1988 PLP 56 (PLC)

S.M. Kohistani for Respondents. Date of hearing: 24th February, 1988. This is an appeal filed by the appellants hotel against the impugned order, dated 15‑12‑1987, passed by the Sind Labour Court No. V at Karachi, who had allowed the grievance petition of the respondents directing their reinstatement in service under section 25‑A, I.R.O. 1969. 2. Briefly stated the facts of the case are that the respondents claimed to have been working as Room Bearers since the year 1986 and that on 16‑5‑1987, their services were terminated on the ground of alleged re‑organization of the appellants establishment and that when after about one month, they were offered fresh employment without continuity of their services, they had declined to do so, hence, being aggrieved they sent their grievance notice followed by the present grievance petition. 3. The appellants Hotel resisted the petitions on the ground that the services of the respondents were terminated as they had become surplus to their requirements on account of re‑organization of the establishment. They claimed that, however, fresh appointments were offered to the respondents to which they declined and that it was not correct that the service of the respondents were dispensed with mala fide intentions thus, they were not entitled to maintain their grievance petitions which were liable to be dismissed. 4. Both the parties 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 Mirza, the learned representative for the appellants Hotel and Mr. S.M. Kohistani, the learned counsel on behalf of the respondents and have also carefully perused the record and proceedings of the case as well as the written arguments submitted by both the parties. Mr. Masood Mirza, the learned representative for the appellants Hotel submitted that it is an admitted position by the respondents themselves in their cross‑examinations before the learned Lahore Court that when their services were terminated on 16 5‑1987 alongwith few other workers, both of them were junior most in their category. He also submitted that the respondents had also admitted the fact that after their termination of service no one was appointed by the appellants hotel in their places and that they had also grievance that when they were recalled for fresh appointment under the provisions of Standing Order 14, their past services were not taken into account from the date of their first appointments in the months of June‑July 1986. It was further pleaded by Mr. Masood Mirza, the learned representative that after refusal of fresh appointments by the present respondents, a fresh employment was also offered to other workers whose services were also terminated alongwith the present respondents, they had accepted the offer of the appellants Hotel and presently they are working. It was also pointed out by the appellants Hotel that the respondent had miserably failed to establish through a cogent evidence any allegation that their services were dispensed with as a measure of victimization on account of their alleged active participation in union activities, and further that none of them claimed to be an office‑bearer of the C.B.A. Union as there was only one union in the appellants establishment. It was further argued by Mr. Masood Mirza that the learned Labour Court was not correct m allowing the grievance petitions of the respondents only on the presumption that the respondents were offered fresh employments only after a month of their termination, therefore, it seemed to be mala fide. He further stressed that to prove this allegation, the burden was upon the respondents which they had failed to discharge. He therefore, pleaded that logically it is to be concluded that the offer of fresh employment was declined by the present respondents only because they were gainfully employed elsewhere and did not stand to lose any service benefit and it is also as admitted position in A the impunged order itself that no junior to the respondents was retained in service at the time of admitted retrenchment. I see much force in all these contentions of Mr. Masood Mirza, the learned representative for the appellants Hotel. 6. On the other hand Mr. S.M. Kohsitani, the learned Counsel for the respondent submitted that it was an admitted position on behalf of the appellants Hotel that the services of the respondents were transferable to Kababish Restaurant at Clifton, therefore, the respondents could have been transferred to that establishment instead of terminating their services which shows the mala fides. It was further argued by Mr. Kohistani that three workers of the category of respondents were still working on daily wages and that despite the fact that the appellants establishment was asked to produce the records of their employments the appellants hotel did not do so. I see no force in these arguments of S.M Kohistani, the learned Advocate for the respondents. It is an admitted position that the respondents were working as Room Bearers and not as Waiters, therefore the question of their transfer to the Kababish Restaurant as Waiters did not arise as' it was not the category of the respondents as Room Bearers, none was employed as Room Bearer and the plea that three waiters were working on Daily Wages had no relevancy with the admitted category of the respondents. Besides this, it is also an admitted position that the respondents were offered fresh employments as Room Bearers and when they had refused to accept this offer, the other persons who were also working as Room Bearers and were also terminated from service also with the present respondents had accepted the offer of the appellants Hotel and their fresh appointments were made. There is nothing on record to establish that there was any mala fides on the part of the appellants Hotel or that the respondents were made a victim of their alleged union's activities. In view of the above facts, record and the legal aspects, I would hold that the learned Labour Court was not correct in allowing the grievance petitions of the respondents, so that impugned order of the respondents under section 25‑A, I.R.O. 1969, would also stand dismissed. 7. For the reasons discussed by me above, 1 would set aside the impugned order and would allow the present appeal. The result would be that the grievance petitions of the respondents would also stand dismissed, A.E./1286/Lb.S Appeal allowed.