2013 PLP 287 (PLC)

Messrs Syed Ali Mehdi and Ashraf Hussain Rizvi learned Counsel for the appellants and Mr. Muhammad Humayun, learned Counsel for the respondents management were heard and they have also advanced their arguments/synopsis in writing. After going through the record and proceedings and arguments, I have come to the following:

Record shows that the termination orders were issued under Standing Order 12(3) of the Standing Orders Ordinance, 1968 with the reason of re-organization/modernization of the establishment. For ready reference the contents of termination order of one of the appellant # 1, Gulzar Ahmed are reproduced hereunder:

"SUB: LETTER OF TERMINATION You are employed as Camera Operator/Helper in J&S Enterprises (Pvt.) Limited. Due to technological changes and advent of computerized digital scanning, digital colour, correction, page making and designing, the work of Camera Operator/Helper has become redundant as this process is being performed by the computers and allied computerized systems, facilities and provisions. Therefore, as a part of company's overall plan for technological advancement, better results, reorganization to achieve economic savings, the work of Camera Operator/Helper has become redundant. As a result, your services have become surplus to our requirement. Your services are, therefore, terminated with effect from 8th November, 2001. You will, however, be paid three month's salary in lieu of notice. You also stand relieved from the aforementioned date. You may collect your dues from the Accounts Department within a period of seven days on production of Clearance Certificate from the Human Resources Department." That the contents of the above termination letter reflects that the provisions of Standing Order 13 of the Ordinance, 1968 may also be applicable in this case, as such, for the said reasons the provisions of Standing Order 13 may also be reproduced hereunder:

"S.O.

13. Procedure for retrenchment.

Where any workman is to be retrenched and he belongs to a particular category of workman, the employer shall retrench the workman who is the last person employed in the category." Appellant in his grievance application before learned Labour Court in Para-7 of the same alleged that juniors workmen have been continued to employ and appellants services were terminated, but during the course of cross-examination appellant had admitted his status as under:

"At the time when services were terminated I was junior camera operator." At another place the cross-examination of the appellant is as under:

"It is incorrect to suggest that respondent was under obligation to change my category and adjust me in any other department." During the course of arguments Syed Ali Mehdi learned counsel for the appellants had produced a C.B.A. agreement with the management of respondents signed on 11-3-1990 and a memorandum of understanding as signed on 23-9-2006, but perusal of both documents reveals that there is a clause in the agreement of 1990 regarding modernization and retrenchment. In which the management has agreed not to terminate the services/close the department but to adjust the workers of the said department in other departments, but thereafter some other agreements were executed between the management and the C.B.A. in which the said clause either included or not the same has not been disclosed before me. In memorandum of understanding by which the management had accepted that the agreements of 1984, 1987 and 1993 shall be applicable and remain in force, but there is no mention of applicability of agreement executed in the year 1990, therefore, the management cannot be termed as bound by the agreement of 1990 as the same was expired and fresh agreements were executed between the management and the C.B.A. The important feature which has been noted by me is that the respondent management has taken legal objection that J&S Enterprises is a separate entity and has nothing to do with Jung Group or other establishments, but the memorandum of understanding clearly shows that the signatories have admitted and accepted all the establishment owned by one owner or Board of Directors by signing the same, therefore, such an objection is a lame excuse and appellants cannot be non-suited on this legal objection. As because the learned Labour Court or this Tribunal cannot go behind the plan of the management for modernization or development of technologies, therefore, in absence of any evidence the reason given by the management is endorsed to be genuine and as admitted by the appellants themselves that they were the juniors and the management is not bound by any agreement to adjust them in any other departments. In view of the above reasons, these appeals are dismissed and the order of the learned Labour Court is maintained, but the respondents are directed to calculate the dues of the appellant workers according to 7th Wage Board Award along with the benefits as admitted in the memorandum of understanding in view of the earlier agreements i.e. 1984, 1987 and 1993 as because the workers/appellants were in employment at that time, therefore, they are entitled for the said benefits which were allowed through the above said memorandum of settlement. Respondents further directed to release such amount within a period of thirty days. HBT/13/SLT Appeals dismissed.