellants and Mr. Ibne Ayub, learned representative for the respondent and have also gone through the record and proceedings of the case. 4. The main grievance of the respondent was that he was not served with an order in writing, but his services' were terminated by an oral order. The termination order in writing has been produced by the appellants as Annexure `B' to the affidavit-in-evidence filed by Mr. Aslam Chowdhry, Deputy Manager of the appellants. Admittedly this order was not received by the respondent as according to the appellants he refused to receive it. However, it is also admitted that neither this termination order was pasted on the `Notice Board. after his alleged refusal nor was it sent to the respondent by registered post. 5. The respondent was a party to the proceedings when this termination order was produced in the Court by respondent's witness on 27-2-1989 and he had even cross-examined the witness of the respondent on this letter. He will, therefore, be deemed to have been served with this notice on 27-2-1989. The respondent would, therefore, be deemed to have continued in service at least till 27-2-1989, when the order of termination of service was shown to him in the Labour Court. 6. It is submitted by Mr. Ibne Ayub that the respondent having worked for more than nine months by 27-2-1989 would be deemed to have acquired status of a permanent workman. The evidence of Ch. Aslam shows that the respondent was employed temporarily on work of temporary nature which has been finished and his services were no more needed. This evidence is not controverted and is supported by the appointment order which has been produced by respondent alongwith his grievance petition as Annexure which clearly shows that he was appointed for 30 days on temporary basis. Mr. S.M. Yaqoob has relied upon the case of Pakistan International Airlines v. Sindh Labour -Court No. V and others P L D 1980 S C 323. In that case their Lordships have held that "insertion of words `likely to be' in clause (e) of Standing Order 1 clarifies that a workman cannot become a permanent workman if work for which he came to be employed was expected to be finished within nine months but in fact it was completed after expiry of nine, months." It was held that "workman cannot become permanent solely on the ground of having been in the employment for more than nine months." There is no evidence to show or controvert the evidence of Ch. Aslam that job of respondent on which he was employed was work of temporary nature likely to last not more than nine months. Only because the respondent continued to work for few more days after the expiry of initial period of thirty days and later because the appellants kept him in their hospital on their own expenses for some period would not make him a permanent workman. There is no evidence that he worked with the appellants after 30-4-1988 or that work on which he was employed continued after that date. The mere fact that the order in writing as required under Standing Order 12(3) was served on him after period of nine months viz. 27-2-1989 in the Court would also not confer upon him the status of a permanent workman. Reference may be made to the case of Muhammad Rauf v. Makran Fisheries Ltd. and another 1981 S C M R 631 wherein their Lordships held as under :-- "However, according to learned counsel, the effect of paragraph 12(3) of the Standing Orders of the West Pakistan (Standing Orders) Ordinance, 1968 (hereinafter called the said Ordinance) was that the petitioner could not be dismissed except by an order which shall explicitly state the reason for the action taken'. But as the petitioner had been informed by a mere oral order after the second show-cause notice, not to report for duty. the further submission was that the petitioner's employment had not been lawfully terminated. Now although the respondent had not issued a written order of dismissal after its second show-cause notice. and merely prohibited the petitioner from working by an oral order, the respondent proved that it had later passed a written order of dismissal on 5-4-1974, therefore, the learned Judge held that the petitioner's employment had been terminated on 5-4-1974 and had ordered that his pay and emoluments should be paid to him upto that date. We have examined this order of 5-4-1974 and we are satisfied that it complied with the provisions of Standing Order 12(3) of the said Ordinance, therefore, there is no merit in learned counsel's submissions." 7. There is no evidence to show as to when this order, dated 30-3-1988 was actually issued. Mere date on the order would not be sufficient to conclude that it was issued on 30-3-1988 specially in view of the fact that it was not sent by Registered Post to the respondent. However, its production in the Court on 27-2-1989 would leave no doubt that at least by that date this order in writing was issued: Therefore, in view of the decision of their Lordships of the Supreme Court in the case of Muhammad Rauf v. Makran Fisheries Ltd. and others 1981 S C M R 631 and in view of the circumstances of the case the termination of the services of the respondent would be effective from 27-2-1989. Considering all the facts and the law discussed above the appeal is allowed and the order of the Labour Court is set aside. However, the respondent is ordered to be paid, back benefits and other dues admissible to him upto the date when this termination order becomes effective viz. 27-2-1989. A.A./1725/Lb. S Order accordingly.