Retrenchment

2017 PLC 158 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 46Constitution of Pakistan, Art.199Constitutional petitionGrievance petitionBank employeeRetrenchmentPayment of compensationPetitioner sought additional allowance on the basis of judgment of Supreme CourtScopeRespondent-Bank retrenched the employees and they were paid compensation

Contention of petitioners-employees was that they were entitled for additional compensation as per judgment passed by the Supreme Court

Validity

Respondent Bank agreed for payment of additional compensation to the retrenched employees

Supreme Court had passed the order on the basis of settlement between the parties

Said judgment of Supreme Court was not a judgment in rem but was in personam, therefore was attracted to the present case

Petitioners-employees had already received compensation after retrenchment order passed by the Bank

Constitutional petition was dismissed in circumstances.

2014 PLC 77 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.Os. 13 & 14RetrenchmentRe-organization of businessExclusive right of employer to decide the way to conduct his business and to re-organize the same

Even if organization was making profit, that would not mean that organization could not re-organize its operation to achieve better efficiency of working

Retrenchment of workers, could be for a variety of the reasons

One of them being of suffering of loss, but, even if organization was profitable, it could still resort to retrenchment for bona fide reasons of re-organization.

2012 PLC 317 LABOUR-APPELLATE-TRIBUNAL-BALOCHISTAN Judicial Precedent

Ss. 41 & 55Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.11-A & 13RetrenchmentGrievance petitionAppellants/employees along with 2338 employees were retrenchedGrievance petition filed by the employees had been dismissed by' the Labour CourtValidity

Counsel for employer/Bank had submitted a memo. where one of the appellants was paid amount being retrenched dues payable to him

According to another document, appellant had acknowledged that he had received said amount after deducting income tax

.-Said documents had not been denied by the counsel of appellant

Matter of retrenched employees of employer/ Bank had finally been resolved

No cause of action of the appellant was sustainable before the Appellate Tribunal

Counsel for employer/ Bank had brought two cheques with acknowledgment for appellant who refused to receive and acknowledge the same

Appeal was dismissed in circumstances.

2010 SCMR 1475 SUPREME-COURT Judicial Precedent

Ss. 11-A, 12, 13 & 14Industrial Relations Ordinance (XXIII of 1969), S.25-ARestoration in serviceRetrenchmentAdministration of justice

Workmen aggrieved of their termination from service assailed the order before Labour Court on the ground that they were not made party to proceedings under S.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Labour Court allowed grievance petition of workmen with the observation that their termination in process of retrenchment would be open to interference as orders of termination did not give exp; 'cit reason as was shown to have been passed mala fide or in colourable exercise of powers under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, thus reinstated workmen in service but High Court in exercise of appellate jurisdiction reversed findings passed by Labour Court and maintained the order of termination from service

Validity

Labour Court rendered such finding after proper appreciation of evidence keeping in view the mandate of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was reversed without adverting to documentary as well as mandatory provisions of law by High Court in its judgment

Termination orders of workmen/ retrenchment orders was colourable exercise of Authority and far from being bona fide, therefore, termination/retrenchment orders were unwarranted and Labour Court was justified to set aside the same with cogent reasons and reinstated them with back-benefits which was reversed without considering the mandatory provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, by High Court through its judgment

Supreme Court did not accept the suggestion of employer with regard to remanding of case to High Court for fresh adjudication of appeal only for re-writing a judgment, as the same would serve no useful purpose and would be proved an exercise in futility

Supreme Court set aside the judgment passed by High Court and restored that of Labour Court

Appeal was allowed.

