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Award published in Gazette of Sind, Extraordinary issue, dated 28th December 1970.

West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance (VI of 1968)------

S. Os. 12, 13 & 14‑‑Termi nation‑Employee having worked satisfactorily for 22 months‑-Job not of temporary nature and still existing‑Services of such worker terminated without show cause and another worker employed for same Job‑Termination, in circumstances, held, illegal and case covered by S. Os. 13 & 14 and not by S. O. 12.

1969 P L C 459 and 1970 P L C 727 held not appli cable.

On October 14th 1970, the Pakistan Oxygen Employee's Union, Karachi (hereinafter referred to as "Union" and Messrs Pakistan Oxygen Limited, Karachi (hereinafter referred to as "Company"), signed a settlement in the presence of Assistant Director, Labour Welfare and Conciliator of the Government of Sind. The Union and the Company had mutually settled all demands except one demand relating to the re‑instatement of one Abdul Rasheed, Turner. Goth the parties, however, agreed to refer this demand to me for arbitration, the terms, of reference being as under :‑‑

(a) Whether the termination of Abdul Rasheed's services was justifiable and proper in, law, if not to decide whether he should be re‑instated with retrospective effect, continuity of service and full benefits of leave bonus, provident fund, etc., or whether he should be paid ex gratia payment commensurate with any loss that he may have sustained or monies already offered to him by the Company, are adequate or not

(b) In case the termination of the vices of Abdul Raheed found to be lawful, benefits, if should be paid to him.

The parties submitted their written submission on 21st October 1970 and 28th October 1970, respectively.

The case of Abdul Rasheed is that he was employed by the Company as a 'turner on' 24th. July 168 in the New set up I. E. Light Engineering Section on daily wages of Rs. 10.00 per day. He continued to work as Turner in the Company till 20th May 1970, when his services were terminated by an order of the Manager, Manufacturing Section Exh. "A". Abdul Rasheed considered himself as permanent employee disputed the order of dismissal and made a representation to the Company on 30th May 1970, requesting the Company to set aside the order of termination of his services and re‑instate him, with full benefits Exh. "B". Thereafter the Executive Director gave personal hearing to Abdul Rasheed and offered him a sum of Rs. 500.00 in addition to the 'amount of Rs. 620.00 offered earlier, as per letter of termination Exh. "A". Subsequently the Executive Director of the Company sent a fetter Exh. "C" dated 6th July 1970, upholding the previous order of termination as lawful. Abdul Rasheed did not accept the offer made to him in the termination letter as he considers the termination order as illegal and unjustified, and he is entitled for re‑instatement with retrospective effect and continuity of service with all benefits. On the other hand the respondent's case is that they had started experimental work on machines and central lathes at the end of 1967. The work being experimental employees were appointed. The applicant was also appointed as temporary Turner @. Rs. 10.00 per day on 24th July 1968 to work on central lathe. The company imported an automatic machine in October 1969, as a result of which the services of Abdul Rasheed were extended from time to time. When the Turret lathe became fully opera tional, the work on central lathe was transferred to Turret lathe ; consequently the job of Abdul Rasheed was finished and his services could not be extended beyond 20th May 1970. The services of Abdul Rasheed were terminated on payment of Rs. 620.00. The amount of Rs. 620. 00 was offered as ex gratis payment, as a special case. On representation of Abdul Rasheed the Company offered Rs. 1,500.00 as a gesture of good will, but the applicant declined to accept it. Hence termination is justifiable in law.

The applicant, on behalf of Abdul Rasheed, examined four witnesses including Abdul Rasheed himself. Abdul Rasheed in his statement on oath states that he was initially appointed for three months and it was disclosed on him that he would be made permanent after working for three months satisfactorily. He worked for 22 months. During the period of his service he was not charge‑sheeted. He further says that no letter was issued by the Company with regard to the extension of his services from time to time, On termination of his services, he made a representation to the Company, whereupon the Company offered Rs. 500.00 in addition to Rs. 620.00 which were already offered in termination letter. He did not accept this offer and insisted for re‑instatement in service. He also states that when he joined the Company there were two persons working as permanent employees in the same section.

