1992 PLP 284 (PLC)

"Subject:- TERMINATION OF SERVICE The management has decided that your services are no longer required with effect from 14th December, 1983. (In the case of Amir Abdullah the date is 17th December, 1983). Please return your Airport Entry Pass, Apron, Driving Permit, Shaheen Identity Card, Uniform items and other service items issued to you by the organization before clearance of your dues."

2. According to the petitioner, services of respondents Nos.2 and 3 were terminated pursuant to the powers given to the petitioner by the aforesaid Notification dated 20-6-1983 exempting the petitioner from the provisions of Standing Orders 12 and 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

3. It appears that on 14-12-1983, the employees of the petitioner formed a trade union and made an application to the Joint Labour Directorate Malir Karachi for registration of the union and also informing the names of the office-bearers of the union to the petitioner. Respondent No.3 Amir Abdullah was shown as Vice-President of the union and respondent No.2 Ghulam Shabbir Usmani as General Secretary of the union. According to the private respondents, the letter giving information about the making of the said application to the Labour Directorate and intimation of the names of the office-bearers was attempted to be served by the respondents on the petitioner on 14-12-1983 but the management refused to receive the letter whereupon the letter was sent by post. According to the petitioner, no intimation was given to the management on 14-12-1983 and they received the letter for the first time on 15-12-1983.

4. As observed, services of the private respondents were terminated and being aggrieved respondents Nos.2 and 3 filed applications under section 25-A of the Industrial Relations Ordinance, 1969 before the Sindh Labour Court No. IV, Karachi. The applications were resisted by the petitioner and after recording evidence of the parties, the Labour Court relying upon the Notification dated 20-6-1983 held that services of respondents Nos.2 and 3 could be terminated and dismissed the applications by orders dated 6-2-1985 and 5-3-1985. Being aggrieved, respondents Nos.2 and 3 filed appeals before the Sindh Labour Tribunal under section 37 of the Industrial Relations Ordinance, 1969. By a consolidated order dated 31-5-1986, the Tribunal allowed the appeals holding that the petitioner had contravened section 8-A of the I.R.O., 1969 and that termination of the services was mala fide as the petitioner knew of the formation of the union of which the respondents Nos.2 and 3 were General Secretary and Vice-President respectively and their termination amounted to victimization and, therefore, mala fide. The Sindh Labour Appellate Tribunal reinstated respondents Nos.2 and 3 awarding them 25% back benefits. The petitioner has challenged the decision of the Sindh Labour Appellate Tribunal. We had heard Mr. Naimur Rehman, learned counsel for the petitioner, and respondents Nos.2 and 3 who had appeared in person. Mr. Syed Sarfaraz Ahmed, learned AA.-G. had appeared for the Tribunal. On conclusion of the arguments on 2-9-1991, by a short order, we dismissed the petition with no order as to costs. Reasons for dismissal of the petition are contained in this judgment.

5. Under Standing Order 12 contained in the Schedule to the West Pakistan Standing Orders Ordinance No.VI of 1968, certain restrictions are placed on the employer regarding termination of services of workmen employed in their establishment and the manner for termination of employment has also been laid down. Under clause (5) of Standing Order 12, it is provided that services of permanent or temporary workmen shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order

15. Standing Order 15 relates to punishment which can be given to the workmen and also defines misconduct. Section 8 oil the Ordinance of 1968 is as follows:- "