2010 PLC 246 SUPREME-COURT Judicial Precedent

Ss. 11-A, 12, 13 & 14Industrial Relations Ordinance (XXIII of 1969), S.25-ARestoration in serviceRetrenchmentAdministration of justice

Workmen aggrieved of their termination from service assailed the order before Labour Court on the ground that they were not made party to proceedings under S.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Labour Court allowed grievance petition of workmen with the observation that their termination in process of retrenchment would be open to interference as orders of termination did not give explicit reason as was shown to have been passed mala fide or in colourable exercise of powers under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, thus reinstated workmen in service but High Court in exercise of appellate jurisdiction reversed findings passed by Labour Court and maintained the order of termination from service

Validity

Labour Court rendered such finding after proper appreciation of evidence keeping in view the mandate of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was reversed without adverting to documentary as well as mandatory provisions of law by High Court in its judgment

Termination orders of workmen / retrenchment orders was colourable exercise of Authority and far from being bona fide, therefore, termination/retrenchment orders were unwarranted and Labour Court was justified to set aside the same with cogent reasons and reinstated them with back-benefits which was reversed without considering the mandatory provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, by High Court through its judgment

Supreme Court did not accept the suggestion of employer with regard to remanding of case to High Court for fresh adjudication of appeal only for re-writing a judgment, as the same would serve no useful purpose and would be proved an exercise in futility

Supreme Court set aside the judgment passed by High Court and restored that of Labour Court

Appeal was allowed.

2010 PLC 78 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 46

Industrial and Commercial Employment (Standing Orders) Ordinance' (VI of 1968), S.O.13-Constitution of Pakistan (1973), Art.199

Constitutional petition

Retrenchment

Grievance application

Amendment in grievance application

During pendency of proceedings of the grievance application filed by the respondent/employee against his retrenchment, employee had filed an application for amendment of grievance application, which application having been allowed by the Labour Court, petitioner/Bank had filed constitutional petition against said order of the Labour Court

Contentions of petitioner/employer were; firstly that the amendment sought for by the employee had introduced a new cause of action; and secondly that the amendment sought for was time-barred

Validity

Facts of the case had revealed that the amendment sought for by the employee did not add to any new cause of action, but it remained confined to the retrenchment

Expiry of limitation by itself when considering the question of amendment, was not to be treated as bar, if it was found to be necessary for the purpose of amendment

Delay alone in applying for amendment after expiry of the period of limitation was not a ground for refusing an amendment in the plaint

No jurisdictional error having been demonstrated in the impugned order, constitutional petition was dismissed.

2009 PLC 361 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 45(2), 46, 48(3) & 49(4)(e)Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13RetrenchmentGrievance applicationApplication for rejection of grievance applicationRevision petition

Respondents/employees who were removed under the retrenchment scheme, approached National Industrial Relations Commission by filing petition under S.49(4)(e) of Industrial Relations Ordinance, 2002, which petition was rejected with observation that the respondents/employees could seek remedy available under the law; thereafter employees approached Labour Court after seven months by filing grievance application under S.46 of Industrial Relations Ordinance, 2002

Appellants/Employers filed application under S.45(2) of Industrial Relations ordinance, 2002 for rejection of grievance application of the employees on ground of being barred by time

Period spent in pursuing the matter before National Industrial Relations Commission needed to be condoned as the remedy before said Commission was somewhat parallel with remedy provided before the Labour Court; and it was very difficult to draw line of distinction by the workers for seeking remedy of their grievance before either of the two forums

In the present case, taking of cognizance by National Industrial Relations Commission and grant of temporary injunction by the Commission had reflected that prima facie case of unfair labour practice by the appellants/employers was made out, which later on after due consideration, was rejected by the Commission with observation to seek remedy available under the law

Approaching National Industrial Relations Commission by the employees, could not be said to be for any other reason, but considering the action of the appellants employer as unfair labour practice and their bona fides could not be doubted

Labour Court, in circumstances, had rightly rejected application of appellants/employers filed for rejection of grievance application on ground of being barred by time.

