1989 PLP 850 (PLC(CS))

2. The brief facts leading to this appeal as alleged by the appellant are that he was employed by the respondent after death of his father in January, 1986. while, working in the factory of the respondents the appellant met with an accident on 15‑3‑1987 and, therefore he was referred to the Medical Officer under whose treatment he remained till 23‑5‑1987 and when he reported for duty he was informed that his services were terminated orally without any written order. After serving the grievance notice upon the respondent he filed grievance pet it 4in before the Labour Court.

3. The respondent resisted the grievance petition on the ground that the appellant was appointed as temporary or badli worker from time to time for fixed period under various authorities and was paid off after the expiry of the said period. He is said to have been appointed on 15‑2‑1987 vide Order R/52 for one month but on 14‑3‑1987 he met with an accident. Out of courtesy, as he had met with an accident, the period of his service was extended upto 12‑4‑1987 and he was referred to the doctor. On 16‑4‑1987 he was again hired for one month for gardening purpose vide engagement slip Exh. R/62 but he reported sick. He was reported fit on 14‑5‑1987, when hr. was paid off from that date.

4. The main contention of Mr. Wahid Bux, the learned representative for the appellant is that the appellant had been working continuously and was not provided with any appointment letter or termination order at any stage. It is further entitled that lie was declared fit for duty on 23‑5‑1987 vide Certificate Ex, A/2 It is further submitted even if his services are counted from 14‑2‑198'7 still by the time appellant was declared fit and reported for duty on 23‑5‑1987 he was in service of the respondent for more than three months and as such he would be deemed to have been confirmed.

5. Standing Order 2‑A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance) provides:‑‑ 2‑A. Every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service." Standing Order 12(3) provides:‑‑ The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken

6. It may be noted that in both the Standing Orders word used is "workman" which includes temporary as well as badli workman. It was, therefore, incumbent upon the respondent to provide the appointment order to the respondent and also the respondent could not have terminated the services of the appellant without any order to writing explicitly showing reasons of termination of his services.

7. Various setters authorizing the appointment of the appellant from time to time have been produced by the respondents. None of these authority letters bear the signature of the appellant. In his affidavit‑in‑evidence the appellant has categorically stated that he was not provided with any letter of appointment. In his cross‑examination the witness of the respondent, Syed Nawab Alam, Deputy Manager, has denied the suggestion that engagement authorities produced in the Court were never provided to the appellant and have been prepared with mala fide intention after removal of the appellant and filing of the case. The appellant has stated on oath that he was not provided with these alleged letters of appointment. As pointed out above these letters of appointment do not bear the signature of the appellant. No witness has been produced by the respondent who could state that he himself delivered the letters of appointment to the appellant. Under the circumstances his evidence on oath cannot be disbelieved. Admittedly there is no order in writing terminating his services finally or from time to time. Certain payment vouchers have been produced by the respondent which admittedly bear the signatures of the appellant showing the receipt of payments mentioned therein. However, such vouchers or payment slips could not be considered as sufficient compliance of the mandatory provision of Standing Order 12(3). These vouchers or payment slips do not show the explicit reason of the termination of services of the appellant. It is submitted by the learned counsel for the respondents that when there is fixed period of appointment no termination order is necessary as the services of the employee stand terminated on expiry of the period mentioned in the appointment order.

9. To appreciate this argument, it is pertinent to consider a few documents produced by the respondents. Exh. R/52, dated 15‑2‑1987, shows that the appellant was employed in supply and disposal section for one month against the vacancy fallen vacant due to gardening and plantation. Exh. R/56 is accident slip, dated 14‑3‑1987, signed by the respondents as well as appellant. Exhs. R/57 and R/58 are sickness certificates recommending leave from 15‑3‑1987 to 23‑3‑1987. Exh. R/59 snows that 15 days extension was granted to the appellant. Exh. R/60 shows that further extension was granted for 12 days from 1‑4‑1987 to 12‑4‑1987. Exh. R/61 is a fitness certificate showing that the appellant remained under treatment from 15‑3‑1987 to 12‑4‑1987 and was certified to be fit to perform his duty. Exh‑ R X62 is letter, dated 16‑4‑1987 whereby the appellant was appointed as temporary worker in Supply and Disposal Section for one month for garden work. Exh. R/66 shows the appellant to be under treatment of the Medical Officer of Dispensary of the respondent from 17‑4‑1987 to 14‑5‑1987 and was declared fit to perform his normal duty. It may be pointed out that none of these appointment or extension orders bear the signature of the appellant nor it is suggested to him that the same bear his signature. Exh. R/62 suggests fresh appointment of the appellant from 16‑4‑1987 implying thereby that services of the appellant were terminated after last extension expired on 12‑4‑1987 vide Exh. R/60. There is no termination order in writing after this date. Similarly there is no termination order as required under Standing Order 12(3) after his alleged appointment vide Exh. R/62. According to the respondent the services of the appellant were terminated on 14‑5‑1987. The appellant was allegedly paid off for the period from 15‑3‑1987 to 11‑4‑1987 and from 17‑4‑1987 to 14‑5‑1987 vide Exhs. R/68 and R/69 which both are dated 7‑6‑1987. The fact that the appellant was not paid off on the dates when his services are alleged to have been terminated would show that he was not present on those dates and, therefore, even the alleged order of termination of service could not have been communicated to him even orally and consequently even the order of reappointment, dated 16‑4‑1987, could not have been communicated to him. This also supports the contention of the appellant that he was tinder treatment upto 25‑3‑1987 and when he reported for duty he was orally informed that his services had been terminated.