(II) Mr. South Gate, the Managing Director of the Com pany has admitted in his deposition that the Company had offered three alternate suggestions i.e.:‑‑

(i) An ex gratia payment of Mr. Abdul Rasheed Turner of Rs. 1,500.00 in full and final settlement of all his claims against the Company ; '

(ii) The matter be referred to Arbitration : and

(iii) The employee be re‑instated with effect from 1st October 1970 if he satisfactorily passes a trade test.

He further states that Abdul Rasheed was not terminated on account of inefficiency.

(III) Abdul Karim Khan, is not a material witness for the disposal of the case, hence his evidence is not discussed.

(IV) Mr. Naseem Khan, the Executive Director of the Company, was produced as a last witness on behalf of the applicant. He fully corroborated with the statement of the applicant, but differed on the point of termination of services and permanent employment of Abdul Rasheed, Turner.

The Company/Respondent examined, their Manager of Manufacturing Section. He stated that Abdul Rasheed was appointed temporarily on central lathe machine as it was an experimental work. On importation of an automatic machine, the work of Abdul Rasheed. Turner, was finished. Consequently he terminated the services of Abdul Rasheed and offered ex gratis payment of Rs. 620.00 as special case. He admits that by virtue of his length of service. Abdul Rasheed acquired the status of permanent employee but as per record of service maintained by the Company he was a temporary worker. He produced salary sheets for different months Exh. D/I to 4. He also admits that Abdul, Rasheed has rendered services to the Company with an unblamish record. His period of service was 22 months. In cross‑examination, he admits that no, no letter was issued with regard to the extension of services of Abdul Rasheed from time to time. The witness further admits that he did employ a temporary Turner after the termination of Abdul Rasheed. He also says that be did not call for Abdul Rasheed when the Company wanted to appoint another Turner in his place.

On close scrutiny of the evidence it become clear that Abdul Rasheed admittedly remained in the employment of the Company from 24th July 1968 to 20th May 1970. During this period the Company had no grievance of whatsoever nature against him and he had never been charge‑sheeted on any account. Mr. A. Q. Malik, the Manufacturing Manager has admitted that Abdul Rasheed was not intimated about the period of his service at the time when he was appointed and thereafter no letter was issued for the extension of service period from time to time. Abdul Rasheed has acquired permanent workers status by virtue of his length of service; but as per record he was temporary which indicates the intention of the Company.

I heard the arguments of both the representatives of the parties. The contention of the Union is that as per evidence on record. Abdul Rasheed is permanent employee sod the job on which he was working was of permanent nature. Under the circumstances and facts of the case the question of termination of Abdul Rasheed is not proper and just. Hence the Applicant/ Abdul Rasheed is entitled for re‑instatement with all benefits with retrospective effect.

On the contrary, the representative of the Company mainly stressed on the point of termination of an employee under Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, He says that the employer has power to terminate any employee irrespective of that whether the employee is a temporary of permanent worker by virtue of the aforesaid Ordinance. It support of his contention he relied on the authorities mentioned below:

I have gone through both the authorities. The facts and circumstances of these cases are different and under such circumstances, the employer has full power to terminate his employee either of a temporary nature or of a permanent. As such these authorities do not apply to the case in dispute.

The Union disagrees with the above contentions.

I find much force in the Union's contention, because it is an admitted fact that one of the three suggestions made by the Company, was that the Company was ready and willing to re‑instate Abdul Rasheed, if he passes trade test satisfactorily. It has also come in evidence that after the termination of services of Abdul Rasheed, the Company has employed another Turner in his place. This admitted fact goes to prove that the job on which Abdul Rasheed was working was not of a temporary nature, and the job is still existing.

In view of the above, I hold that the case, of Abdul Rasheed Turner is not a case of termination under Order XII of the Standing Orders Ordinance, 1968, whereas it falls under Orders XIII and XIV of said Ordinance as it is an illegal retrenchment.

Therefore, I award, re‑instatement of Abdul Rasheed Turner with retrospective effect, continuity of service and full benefits of leave bonus, provident fund etc.

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