1991 PLP 882 (PLC(CS))

4. It will be pertinent to reproduce the termination order, which is Exh. `A' to the grievance petition, as under: -- "You had been working as an Operator on M-3 Cigarette Packing Machine. You are well aware that the said Machine had become obsolete and management decided to shut down. Due to the non-operation of the said M-3 Cigarette Packing Machine for the last seven and half months, you have become surplus to our requirement. Hence your services are no longer required by us, and therefore, you are relieved from service with immediate effect. You will be paid one-month's salary in lieu of notice, you may collect your legal dues from our Accounts Department on any day during office hours. For SOUVENIR TOBACCO COMPANY LIMITED (Sd.) (S.A. SALIM) Factory Manager."

5. The appellants have not produced the appointment letter of the respondent to show that he was employed for operating only M-3 Cigarette Packing Machine. The appellants' witness SA. Salim has admitted in the cross ?examination that it was correct that there was packing machine also where applicant could work but there was no other workman to work there on that packing machine. The mere fact that Packing Machine M-3 had become inoperative would not have made the respondent surplus or redundant, because there were other machines also where he could work. In fact, according to this witness, the real reason for the removal of the respondent was that there was no other workman to work on the Packing Machine with the respondent. I need not go into the question whether this reason that there was no other worker to work with the respondent is genuine or not because that was not the reason on which the respondent was removed from service. It is contended by Mr. Syed Zamirul Hassan that the order of termination of service complied with the provisions of Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance') as the order is in writing showing explicit reason for the removal from service of the appellant. The requirement of this Standing Order is not only that some reason should be shown but reasons should be valid which could stand in the Court of law as in the same Standing Order the workman has also been given right to challenge this order under section 25-A of I.R.O., 1969. I have already pointed that there is nothing on record to show that the respondent was employed for working on Packing Machine No. M-3 and that admittedly there were other Packing Machines also on which the respondent could have worked. As such reason of termination shown in the termination order is not a valid reason to justify termination of services of the respondent. This order cannot be said to be strictly in conformity with the spirit and requirement of Standing Order 12(3).

6. Admittedly at the time when the services of the respondent were terminated he was only workman remaining with the appellant and by termination of his service `cent per cent' workmen of the appellant establishment would be deemed to have been terminated. The learned counsel for the appellant has relied upon the decision of Supreme Court in the case of South British Insurance Employees' Union v. Sindh Labour Court No. 4 and others 1975 SCMR

49. The learned Labour Court has distinguished the instant case from the law laid down by their Lordships in the aforesaid reported case. The reported case was with regard to the closure of the establishment before the amendment of Standing Order 11-A under which even termination of employment of more than fifty per cent of workmen was barred without the prior permission of Labour Court. The learned Labour Court has relied upon the decision of this Tribunal in the case of Tauseef-un-Nabi v. Metal Containers Limited Appeal No. KAR-242 of 1989, decided on 6-3-1990 (1991 PLC 305) wherein authority of their Lordships of Supreme Court was discussed and distinguished from the case wherein services of more than fifty per cent workmen were terminated. However, I need not discuss this point or the other issues raised by the appellants because termination order itself was violative of Standing Order 12(3). I need not discuss case-law produced by the parties on these issues.

7. Mr. Syed Zamirul Hassan relied upon the decision of Division Bench of Sindh High Court Karachi in the case of Muhammad Seerajuddin v. Labour Appellate Tribunal and others 1983 PLC 1286 wherein it is held that `the employer was free to make re-organisation as was necessary and in consequence thereof retrench as many members of establishment as found redundant'. There is no dispute with regard to law laid down in the above case. However, a bare reading of Standing Order 12(3) would show that even in the case of retrenchment an order in accordance with Standing Order 12(3) is mandatory. This order of termination is not tenable. I see no merit in Appeal No. KAR-270 of 1990 filed by the appellants and dismiss the same.

8. It leaves us with the question of amount of back benefits. The learned Labour Court has pointed out that there was no evidence that whether during the intervening period the respondent was gainfully employed or not. Therefore, I see no reason to interfere with his decision to award the respondent with fifty per cent back benefits. Before learned Labour Court it was submitted that during the pendency of proceedings the Labour Court had permitted appellants to close down establishment and learned Labour Court has rightly pointed out that in such case law will take its own course.

9. In view of the above circumstances Appeal No. KAR-272 of 1990 filed by the respondent is also dismissed. H.B.T./1928/Lb. S?????????????????????????????????????? ???????????????????????????????????????????Order accordingly.