10. It is submitted by Mr. Wahid Bux, learned representative fort' appellant that the appellant was in continuous service from January 1986 which is supported from the fact that there is no order of termination after the alleged temporary appointments from time to time, and therefore, the appellant would be deemed to be permanent worker as it has not come on record that the employment against which the appellant was employed was of temporary nature likely to finish after nine month.

11. He has relied upon 1987 P L C 62 wherein this Tribunal has held that continuance of workmen in employment would suggest that they were permanent employees, only their employment was renewed after each three months, to circumvent enquiry, if possible. The grievance petition of the workman was allowed as the receipt of termination letter was denied by the workman and service of termination letter was not proved by the employer.

12. In the case of Allah Ditta v. Punjab Labour Appellate Tribunal reported in P L D 1985 Lah. 407, a Division Bench of the Lahore High Court held that order of termination without its communication by the employer was ineffective in terminating services of employee. It was observed by their Lordships "that if the order of termination was not to be communicated, there was no reason to Provide for giving reasons and secondly, the second sentence of the provision that the workman may have recourse under section 25-A of the Industrial Relations Ordinance 1969 would be rendered redundant because without an order of termination being given to him, how could a workman go to a Court and ask for setting aside something which is not there." In the case reported as 1984 P L C the learned Labour Appellate Tribunal Punjab held the order of termination to be illegal being in violation of the provisions of Standing Order 12(3) as it was not in writing giving explicit reasons. In the case reported in 1984 P L C 959 the learned Punjab Labour Appellate Tribunal observed that Standing Order 12(3) applies to every kind of workman, even in the case of badli worker passing of order of termination giving reasons was necessary.

13. The learned counsel for the respondent relied upon the case of Pakistan International Airlines v. Sind Labour Court and others P L D 1980 S C 323 to show that the mere fact that the workman had worked for more than 3 months would not confer upon him status of permanent workman. However, facts of the reported case are distinguishable from the facts of the present case. In the reported case the workman was employed by the employer to supervise the work of contractor which according to written contract was to be finished within 15 months. Therefore, their Lordships held that such workman employed in a job intended to last for limited time only was not a permanent workman. In the instant case there is no evidence that the appellant was employed against temporary work though his employment is shown to be temporary. In 1983 P L C 959 in the case of Gul Muhammad v. Executive Engineer, Begari Sind Feeder Division, Kashmore this Tribunal had held that termination order in writing with explicit reasons was requirement in case of temporary workman also. In the case of Abdul Majeed v. Shahbaz Silk Factory 1980 P L C 349 this Tribunal held that appointment order was to be made in writing and failure to make written order creates liability to punishment, and in the absence of written order contention of workman with regard to date of appointment was upheld. In the instant case the respondent produced certain documents purporting to be appointment orders. There is no evidence to show that these appointment orders were provided to the appellant as required under Standing Order 2‑A and the possibility that they were manipulated afterwards, as alleged by the appellant, cannot be ruled out.

14. Considering all the facts and law discussed above in view of the fact that no written order of appointment was provided to the appellant nor there was any order in writing showing explicit reasons for termination of service of the appellant, the contention of the appellant that he had remained in service of the respondent for more than three months appears to have force. As already pointed out there is no evidence to show that the appellant was appointed against work which was temporary in nature likely to be finished within nine months. He was working for gardening and plantation in the Supply and Disposal Department. It is not alleged that these departments or garden no more exist or have been wound up. Under the circumstances the appellant had acquired the status of permanent workman.

15. The learned Labour Court has based his conclusion on certain admissions of the appellant in the cross‑examination. I have gone through the evidence and find that in the cross‑examination the appellant has been making conflicting statements. He has made certain admissions but at the same time again he has denied those suggestions. The appellant is an uneducated workman and this fact would have to be kept in view while assessing his evidence. The Standing Orders require every appointment or termination in writing to be communicated to the workman, non‑compliance of such mandatory provision would not only make the employer liable to punishment but also adverse inference would be drawn against the employer in spite of conflicting statements and admissions of the workman.

16. Accordingly allow the appeal, set aside the impugned order of the learned Labour Court. The order of termination of the services of the appellant is set aside and he is ordered to be reinstated in service with full back benefits. This decision to be implemented within one month from the date of this decision. H.B.T./1391 /Lb. S Appeal allowed.