1984 PLP 1590 (PLC)

"Admitted to the extent that notifications were published in newspapers for resumption of their duties. A list was prepared of those employees who reported for duty and terminated their services due to the retrenchment on account of economical reasons and reorganisation of corporation. The applicant was declared surplus. Therefore his services were terminated after paying one months pay in lieu of one month's notice as mentioned in the termination order. By order, dated 18th July, 1979 the Sind Labour Court No. IV, Karachi, hold that there was no termination of the services of the petitioner in writing either by K. T. C. or S. R. T. C. and that the petitioner continued to be in the service of the K. T. C. and that he should be reinstated in service with back benefits to be paid by the K. T. C. K. T. C. being aggrieved by the order, dated 18th July, 1979 of the Sind Labour Court, filed an appeal before the Sind Labour Appellate Tribunal making the petitioner as one respondent and the S. R. T. C. as the other respondent. We have seen the record of the Sind Labour Appellate Tribunal and we find that there is nothing on the record to show that S. R. T. C. had been served of any notice in the appeal. No one appeared on behalf of the S. R. T. C. before the Sind Labour Appellate Tribunal. The title in the judgment of the learned Sind Labour Appellate Tribunal in the appeal also does not show the name of S. R. T. C. as one of the parties. By order, dated 20th December, 1979, the learned Sind Labour Appellate Tribunal allowed the appeal of the K. T. C. against the petitioner holding that the petitioner was not the employee of K. T. C. Being aggrieved, the petitioner has filed the present constitutional petition. We have heard Mr. Mazhar Ali B. Chohan, learned counsel for the petitioner, M. Mir Raza Hussain, learned counsel for respondent No. I (K. T. C.) and Mr. Talmiz Burney, learned counsel for respondent No. 2 (S. R. T. C). No one has appeared on behalf of the respondents Nos. 3 and 4, who are Official respondents, namely, the learned Sind Labour Court and the learned Sind Labour Appellate Tribunal.

2. It is an admitted position that no order in writing terminating the services of the petitioner was passed by K. T. C. As already observed, K. T. C's stand has been that the petitioner was the employee of S. R. T. C. and for a temporary period he had worked with K. T. C. and salary for the temporary period was paid by K. T. C. on behalf of S. R. T. C. We had asked Mr. Talmiz Burney, learned counsel for S. R. T. C. whether any order in writing had been passed by S. R. T. C. terminating the services of the‑petitioner. Today in Court Mr. Talmiz Burney has filed a photostat copy of the order, dated 6th August, 1977 of the Chairman of Sind Road Transport Corporation, which is to the following effect: "The services of Mr. Manzoor Hussain, Designation Conductor‑Token No. 92 are hereby retrenched on account of reduction in business and consequent reduction in number of posts on the basis of economy and re‑organisation of the Sind Road Transport Corporation. One month's pay in lieu of one month's notice and all other dues shall be paid to him, on clearance‑of outstanding dues against him, if any. This order will come into force with immediate effect." In the face of this termination order, dated 6th August, 1977 and the contents of the written statement filed on behalf of the S. R. T. C. before the Labour Court, it is not possible for S. R. T. C. to raise a plea that the petitioner was not the employee of S. R. T. C. However. it was contended by the learned counsel, for S. R. T. C. that prior to the termination order, dated 6th August, 1977, the services of the petitioner had been transferred to K. T. C. and petitioner had become an employee of K. T. C. and he had also been paid salary by K. T. C. and as such petitioner no longer remained the employee of S. R. T. C. When confronted with the termination order dated 6th August, 1977 passed by S. R. T. C. itself, an attempt was made by the learned counsel for S R. T. C. to contend that the termination order, dated 6th August, 1977 was redundant of no legal effect. On a further question from us learned counsel for S. R. T. C. informed that the termina tion order, dated 6th August, 1977 has not been withdrawn by S. R. T. C. The stand cannot be taken by S. R. T. C. that the termination order, dated 6th August, 1977 was issued by S. R. T. C. on account of some mis-under standing or that it was a redundant or illegal order. It is an admitted position that earlier notices were published in the newspapers asking the employees including the petitioner to report for duty with S. R. T. C. and these notices were published in the end of July, 197

