1990PLC213 (PLP)

The petitioner had been employed by the respondent No.l as Empty Godown Supervisor to maintain the record of Empty Bottles. He; also used to perform duties as a workman as and when required. However, by an order in writing dated 24‑11‑1985, the services of the petitioner were terminated by the respondent No.

1. According to the reasons stated by the respondent, the Factory was to remain closed due to off season and the services of the petitioner were no longer required. Aggrieved by such action, the petitioner filed a grievance petition under Section 25‑A of the I.R.O. before the learned Sindh Labour Court No. VI, Hyderabad which held that the petitioner was a permanent workman having worked for more than three months with the respondent No.

1. It also found that the job of the petitioner was of a permanent nature. It was also not impressed by the plea raised by the respondent No.l that the petitioner had become surplus as according to it, the establishment of the respondent No.l was doing business round the year. Consequently, the petitioner was reinstated in service with full back benefits. The respondent No.l filed an appeal before the learned Appellate Tribunal which has set aside the order of the learned Labour Court and upheld that of the respondent No.l. After going through the decision of the learned Appellate Tribunal we find that the same is not open to exception. Even if, it is accepted that the petitioner was a permanent workman or that the nature of his job was not temporary, the same would still fail to advance the petitioner's case as the impugned order shows that the petitioner had failed to establish that the action of the respondent No.l was tainted with mala fides or that the petitioner had been victimised or singled out for such action or that the juniors had been retained but he was ousted. Standing Order 12 (3) only imposes an obligation upon the employer not to remove, retrench, discharge or dismiss from service any workman, except by an order in writing which shall explicitly state the reasons for the action taken. The order issued by the employer terminating the petitioner's services in no way fails to meet the above requirements as it has bee n clearly stated that the Factory was being closed due to off‑season and therefore the services of the petitioner were not required by the employer. This is a case of termination simpliciter and in that case the onus was clearly on the petitioner to establish mala fides as pointed out by the learned Appellate Tribunal. The petitioner appears to have failed to discharge such onus, the only plea raised by him in this respect being that the factory of the respondent No.l was not a seasonal factory and the job assigned to him was of a permanent nature. Be that as it may, but the decision of the respondent No.l that the petitioner had become surplus cannot be questioned merely on that account, unless it is shown that the exercise of the right by the respondent No.1 was colourable or was in contravention of the law. We are, therefore, of the opinion that the learned Appellate Tribunal has rightly set aside the order of the learned Labour Court, which has failed to consider this aspect of the case. No doubt, the learned Appellate Tribunal has also held that the petitioner was not a workman but even if such a finding is not accepted by us on the basis of the evidence discussed in the two orders of the learned Tribunal below, the same would hardly have any material bearing on the result of the other finding arrived at by the learned Appellate Tribunal. In the result, we find no reason to interfere with the decision of the learned Appellate Tribunal and this petition is dismissed in limine. MA.No. 152/89 has become infructuous and the same is also dismissed. H.B.T./A/672/K Petition dismissed.