2009 PLC 21 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 46 & 48Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13RetrenchmentAppealEmployees were retrenched in view of financial crisis being faced by the CorporationService benefits, admissible under the rules, were paid to the employees

Employees, however, filed appeals under S.4 read with S.2-A of the Service Tribunals Act, 1973 before Federal Service Tribunal challenging their retrenchment

Pending appeals, Supreme Court, in case (PLD 2006 SC 602) declared S.2-A of Service Tribunals Act, 1973 to be illegal; in pursuance of said judgment, employees filed grievance petitions under S.46 of Industrial Relations Ordinance, 2002 before the Labour Court and same were allowed vide impugned judgment and employees were reinstated with all back-benefits

Registrar, Service Tribunal intimated employees that their appeals had abated in view of the judgment of Supreme Court

Order of abatement of employee's appeals passed by Registrar Service Tribunal, had no legal sanctity

Impugned judgment passed by Labour Court, was also not maintainable, which was set aside

Order passed by the Registrar was also declared null and void

Appeals of employees would be deemed to be pending before Service Tribunal and issue of their abatement would be decided by the Service Tribunal after hearing the parties, in the light of principles laid down in the judgments of the apex Court

Office would remit the record to Service Tribunal.

2008 PLC 381 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 46 & 48Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A & 13RetrenchmentGrievance petitionAppeal to High Court

Employee who served in the Bank for about 20 years as driver, his services were terminated under retrenchment scheme along with other 210 drivers

Grievance petition filed by the employee against order of termination had been dismissed by the Labour Court

Validity

Board of Directors of the Bank (employer) in its meeting approved the separation scheme in respect of retrenchment of drivers and authorized President of the Bank to implement the scheme

According to said separation scheme, drivers having completed 25 years or more in service were given an option with regard to the Post Retirement Benevolent 'Fund Grant and Medical facility

Employees were given an option either to receive Post Retirement Benevolent Fund Grant and Medical facilities as per rules or in the alternative an amount equal to 10 years normal Post-Retirement Medical facility available to retiring employees in the lump-sum in advance at the time of settlement of dues as a final payment

No option was available to the drivers, either to remain in service or to take 10 years Post Retirement Benefits

National Industrial Relations Commission in its order passed in another case, had found that Bank was within its right to reorganize the institution and to retrench the employees

Questions had been rightly resolved by the competent forum and the Labour Court had followed that decision of competent forum in its impugned judgment

Appeal was dismissed.

2007 PLC 640 NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION Judicial Precedent

Regln. 32(2)(c)Industrial Relations Ordinance (XCI of 2002), Ss.45(2), 49(4)(e) & 50(3)(a)West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13Interim orderGrant, clarification and confirmation ofRetrenchmentUnfair labour practice by employersPetition against

Services of petitioners having been terminated by way of retrenchment, petitioners filed petitions under S.49(4)(e) of Industrial Relations Ordinance, 2002

Petitioners along with said petitions, filed application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of interim injunction, which application was accepted and interim order was passed

Employers moved an application under S.50(3)(a) read with S.45(2) of Industrial Relations Ordinance, 2002 seeking clarification of interim order

Interim order sought to be clarified was to the effect, "meanwhile the respondents, if had issued letters of termination by way of retrenchment in respect of petitioners, were directed not to give effect to such termination letters till the next date"

Said interim order which was being extended from date to date and continued to operate, was very .clear, unambiguous, unequivocal, very simple, easy to understand and required no further clarification by Bench of National Industrial Relations Commission

Employers had acted on their wrong assumption and had defied to give effect to interim order at their own whim and had cleverly tried to absolve themselves by filing .application seeking clarification of interim order

Court, which possessed jurisdiction to deal with or try the case could pass an interim order, which later on could be held as right or wrong, but the legal course for the other party was to obey and comply with it

If party was aggrieved by said interim order, it could either make submission to the court dealing with the case that same be recalled or vacated or to file an appeal to challenge. its legality, but not to make its own interpretation and disobey same

For grant of interim injunction, besides prima facie case, balance of inconvenience and irreparable loss was to be present in favour of person who sought interim injunction

If interim order in question was not confirmed, it would neither cause any inconvenience nor irreparable loss or injury to petitioners as .later two ingredients did not lie in favour of petitioners, but leaned to the side of employers

Interim order, however, could not-be confirmed as same could only be determined after evidence was recorded, considering whether letters of termination by way of retrenchment of petitioners were act of victimization on account of their trade union activities, arid as such wart acts of unfair labour practice

Application under Regln.32(2)(c) of National Industrial .Relations Commission, (Procedure and Functions) Regulations, 1973, was dismissed and interim order was recalled.

