2017 PLP 11 (PLC N)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged judgment, dated 14th January, 2006, of the Sindh Labour Court No.02, Karachi, dismissing her application, No.120 of 1999, for restatement in service with back benefits.

2. Briefly, the facts are that, on 29th July, 1999, the appellant filed application in the labour court and contended that, on 19th November, 1991, the respondents appointed her as telephone operator, confirmed her as telephone operator with effect from 19th February, 1992, verbally ordered her to work as packer in 1997 despite her protest in writing, and finally terminated her services on 16th March, 1999 on the ground that they had given the work of packing on contract. According to her, the act of the respondents was mala fide as the post of telephone operator was still there and persons junior to her were working as telephone operators.

3. In reply, the respondents contended that they had lawfully terminated services of the appellant and other employees as they had given the work of packing to a contractor.

4. The appellant examined herself; while the respondents examined their Group General Manager, Mohib Ahmed Khan. At the request of the appellant, Tariq Khan, an officer of HBL, Malir City branch, produced documents regarding SB account No.14520 in the name of the appellant. The labour court dismissed the application, as in its opinions, the respondents had terminated services of the appellant lawfully.

5. The labour court held termination of appellant's services as lawful, because it had held termination of other workers as lawful and their appeal had been dismissed by the Hon'ble High Court and that the appellant had received the full and final payment during pendency of her application. The reasons are not convincing. First, the respondents had given work of packers and not of telephone operators on contract. The appellant was telephone operator and not packer. Therefore, her case was different from the case of workers who were appointed as packers. She was verbally asked to work as packer which she did under protest in writing. The work of a telephone operator is quite different from the work of a packer. There is no resemblance between the two. Despite her protest in writing, the appellant was compelled to work as packer as, she having no other source of income, could not take the risk of losing the job. The respondents did not issue any order in writing either changing her appointment from telephone operator to packer or transferring her permanently to packing department. Simply because the appellant did not challenge respondents' verbal order to work as packer, it cannot be said that her appointment stood changed as packer. Hassle of litigation and displeasure of the respondents were always there to prevent the appellant from challenging the respondents' verbal order in court.

6. The Group General Manager of the respondents admitted that the appellant was appointed and confirmed as a telephone operator which post was still there and one Mst. Sughra was working on that post and further stated that he did not know whether at the time of terminating services of the appellant Mst. Sughra was there or she was appointed afterwards.

7. The respondents failed to prove their contention that during pendency of her case before the labour court the appellant received full and final payment on 09th August, 2001. The appellant denied to have received the alleged payment. The Group General Manager of the respondents stated, in his affidavit-in-evidence, that on 09th August 2001, they had made payment of full and final payment to the appellant, through a cheque of Rs.37394/- and produced such receipt purported to have been signed by the appellant. However, in his cross-examination, he stated that neither the payment was made by him nor it was made in his presence and that the purported signature of the appellant on the receipt did not tally with her signatures available in her service record.

8. The payment was allegedly made on 09th August, 2001. The appellant was cross-examined on 14th April, 2003. Not a single question was put to her regarding receiving full and final payment and she was not confronted with the receipt allegedly executed by her.

9. The amount of the cheque is shown to have been credited in account No.1452 in the name of one Shaheen Akhtar wife of Akhtar Hussain with NIC No. 519-89-194382 and date of birth as 19th July, 1970. The account was opened on 16th August 2001, the amount of cheque was credited on 21st August 2001 and the entire amount was withdrawn on the same day, leaving balance of Rs.374/- only. Thereafter, the account was never operated.

10. Except for her name, particulars of the appellant do not tally with those of the account holder. The number of appellant's NIC available in her service record is 519-59-345294 and she is shown as daughter of Muhammad Yameen and the date of her birth is 02nd March 1959, which tallies with the date of her birth mentioned in her academic certificates available in her service record. It is, therefore, clear that the cheque was not delivered to the appellant and the amount of the cheque was credited in the account of some other Shaheen Akhtar.

11. In view of the above fact, circumstances and reasons, I am of the considered opinion that services of the appellant were terminated unlawfully.

12. As for a just and proper order, a period of more than 17 years has passed. It is not believable that the appellant was waiting for her reinstatement and doing nothing for these 17 years. In view of the long litigation of more than 17 years, reinstatement of the appellant in service will not be productive or viable. In such circumstances, it will be just, proper and in the interest of both parties that reasonable compensation is awarded to the appellant for the loss of job due to unlawful termination. Accordingly, a reasonable compensation of Rs.250,000/- is awarded to the appellant in lieu of reinstatement in service, which the respondents are directed to deposit within 60 days for payment to her. The appeal is disposed of accordingly. JK/31/SLT Order accordingly.