2018 PLP 7 (PLC N)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order dated 12th March, 2013, of the Sindh Labour Court No. 5, Karachi, dismissing his grievance application # 177/2007 for his reinstatement in service.

2. Briefly, the facts are that the appellant was appointed as waiter and worked as such from 19th May, 2002, to 23rd July, 2007, when his services were terminated on the ground that the period of his temporary employment was over.

3. According to the appellant, he was a permanent workman, engaged on a work of permanent nature, and his services were terminated because he had asked the respondent in writing to provide him legal rights under the labour laws and had sent copy of such application to the Labour Director, Sindh.

4. According to the respondent, the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not apply to clubs and that the services of the appellant, who was a contractual worker, were terminated because the period of his contract had expired and not because of his alleged demand of rights.

5. The Labour Court examined the appellant and Muhammad Farooq, Assistant General Manager of the respondent, and dismissed the grievance application on the ground that provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not apply to the respondent.

6. The definition of 'commercial establishment' under Section 2(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, expressly includes 'a club, a hotel, a restaurant' etc. In presence of the express statutory provision, there was no justification for the Labour Court to hold that the respondent was not 'commercial establishment'.

7. The Labour Court heavily relied upon a passage at page 125 in the book titled as 'Law of Industrial Relations in Pakistan' written by Shahid Anwar Bajwa and three judgments of the Lahore High Court reported as 2008 PLC 58, 1993 PLC 543 and 1989 PLC 760 holding that the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not apply to clubs.

8. The passage of the book, relied upon by the Labour Court, is not the opinion of the author but opinion expressed in the above judgments of Lahore High Court compiled by him. The author himself did not follow his book or those judgments, while deciding the case of Syed Haider Imam Rizvi v. 4th Sindh Labour Court, Karachi (2010 PLC 20) as Judge of the Sindh High Court. Neither the book nor the judgments of the Lahore High Court are binding, whereas the judgment of the Sindh High Court is binding under Article 201 of the Constitution.

9. In the case of Islamabad Club v. Punjab Labour Court No.2 etc. (PLD 1980 SC 307), the Supreme Court rejected objection regarding non-applicability of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, to Islamabad Club and confirmed the finding of the Lahore High Court that employees of the club were governed by the Ordinance and the Standing Orders framed thereunder.

10. In presence of the clear statutory definition of 'commercial establishment' and the judgments of the Supreme Court and the High Court of Sindh that provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, applied to clubs, the impugned order of the Labour Court cannot be maintained and is accordingly set aside.

11. The respondent could not rebut the documents produced by the appellant including his employment card and EOBI card. The employment card of the appellant, issued by the respondent, shows that he was appointed on 19th May, 2002. Normally, in a club, work of waiter is of permanent nature. It is not the case of the respondent that the appellant was appointed on any project of 'temporary nature likely to be finished within a period not exceeding nine months'.

12. Thus, the appellant, having been appointed against a permanent post on which he served for more than five years, was a permanent workman and his services could not be terminated on the ground that the period of his contract was over. It is also not the case of the respondent that the post, against which the appellant was appointed, had been abolished. Indeed, the respondent is a big establishment having more than 400 employees.

13. The appellant cannot be treated as a 'contract worker' within the meaning of Standing Order 1(a)(6)(g) because his remuneration was not to be calculated on 'piece rate basis'. According to the definition of 'contract worker' given under clause (g) of the Order, his remuneration must be calculated on 'piece rate basis' without which he cannot be termed as 'contract worker'. Even the letter of contract appointment, subsequently issued by the respondent on 1st October, 2006, as a device to deprive the appellant of his rights as permanent workman, shows that the appellant was appointed on 'salary basis' and not on 'piece rate basis'.

14. Standing Order 12(3) provides that services of a workman (without distinction of class) shall not be terminated except by an order in writing which shall explicitly state the reason for the action taken and in case a workman is aggrieved by the termination, he may approach the Labour Court for the redressal of his grievance, meaning thereby that the reasons should be fair enough to satisfy the Court that it was not colourable exercise of the powers or mala fide.

15. The expressions 'service no more required', 'found surplus', and 'termination of temporary service' are held, by the superior Courts, to be not 'explicit reasons for the action taken' as required by the Standing Order 12(3). For this, reference may be made to the precedents reported as 1990 PLC (C.S.) 385 Karachi, 1992 PLC 1028 Karachi, 2000 PLC 325 Karachi, 2006 PLC 102 Karachi, 2007 PLC 83 Karachi, and 2009 PLC 50 Lahore.

16. Since the respondent has not stated explicit reasons as required by Order 12(3) for terminating services of the appellant, his removal is wrongful and the action cannot be sustained. Appellant's claim, supported by his statement on oath that after termination of his service he could not employ himself gainfully and remained jobless, has not been rebutted by the respondent by proving positively that he was gainfully employed.

17. In view of the abovementioned facts and circumstances of the case, the impugned order is set aside, the appeal and consequently the grievance application are allowed and the respondent is directed to reinstate the appellant in service with full back benefits immediately. HBT/4/SLT Appeal allowed.