1991 PLP 455 (PLC)

4. I have heard Mr. Raees M. Mushtaq, learned Advocate for the appellants and Mr. Bashir Awan, learned counsel for the respondent and have also gone through the record and proceedings of the case.

5. Apart from the evidence of the respondent, who claims to have worked continuously since 1982 the respondent also examined one Muhammad Usman, a time‑keeper of the appellants. Witness Muhammad Usman had produced the attendance registers which shows the attendance of the respondent from 2‑5‑1984 to 24‑9‑1984. He admits that the register Exh. A/4 does not show that the services of the respondent were terminated but it only shows "off season closed". He had produced another register as Exh. A/5 which is from 27‑9‑1984 to 12‑4‑1985. It shows that the respondent attended the factory on 29th and 30th September, 1984 and entire months of October, November and December, 1984. It also shows that the respondent attended the factory of the appellants from 11‑1‑1985 to 31‑1‑1985 and for the entire month.3 of February and March and from 1‑4‑1985 to 12‑4‑

985. He has also produced another register Exh. A/6 which is from 2‑5‑1985 to 22‑9‑1985 which shows that the respondent attended the factory of the appellant from 2‑5‑1985 to 30‑5‑1985 and for the entire months of June, July and August, 1985. He also attended from 1‑9‑1985 to 22‑9‑1985. He has produced another register which is from 18‑9‑1985 to 14‑4‑1986 Exh. A/7 which shows that the respondent attended the factory from 24‑9‑1985 to 30‑9‑1985 and for the entire months of October, November and December, 1985 and also for the months of January, February, 1986 and from 1‑3‑1986 to 8‑3‑1986 when his services were terminated on 6‑3‑1986. This register clearly shows that the respondent had been working from 2‑5‑1984 right upto when his services were terminated except for a break of a few dates for which it is not disclosed in the attendence register, that ‑his services were ever terminated. Major (Rtd.) Muhammad Aslant, Personnel Manager of the appellants was examined, who states that `Crushing Season' starts from September to March or April and that the respondent worked temporarily during the `Crushing Season'. As pointed out above evidence of Muhammad Usman clearly shows that the respondent was working even after `Crushing Season' viz. in the months of June, July and August, 1985. Major (Rtd.) Muhammad Aslam further admitted that during the `Off Season' the factory is dismantelled and according to its requirement welding work is undertaken.

6. The appellants claim that the respondent had been appointed temporarily for intermittent periods whenever his services were required, but no appointment order or termination order had been produced. Issuance of `appointment order' and the `termination order' is compulsory under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which is admittedly applicable to the establishment of the appellants. Only one `appointment order' has been produced which is dated 24‑9‑1985 Exh. R/1. The alleged signature of respondent on that appointment order is not admitted and this signature has not been proved by the appellants. The evidence on record shows that the respondent had been working from 2‑5‑1985 upto 22‑9‑1985 thus there is only break of one day for which also no termination order had been produced. It may be pointed out that Major (Rtd.) Muhammad Aslam has described this appointment order as termination order. It may also be pointed out that this appointment order is dated 23‑9‑1985, the day for which no entry of attendance appears in the register with regard to respondent. This `appointment order' does not inspire any confidence.

7. The establishment of the appellants have admittedly three categories of employees viz. `permanent', `seasonal' and `temporary'. The appellants do not claim that the respondent was, a `Seasonal' employee. Therefore, the only question that requires consideration is whether he was `permanent' or `temporary' employee. A `temporary' employee has been defined in Standing Order No. 1 as a `workman engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months': The respondent claimed to be work as `Welder'. The suggestion in the cross examination that he worked as Welder for one season only is denied by him. Attendance Registers produced by Mr. Muhammad Usman show that the respondent worked in the Workshop Section from 2‑5‑1985 to 22‑9‑1985. Admittedly Welding is part of Workshop. Major (Rtd.) Muhammad Aslam states that applicant was a temporary general duty worker but no appointment order had been produced to show the nature of his duties. In the Termination Order Exh. A/1 he has been shown to be G.D Labour in Welding Section. Under the circumstances the contention of the respondent that he was working as Welder appears to be correct.