7. Thereafter termination order, dated 6th August, 1977 was passed by S. R. T. C. in the case of the petitioner. If the petitioner's services had been transferred to K. T. C. or the petitioner had ceased to be the employee of S. R. T. C, firstly there would have no termination order, dated 6th August, 1977 and secondly in reply to the grievance notices of the petitioner addressed to S. R. T. C., it would have been asserted by S. R. T. C. that petitioner Manzoor Hussain was no longer employee of S. R. T. C. as he had become a regular employee of K. T. C. But this is not the stand taken by S. R. T. C. S. R. T. C. filed a written statement before the Labour Court and a perusal of the same shows that S. R. T. C. admitted that the petitioner was in service of the S. R. T. C. till 6th August, 1977 when his services were terminated by the termination order, dated 6th August, 1977. It is not the case of S. R. T. C. that any salary was paid by the K. T. I. after July, 1977 to the petitioner. As noted earlier, till 6th August, 1977 S. R. T. C. admits the petitioner to be in their service his services were terminated on 6th August, 1977. In view of the aforesaid discussion and the admission of the S. R. T. C. that peti tioner was their employee, the stand taken on behalf of S. R. T. C. before us that petitioner was not the employee of S. R. T. C, cannot be accepted.

3. As regards the impugned order of the learned Sind Labour Appellate Tribunal, we find that on appraisal, of the evidence a finding has been given that petitioner was not the employee of K. T. C. and we see no reason to interfere with such finding. However, in view of the written statement filed by S. R. T. C. before the Labour Court and the termination order, dated 6th August, 1977 it appears to be an admitted position that petitioner was the employee of S. R. T. C. The original application under section 25‑AS of the

1. R. O., 1969 had been filed by the petitioner against both K. T. C. and S. R. T. C. but it has not been determined either by the learned Labour Court or by the learned Sind Labour Appellate Tribunal whether the termi nation of the petitioner's services by S. R. T. C. was in accordance with law or not. We agree with Mr. Talmiz Burney, learned counsel for S. R. T. C. that S. R. T. C. was not served with the notice of the appeal before the learned Sind Labour Appellate Tribunal. It is apparent that the petitioner has been seeking his remedy against his employer. S. R. T. C. has been claiming that the petitioner was the employee of K. T. C and K. T. C. has taken the stand that he was never the employee of K. T. C.. However, it is now established beyond any doubt that the petitioner was the employee of S. R. T. C. and his services were terminated on 6th August, 1977 by S. R. T. C. This point, therefore, cannot be challenged any longer by S. R. T. C. It was then contended by the learned counsel for the S. R. T. C. that no grievance notice had been sent to S. R. T. C. In para. 10 of his application under section 25‑A, the petitioner has stated that he sent a grievance notice and then in para. 7 of this constitutional petition also the petitioner has stated that he sent grievance notice, dated 19th October, 1977 to both K. T. C. and S. R. T. C. No counter‑affidavit has been filed by S. R. T. C. in this petition to deny the factual accordions made that a grievance notice had been sent by the petitioner to S. it. T. C. It was then contended on behalf of the S. R: T. C. that the petitioner was not entitled to any relief which was inconsistent with his pleas. According to the learned counsel for S. R. T. C., the petitioner has claimed relief as against the impugned order, dated 20th December, 1979 passed by the learned Sind Labour Appellate Tribunal holding the petitioner not to be employee of K. T. C. According to the learned counsel for the S. R. T. C., the petitioner wants in this constitutional petition relief to the effect that he may be declared as an employee of K. T. C After having gone through the memo. of petition and the other documents including application under sec tion 25‑A of I.R.O., 1969 and the written statements held by the K.T.C. and S. R. T. C. throwing burden on each other, we are of the view that in effect the relief that is being claimed by the petitioner has been that it should b declared as to whose employee the petitioner is, that is, whether he is the employee of K. T. C. or S. R. T. C. and then an order be passed for hi reinstatement and for back benefits. We have already held on the basis o the admission of S. R. T. C. and the termination order, dated 6th August, 1977, that the petitioner was the employee of S. R. T. C. and as such the only question that remain$ to be decided is whether his termination was in accordance with law or not. In our view, dictates of law and justice require that the matter be remanded to the Labour Court for decision on the question whether the termination of the petitioner's services by order, dated 6th August, 1977 was in accordance with law or not.

4. Constitutional Petition No. D‑895 of 1980, is disposed of by remanding the case to the Labour Court concerned for decision of the question whether the termination of the petitioner's Services by S. R. T. C. by their Order, dated 6th August, 1977 is m accordance with law or not. The decision of the Sind Labour Appellate Tribunal to the extent it decide that the petitioner is not the employee of K. T. C. is maintained. The learned Sind Labour Court will give notice to the parties and if any party wishes to lead any fresh evidence or file any documents, the Labour Court will give the party concerned every opportunity to do so. The Labour Court is directed to give its final decision within three months of receipt of intima tion about the passing of this Judgment. There will be no order as to costs. M. Y. H. Case remanded.