1976 PLP 484 (PLC)

S. O. 12(3) - Retrenchment - Expression "an order in writing which shall explicitly state the reason for action taken"-Meaning Management bound to give satisfactory reason self-evident enough to show on fairly conclusive basis that termination was bona fide and unexceptionable-Permanent workman with 8 years, service charge sheeted for absence without leave and enquiry dropped for want of sufficient evidence to support charge-Service terminated soon after by way of retrenchment-Management in circumstances, held, bound to prove bona fides of retrenchment order-Management failing to prove that retrenchment was decided under competent sanction of mills Management-Permanent job, held, could not be done away unless its non-requirement was self-evident and inevitable due to special circumstances directly proved on record and comprehensively shown in retrenchment order-Termination of service, in circumstances, set aside with full back benefits. Abdul Rehman Qureshi for Petitioner, Ch. Imttaz Ahmad for Respondent Muhammad Siddiq, ex-Supervisor, Abbasi Textile Mills Limited, Rahimyar Khan, has filed a petiton under section 25-A of the I. R. O. 1969, for his re-instatement by setting aside the order of his termination dated 29-10-75. It was stated in the petition that he has eight years permanent service to his credit without having given any cause of complaint to the respondent Management during the period of his employment The General Manager of the Mills with a view to recruiting the workmen of his own choice planned a retrenchment of old workers and for that purpose obtained resignations from a number of workers under duress and terminated a number of other workers. The petitioner was previously charge-sheeted on 25-10-75 against baseless allegations of misconduct, but as petitioner submitted a reasonable reply to the charge-sheet, the Management failed to dispense with his services on the ground of misconduct. However, the respondent-Management in order to get rid of the petitioner passed an order of retrenchment against him on 29-10-75, which was neither a bona fide order nor based on any lawful justification. It was further stated that the petitoner s Services were terminated out of victimization alongwith a number of other workers and that his grievance notice dated 25-10-75 in this behalf was not taken into consideration for his re-instatement. In the written statement filed on behalf of the respondent-Management it was pleaded that a retrenchment of workmen including the petitioner was made out of financial stringency and not for any mala fide intention. It was maintained that the order of retrenchment was bona fide and was necessitated for decreasing the expenses of the Mills. The petitioner examined himself in support of the petition apart from tendering in evidence charge-sheet Exh. P. I, reply to the charge-sheet Exh. P. 2, retrenchment orders Exh. P. 3 and the reply to the grievance notice Exh. P. 4; In rebuttal the respondent-Management examined Mr. Noor Ullah Accountant (R.. W. 1) and Muhammad Aslam Head Clerk (R. W. 2). The petitioner stated that instead of making any inquiry against him on the charge-sheet served on him, he was preferred to be placed under retrenchment vide order dated 29-10-75 and that some of the wokers Junior to him in service are still working in the mills. In the cross-examination he stated that Muhammad Siddiq Asif, Supervisor, Rahmat Ali, Supervisor, and one more person whose name he did not know were junior to him and were working in the mills. He further stated that he did not know if the Mills has suffered the loss of about 31 lads of rupees which was the cause of retrenchment. Mr. Noor-ullah, Accountant, stated that in the last financial year ending 30th September, 1975, the respondent-Management suffered a loss of Rs. 30,98,000 which is the cause of the retrenchment. In cross-examination he stated that the schedule of the profit and loss of the mills was prepared by him which has not so far been testified by the Income-tax Department or the Labour Department. He admitted that the respondent-Mills got profit in his business in 1973, but could not say whether the Management due to any financial loss made any retrenchment previously. Muhammad Aslam, Head Clerk, stated that there were three supervisors in the Quality Process Section, all of whom have been retrenched in pursuance of the economy drive and that the Management has appointed some-foreign expert for the supervision of this section. In the cross-examination he stated that Muhammad Siddiq, Asif and Rahmat Ali workmen are working on the production side and they are not junior to the petitioner, though he had not brought the service books of these workers as they were not called by the Court. The petition was originally filed in the Junior Labour Court, Rahim Yar Khan, and was transferred to this Court by the force of law on the abolition of the Junior Labour Courts under the Labour Laws -r Amendments Ordinance, 1975, and the parties evidence was recorded by me. In view of the contentions of the parties as revealed through their pleadings and the evidence referred to above, the point for determination is whether the retrenchment of the petitioner was bona fide and was lawfully justified. The fact has not been controverted that the petitioner has been a permanent workman of the mills, and was served with a charge-sheet Exh. P. 1, regarding his absence from duty without leave on 23-10-75. It has also not been denied that only six days later, that is, on 29-10-75 the petitioner was terminated on account of retrenchment vide order Exh. P. 3. In such circumstances it became incumbent on the respondent-Management to prove the bona fides of 4 the order of retrenchment. But it has failed to show that the matter of retrenchment was decided under competent sanction of the mills Management to effect the retrenchment of the permanent workers including the petitioner. No doubt it was stated in the retrenchment order Exh. P. 3 that consequent upon the abolition of the posts of supervisors, the petitioner became surplus among the workers of the mills, but merely stating so cannot be said to be final if the worker has challenged the bona fides of the order. Under Standing Order 12 (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter mentioned as Standing Orders Ordinance, the services of a workman cannot be terminated through retrenchment except by any order in writing which shall explicitly state the reason for the action taken. This subsection formerly did not envisage the obligation of giving explicit reason which has been provided for through a special amendment therein. Accordingly, it is to be taken into mind what is really meant by the expression," an order in writing which shall explicitly state the B reason for the action taken." The acceptable interpretation would that the Management is bound to give satisfactory reason self-evident enough to show on fairly conclusive basis that the termination was bona fide and un-exceptionable in regard to its genuineness and the genuineness of any such order on being challenged by the worker should be proved by the Management. Because otherwise a worker who could not be removed from service on the charge of misconduct through regular enquiry could easily be ousted from service under the pretext of retrenchment. In other words the weapon of retrenchment could be used to nullify the procedure of regular enquiry in the cases of alleged misconduct and innocent workers could be victimised under the cloak of termination by retrenchment. This being so, the expression,' an order in writing which shall explicitly state the reason for the action taken," can be given no meaning other than what can clearly be termed to be self-evident bona fide order of retrenchment. The respondent-Management in the present case has, however, failed to prove that the retrenchment in question went through due official consideration and discussed in its true perspective before putting the same into effect. The Management failed to bring the requisite documentary proof in this behalf so as to prove the genuineness or the bona fides of the retrenchment order passed against the petitioner. The petitioner admittedly has served the Management for a pretty long time of about eight years as a permanent worker and as such he could not be suddenly terminated while being under an enquiry of misconduct without a convincing proof of the non-requirement of the job held by him. The post of Supervisor in the spinning department which was lastly held by the petitioner is a permanent job by its very nature and cannot ordinarily be done away within any factory of the size of the respondent-Mills unless its non requirement is self-evident and inevitable due to the special circumstances directly proved on record and comprehensively shown in the very retrenchment order as contemplated by subsection (3) of the Standing Order 12 of the Standing Orders Ordinance, Consequently the termination of the petitioner cannot be said to have been made on a valid basis through a self-evident or explicit order of retrenchment, His petition therefore being accepted, he is directed to be re-instated in service with all back benefits within a period of, seven days. The file may be consigned.