1985 PLP 735 (PLC)

SAJJAD ALI SHAH, J.‑The constitutional. petition calls in question decision, dated 7th October, 1979 of Labour Appellate Tribunal at Karachi, whereby order passed by the Sind Labour Court No. I V of re‑instatement of petitioner in service with back benefits has been set aside.

2. Briefly stated the relevant facts, which lead to the filing of this petition, are that the petitioner, who is a lady, was employed by respon dent No. 1 namely Messrs Midway House Limited as Assistant Linen Keeper at a salary of Rs. 330 P.M. on temporary basis for a period of three months vide letter dated 10th October, 1978. Latter she continued in service upto 21st December, 1978 and during the intermittent period of service, her employment was renewed on four occasions and on each such occasion it was renewed for three months by separate fresh appoint ment letter. On 21st December, 1978 she received a letter informing her that her services were terminated on account of non‑requirement of the post against which she was employed. She was further informed in that letter that she could collect her "Dues" from the Accounts Department on any working day. Petitioner submitted grievance notice under section 25(A) of the Industrial Relations Ordinance, 1969 to respondent No. 1 and received a reply vide letter dated 6th January, 1979 whereby her request for reinstatement was refused. She then filed a petition before Sind Labour Court at Karachi, where respondent No. 1 contested and final order of reinstatement with back benefits was passed by the Labour Court against which respondent No. 1 went to Appeal before the Sind Labour Appellate Tribunal which gave decision setting aside the order of Labour Court, which is impugned in this petition.

3. Mr. Rehmat Illahi, counsel for the petitioner contended before us that the petitioner remained in employment for about 14 months and also the nature of employment was such that she had become a permanent worker as such her services could not be terminated in the manner in which it was one with mala fide intention in violation of Labour Laws. In this context, we have examined the letters of appointment which are on the record. Initially the petitioner was appointed by letter, dated 10th October, 1978 in which it is clearly mentioned that she is appointed as temporary workman for a period of three months against a temporary vacancy. Subsequent letters dated 8th April, 1978, 8th July, 1978 and 20th December, 1978 show that on each occasion she was freshly appointed for a period of three months on each such occasion till her services were terminated. Mr. Rehmat Illahi further argued that this was done by respondent No. 1 with mala fide intention so that the petitioner may not be deemed as permanent worker although she bad served about 14 months.

4. On the other hand Mr. Hassan A. Shaikh, counsel for the res pondent No. 1 contended that irrespective of the fact whether nature of em ployment was permanent or temporary, respondent No. 1 have taken action under Standing Order XII of the West Pakistan (Standing Orders) Ordinance, 1969, which contemplates that the employment of a permanent workman, for any reason other than misconduct, can be terminated by one month's notice or in lieu thereof by payment of one month's wages. In this context, we have seen letter of termination, dated 21st December, 1978 copy of which is on the record. It is stated in this letter that her services are terminated due to the non‑requirement of the position of Assistant Linen Keeper

which was created temporarily to streamline the work. In the next paragraph petitioner is advised to collect her "Dues" from the Accounts Department on any working day. In the third paragraph, the petitioner is advised to leave her permanent address with the employers so that they may avail her services if and when required by the Company within a period of one year. Mr. Hassan A. Shaikh on this basis argued that there was no mala fide intention and even if it be assumed that the petitioner was a permanent worker or the post against which she was appointed was of permanent nature, then too requirements of section XII of Standing Orders Ordinance have been fully complied with as the employer had allowed the petitioner to collect her "dues" including one month's salary in lieu of notice. We also find that in the letter mentioned above, respondent No. 1 has asked the petitioner to leave her address so that she could be employed again if her services were required within a period of one year. Language of section XII of the said Ordinance is very clear and leaves it open to both the parties to terminate the employment permanent workman either one month's notice or payment of salary for that period in lieu of notice. Mr. Hassan A. Shaikh further stated that the employers were all along prepared to pay the petitioner one month's salary in lieu of notice and that intention is clearly manifested in the letter of termination of service in which petitioner is advised to collect her "dues" from the Accounts Department. Mr. Hassan A. Shaikh has further stated that in the instant case termination of employment was not for misconduct but for the reason that the post was temporary while was created to streamline the work and the employer came to the conclusion that the service of the petitioner were no longer required as such her services were terminated and further that he made statement from the Bar that according to his instructions nobody else has been appointed in place of the petitioner, hence it was not justifiable to attribute mala fide intention to the employers. We also find that this is a question of fact whether the action taken by the employers is mala fide and with colourable exercise of power or not, which has been averted too by the two Courts below and the Labour Appellate Tribunal has dealt with this question of fact adequately in paragraph 12 of the decision impugned before us and has given sound reasons, hence we do not feel inclined to interfere in the constitutional jurisdiction. Reliance is placed on the case of Pakistan Cable Employees Union and another v, Sind Labour Appellate Tribunal, Karachi and another (1981 P L C 589).

5. Another point urged by Mr. Rehmat Illahi, counsel for the petitioner is that before the Labour Court respondent No. 1 did not examine any witness from the management as such the petitioner was prejudiced and was deprived of right of cross‑examination. We find that respondent No. 1 before the Labour Court has filed written statement and filed a number of documents, which were sufficient to prove their plea. These documents are various letters of appointment and fresh appoint ments issued from time to time in favour of the petitioner, which have been adverted to by us in the earlier part of the judgment. In these circumstances we are of the view that if respondent No. 1 did not produce' any witness before the Labour Court and deemed it fit to close the case leaving it open to the Labour Court to decide on the basis of documents produced then it was so done by the respondent in consonance with legal rights and nobody can prevent him from exercising that right. We are, therefore, of considered opinion 'that no illegality has been committed in the proceedings before the Labour Court or the Labour Appellate Tribunal as such no interference is called for in the constitu tional jurisdiction. :In the result we dismiss this petition with no order as to costs. A. E. Petition dismissed.