2007 PLC 590 NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION Judicial Precedent

Ss. 49(4)(e) & 63West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)RetrenchmentPetition against unfair labour practice by employers

Petitioners/employees in their petitions had assailed retrenchment order whereby services of 2300 employees working in Bank as Security Guards, Drivers and other manual workers were dispensed with, which according to petitioners was act of mala fide and unfair labour practice by Bank

No apprehension of any specific unfair labour practice as contained in S.63 of Industrial Relations Ordinance, 2002 which could likely to occur had been pleaded in all or airy of said petitions

Bench of National Industrial Relations Commission thus, could not proceed with petitions under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973

No allegation of specific unfair labour practice likely to be committed having been made, said Bench lacked jurisdiction to determine same

Petitions were dismissed for lack of jurisdiction.

2005 PLC 96 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.O.14Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 37(3)RetrenchmentGrievance petitionAppeal before Labour Appellate Tribunal

Employees, who were employed by employer Bank as drivers, their services were retrenched according to scheme launched whereby it was decided to retrench all. drivers without any exception and after their retrenchment no further recruitment of drivers was made

­Employees challenged said retrenchment in their grievance petition. alleging it baseless, dishonest, mala fide and illegal

Employer Bank had challenged maintainability of said grievance petition contending that employees who had been paid substantial amount of money in excess of their legal dues, were estopped from filing grievance petitions

­Employer Bank had further pleaded that all two hundred drivers being not required, their retrenchment was without any discrimination and that there was no question of mala fide because entire cadre of drivers had been abolished and after that no driver was recruited

Termination of services of employees as a result of retrenchment carried no stigma

­Bank Management in Retrenchment Scheme having given substantial benefits to retrenched employees, it could not be said that exercise of powers by employer Bank was opposed to Islamic principle of `Adal-o-Ihsan'

As termination of employees from service as a result of retrenchment did not carry any stigma, they were not entitled to any notice of hearing before termination, of their employment through retrenchment

Contention of employees that they were condemned unheard, was repelled

Employee, having rightly been retrenched their appeals having no force, were dismissed.

2005 PLC 96 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

-S.Os. 12, 13 & 15RetrenchmentRetrenchment, dismissal, discharge, removal from serviceDistinction between

Retrenchment would mean discharge of surplus labour or staff by employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action and it had no application where services of all workmen had been terminated by employer on a real and bona fide closure of business or when services of all workmen had been terminated by employers on the business or undertaking being taken over by another employer

Where any workman was to be retrenched and he belonged to a particular category of workmen, employer would retrench the workman, who was the last person in that category

Retrenchment, comprised of an act or instance of cutting off, cutting out or .cutting down, in many a case, for consideration of economy, such as discharge of a surplus labour or staff in a continuing 'or running industry

As to the grievance of dismissal, removal and discharge of the employee, it was quite distinguishable from the word `retrenchment'

`Dismissal' was the loose equivalent of removal from an office or employment

That class of termination, implicitly involved severance of relationship before time on account of some defect in the performance or discharge of duties

.`Removal' signified an act of displacement from a post or position as such, which usually would come about for a fault on the part of an employee, but also could be occasioned, in certain circumstances, quite blamelessly-" Discharge" involved either simple relieving of a charge of any kind or to dismiss, though usually the former

Such, could either be without apportionment of blame or on account of commission of an offence or misconduct

In either case, it would result in extinguishments of an obligation or termination of an employment.