8. Power to exempt.

Government may, subject to such conditions as it thinks 6t to impose, by notification in the official Gazette, exempt any industrial or commercial establishment or class of such establishments from all or any of the provisions of this Ordinance." As observed, pursuant to the powers given by section 8, Sindh Government had issued the Notification dated 20-6-1983 exempting the petitioner from the provisions of Standing Orders 12 and 15 for a period of 6 months (expiring on 20-12-1983). According to the petitioner, before the expiry of the exemption period on 20-12-1983, the petitioner terminated the services of respondent No.2 on 14-12-1983 and of respondent No.3 on 17-12-1983. The case of the respondents has been that the termination was mala fide as the management having come to know that an application had been made to the Labour Director4te for registration of the union on 14-12-1983 acted immediately and terminated the services of the respondents on 14-12-1983 and 17-12-1983. Admittedly, when the services of respondents were terminated petitioners were enjoying exemption from operation of Standing Orders 12 and 15 in view of the aforesaid Notification dated 20-6-1983 issued under section '8 of the Ordinance, 1968. However, under section 8-A of the Industrial Relations Ordinance, 1969, limitations have been placed upon the employer on dispensing with the services of officers of trade unions. Section 8-A of I.R.O. 1969 reads as follows:-- "8-A. Transfer, etc of officer of trade union during pendency of application for registration.

Save with the prior permission of the Registrar, no officer of a trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of the officers to the employer in writing."

6. In support of this petition, it was first submitted by Mr. Naimur Rehman, learned counsel for the petitioner, that the Tribunal erred in holding that the management could not have terminated the services of the private respondents, who were officer-bearers of the union, when the proceedings were pending under section 8-A of the Industrial Relations Ordinance, 1969. The Tribunal was of the view that even termination simpliciter during the pendency of such proceedings was illegal. As observed. at the rime the services of the private respondents were terminated, the petitioner was enjoying the exemption from the application of Standing Orders 12 and 15 extended by the notification dated 20-6-1983 issued by the Government of Sindh. Section 8-A of the I.R.O., 1969, however, remained applicable to the establishment of the petitioner. Under the aforesaid provision, during the pendency of application for registration of a trade union, no officer of the trade union concerned or a workman could be (a) transferred; (b) discharged; or (d) otherwise punished, provided that the union had notified the names of the officers to the employer in writing. Termination simpliciter is not covered by section 8-A. For the employee, whose services have been dispensed with and who wants to take benefit of section 8-R, it has to be shown that the termination was by way of discharge, dismissal or by way of punishment. Termination simpliciter which is not discharge, dismissal or by way of punishment and which is otherwise valid in law, is not hit by section 8-A. To this extent therefore, the submission of the learned counsel for the petitioner is correct. However, the decision of the Tribunal that the terminations were mala fide is sustainable from the evidence on record.

7. According to the evidence of the respondents, their services were terminated because they formed a union. It has been observed that the persons whose services were terminated, were the General Secretary and Vice- President of the union, which was formed on 14-12-1983. According to the respondents, intimation of the names of the office-bearers of the Union was given to the management through a letter on the same day. i.e. 14-12-1983 pursuant to section 8-A of I.R.O., 1969, but the management of the petitioner refused to accept the letter and immediately thereafter terminated the services of the respondent Ghulam Shabbir Usmani on 14-3-1983 and three days later services of respondent Amir Abdullah were terminated on 17-12-1983. From the evidence of the respondents that their services were terminated as they were instrumental in the formation of the Union together with the speed with which action was taken by the petitioner for the termination of the services of the respondents immediately on coming to know about the formation of the Union, an inference can reasonably be drawn that the services of the respondents were dispensed with for the reason that they had formed the trade union and that it was not a case of termination simpliciter in good faith. Mr. Naimur Rehman, learned counsel for the petitioner, however, had argued that the termination was simpliciter and the petitioner taking the benefit of the notification exempting the petitioner' from the application of Standing orders 12 and 15 dispensed with the services of the respondents in good faith. The learned counsel that the period of exemption was coming to an end on 12-12-1983 pointed it out and as such the petitioner took the aforesaid action to avail the benefit of the exemption. Perhaps this view was also possible but, as observed, the view taken by the Appellate Tribunal is supported by the evidence on record and the timing of the termination with reference to the formation of the trade union. Even if the view suggested by Mr. Naimur Rehman was possible on the evidence on record, the other view being also possible and having been taken by the Tribunal, no case for interference under the Constitutional jurisdiction was made out. For the aforesaid reasons, we had dismissed the above petition by our short order dated 2-9-1991. H.B.T./5-803/K Petition dismissed.