1991 PLP 579 (PLC(CS))

Date of hearing: 17th November, 1990. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad, dated 15-4-1987, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with all consequential benefits.

2. The brief facts of the case are that the respondent was admittedly employed as a workman by the appellants. His services were terminated by order, dated 1-12-1985, on the ground that his services had become surplus as the Weaving Department had been given away on contract. Aggrieved by this order, the respondent served grievance notice upon the appellants and then filed his grievance petition before the learned Labour Court. He claimed that he had been victimised because of his trade union activities.

3. I have perused the written arguments, submitted by Mr. Mahmood A. Ghani, the learned Advocate for the appellants and Mr. Bashir Awan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

4. Admittedly there was a dispute between the Union and the employer which was settled by an agreement, dated 28-4-1985 which has been produced as Annexure `R-1'. Admittedly the services of about 400 workers including the respondent were terminated on 7-3-1985 and on the intervention of the Labour Department, all the workers including the respondent were reinstated. It is also stated in para. 15 of the affidavit-in-evidence of Mr. Sarwaruz Zaman, General Manager of the appellants that the officers and members of the employees union including the respondent forcibly halted the workers and threatened to use violence against the Contractor and his labour if they came to work on 4th, 5th and Pith June, 1985. It is also alleged in paras. 16 and 17 of the affidavit-in evidence of Sarwaruz Zaman that the officers and members of the union had tried to hinder the normal work and on 11-6-1985 at 3.00 p.m., the officers of the union alongwith their members and some outsiders attacked the mill gate and physically assaulted the Chowkidars. He has also pointed some other acts of harassment by the union. However, by agreement Exh. R-1, the union agreed to maintain the discipline. Keeping in view this background of the case, it would-be clear that there was no love last between the appellants and the respondent.

5. The action taken by the appellants against the respondent and the evidence produced by the parties, would have to be assessed keeping in view this background. Annexure A/2 is a notice under Standing Order 12(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,1968; but, in fact it is an order of termination under Standing Order 12(3). This order is defective in the sense that neither one month's notice has been given nor one month's pay in lieu of notice is mentioned in this order. The reason of termination is shown that the Weaving Department had been given on contract and all the workers therein were working on contract with a Contractor, therefore, services of respondent were no more required. Paras. 22 to 25 of the affidavit-in-evidence of Sarwaruz Zaman are relevant on this aspect. From the evidence, it appears that there was another agreement, dated 17-6-1985 between the Management and the C.B.A. However, all the workers did not resume the duties and some looms were lying idle. The appellants, therefore, had put to idle looms in operation on contract basis. It is further alleged that other workers who were operating looms on contract basis were earning higher remuneration and, therefore, workers on daily/monthly rate also requested to be relieved from their services and converted to work on contract basis. Consequently, the respondent became the only daily wage worker who refused to work on contract basis and his services were terminated as no longer required. It would be seen from his statement that only idle looms were given on contract. It is not clear if other workers who subsequently are said to have requested to be relieved and also agreed to work on contract basis, worked with the Contractor nor with the management. This witness has nowhere stated that entire Weaving Department was given on contract. He has not named any Contractor nor he has produced any document in proof of this alleged contract. In fact, in cross -examination, he admits that he did not know when the entire weaving 'Department was completely given on contract. The respondent in his examination-in-chief as well as in his cross-examination has denied that the Weaving Department was given on contract. He has, however, refused to accept to work on contract even if so offered.

6. The settled principle of law is that the employer has got a right to re- organise his establishment and to give his work on contract if so required under the reorganization and consequently to retrench the workers, but, this re organization should be bona fide and should not be mere 'colourful exercise in order to get rid of unwanted workers. In the instant case, keeping in view the background of the case and also the evidence produced with regard to the contract, by the appellants, it cannot be said that this re-organization, if any, was for bona Fide purposes and was not undertaken to get rid of the workers including the respondent, who allegedly were causing nuisance to the management.

7. In view of the above discussion, I see no merit in this appeal which is accordingly dismissed. M.Y.H./1821/Lb.S Appeal dismissed.