8. From the evidence discussed in para. 5 ante and from the registers of the appellants it appears that the respondent worked from 2‑5‑1984 to 24‑9‑1984. There is a break of 5 days. Thereafter his attendance again is shown from 29‑9 1984 to 12‑4‑1985. Again there is a break of 19 days. Then his attendance is shown from 2‑5‑1985 to 22‑9‑1985. After a break of one day his service is shown from 24‑9‑1985 till his services were terminated on 6‑3‑1986. Thus, in a period of nearly 22 months service there are three breaks of 5 days, 19 days and one day. As pointed out above evidence produced does not show that his services were terminated during this period of breaks and that he was re‑appointed again. There is only one `appointment order' produced which does not inspire any confidence. Non‑production of this evidence would raise presumption against the appellants. There is no reliable evidence to show that the post against which the respondent had been working was of `temporary nature' likely to last for not more than nine months. Major (Rtd.) Muhammad Aslam has admitted that `Welding Section' is part of Workshop. Though he denied that Welding work is f done in `Off Season.' As pointed out he has admitted that during the `Off Season' factory is dismantelled and according to requirement Welding work is done. It may also be pointed out that admittedly there is only one entry with regard to the termination of service in the register which according to Mr. Muhammad Usman is recorded after 8‑3‑1986. The evidence and circumstances support the contention of the respondent that he has been working continuously at least from 2‑5‑1984 to 8‑3‑1986. He, therefore, cannot be considered as `temporary workman' as defined in Standing Order No. I. It is not claimed by the appellants that the respondent was a `Seasonal Worker' or `Badli Worker' or an `Apprentice' therefore on his first appointment he would be considered as `Probationer' and after the three months' satisfactory service he would be considered as `Permanent Workman' as defined in Standing Order 1.

9. It is contended by Mr. Raees M. Mushtaq that even if the respondent is considered as `Permanent Workman' still the appellants have right to terminate his services under Standing Order 12(3) and that the compliance of Standing Order 12(3) is made by issuing order of termination in writing which is ‑Exh. A/1. It read as under:‑‑ "Subject: Termination of Service Temporary : employee Mr. Liaqut Ali, GD Labour Staff No. 9869. You were employed as a temporary worker since the job was of a temporary nature and is finished as such your services are no longer required. You are, therefore, terminated with immediate effect. You may collect your dues if any from Accounts Department during working hours." This letter, no doubt shows the reason for the termination of service but this reason that he was `temporary workman' has not been substantiated and, therefore, cannot be considered as a `reasonable' or `valid' reason. for termination of service as required under Standing Order 12(3).

10. Mr. Raees M. Mushtaq, learned counsel for the appellants, has relied upon the decision of this Tribunal in the case of Zahir Shah v. Hussain Taxtile Mills Limited 1980 PLC 353 wherein it has been held that `as in the order of termination of service the services of the appellant had been terminated as no longer required it would be a case of termination of service simpliciter and not for reason of misconduct'. On the other hand, Mr. Bashir Awan, learned Advocate for the respondent, has relied upon an unreported decision of learned Division Bench of Sindh High Court, Hyderabad in Constitution Petition No. D‑31 of 1985 in the case of Ghulam Ahmad v. Sindh Labour Appellate Tribunal and others, decided on 31-10‑1989 (1990 P L C (C.S.) 385). In this case their Lordships have held that mere use of words `services no more required' does not fulfil the requirement of Standing Order 12(3 j as such termination order was illegal.

11. As pointed out above services of the respondent were terminated by termination order Exh. A/1 but reason for termination has been shown to be that he was temporary employee which reason has been disbelieved by the learned Labour Court and which finding appears to be correct. Therefore, such an order of dismissal is not maintainable and has rightly been set aside by the learned Labour Court.

12. The appeal is therefore, dismissed. M.Y.H./1624/Lb.S Appeal dismissed.