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Appeal No. KAR-313 of 1973, heard on 24th May 1973.

West Pakistan Industrial and Commerical Employment (Standing Orders Ordinance (VI of 1969)---

--- S. Os. 12(2) & 1 (b)---Badli---Termination of service---No notice etc. needed-Provisions of S. O. 1 (b) prospective from 15th November 1972 and not retrospective---Cause of action occurring before 15th November 1972---Badli, held, not entitled to procedural action for termination of service---Badli continuing in service due to stay order of Court and further due to general strike of workmen because employer did not want to aggravate situation by terminating service of such badli during general strike-Mere fact that Badli continued to remain in service after expiry of his term for reasons beyond control of employer, held, could not alter his status from Badli to a permanent employee.

M. A. Khan for Appellant.

Mohammad Safi Yousufzal for Respondent.

Date of hearing : 24th May 1973.

This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated April 18^th 1973, whereby the learned Labour Court ordered the re-instatement of the respondent with full back benefits and continuity of service. The facts giving rise to the impugned order are these.

2. The respondent, Muzaffar Khan, was appointed as a Badli Chowkidar to work up to 17th March 1972. Thereafter, the permanent employee applied for extension of leave, which was extended up to 31st March 1972. Therefore, Mazaffar Khan also continued as a Badli Chowki dar. Thereafter, again there was a vacancy of Bade appointment. Muzafar Khan applied to be appointed as a Badli. He was appointed from 17th April 1972 to 16th May 1972 in place of Joku Khan. The leave of Joku Khan expired on 15th June 1972, which was extended up to 30th June 1972 and Muzaffar Khan continued as badli in his place. In the meantime, however, Muzaffar Khan made an application under Order XXXIX, rule 1, for stay order and obtained stay order on 29th June 1972. The services of Muzaffar Khan, therefore, could not be terminated because of Stay Order after 30th June 1972. The Stay Order was vacated on 14th September 19'72, but in the meantime, the National & Grindlays Bank Employees' Union, (hereinafter called the respondent-Union), had gone on strike from 27th September 1972. The Management did not consider it adviseable to termi nate the services of Muzaffar Khan, as this may have aggravated the situa tion. The strike continued up to 23rd October 1972. Immediately after the strike was over, the Management terminated the services of Muzaffar Khan on 31st October 1972.

3. The respondent-Union made an application under section 34 of the Industrial. Relations Ordinance, 1969 (hereinafter called the Ordinance), before the learned Labour Court on 31st January 1973. The case of the respondent-Union in the application under section 34 of the Ordinance was that the services of Muzaffar Khan were terminated because of his Union activities. It is stated in paragraph 4, of the application that Muzaffar Khan "being an active member of the said Union started taking keen interest in the activities of the Union in particular from 27-9-72 to 23-10-72, when the applicant-Union was on a general strike for the acceptance of its demands".

4. On behalf of the respondent-Union, R. B. Ambar, General Secretary of the Union, filed his affidavit. It is noteworthy that Muzaffar Khan did not appear before the learned Labour Court. On behalf of the appellant Bank, John Derick Pereira, an officer of the Bank filed his affidavit. Both were cross-examined.

5. The learned Labour Court came to the conclusion that Muzaffar Khan was performing duties against a permanent post and, therefore, he was entitled to re-instatement and back benefits.

6. The main contention of Mr. M. A. Khan, the learned Representative for the appellant, was that from the evidence on record, it is clear that Muzaffar Khan was appointed as a Badli. He submitted that there is noth ing on the record to make out a case that the status of Muzaffar Khan from Badli changed to any other position. It was urged by Mr. M. A. Khan that the services of Muzaffar Khan were continued under the circumstances on which the Bank had no control. The services of Muzaffar Khan were to be terminated after 36th June 1972, but Muzaffar Khan obtained status quo order from the Labour Court on 29th June 1972. Thereafter, when the status quo order was withdrawn, the Union went on strike, which continued up to 23rd October 1972. Immediately, after the strike was over, the services of Muzaffar Khan were terminated and the reasons for the termina tion are clearly set forth in Exh. 3-C. Exh. 3-C, was produced by the General Secretary himself in his cross-examination. Whether a person was appointed as a Badli or in any other category is a question of fact. The appellant Bank had produced all the relevant documents appointing Muzaffar Khan as a Badli. A Badli is a workman "who is appointed in the post of permanent workman or probationer, who is temporarily absent." So far as the question of appointment of Muzaffar Khan as Badli is concerned, that cannot be disputed. The only question that requires consideration is, as contended by Dr. Yousafzai, the learned Representative for the respondent, as to what was the status of Muzaffar Khan after the expiry of his appoint ment as a Badli on 30th June 1972. 1 would consider this aspect of the case in the next paragraph which relates to Standing Order 1 (d) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968 (hereinafter called the Standing Orders Ordinance). Under Standing Order 12(2) of the Standing Orders Ordinance

"No temporary workman, whether monthly-rated, weekly rated, or piece-rated, and no probationer or Badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord."

7. I would now proceed to examine the contention of Dr. Yousufzai that Muzaffar Khan having continued in service after 30th June 1972, became a permanent employee of the Bank and, therefore, his services could not be terminated without following the procedure laid down for terminating the services of a permanent workman. Whether a person continued to work as a Badli or in any other capacity would depend upon the circum stances of each case. In this case, the admitted position is that Muzaffar Khan had obtained Stay Order on 29th June 1972, which continued up to 14th September 1972. As soon as the Court's order was vacated, the Union went on strike from 27th September 1.972. Muzaffar Khan, as admitted by the General Secretary of Union, had started taking keen interest in the activities of the Union during the period of the strike. The Management was afraid to terminate his services during the period of strike. It may have aggravated the situation. Immediately after the strike was over, i.e. on 23rd October 1972, the Management terminated the services of Muzaffar Khan from 31st October 1972. In these circumstances, it cannot be said that the Management had voluntarily continued the service of Muzaffar Khan as a Chowkidar. The appellant Bank was compelled by the circumstances to let Muzaffar Khan to continue as Chowkidar and pay his salary. I have come to the conclusion that Muzaffar Khan continued to be a Badli and, therefore, his services could be terminated without any notice, under Standing Order 12(2) of the Standing Orders Ordinance.

8. While disposing of this appeal. I may observe that Muzaffar Khan could not take advantage of Standing Order 1(b) of the Standing Orders Ordi nance, which became operative from 16th November 1972. Under the said 8 amendment, even a Badli, who had worked for 3 months or for 183 days, during any period of twelve consecutive months, would be deemed to be a permanent workman., This amendment being not retrospective, cannot be given effect to in the case of Muzaffar Khan. At any rate, this point was not taken in the application of the respondent Union.

9. I would, for the reasons given above, allow the appeal and set aside the award of the learned Labour Court dated 18th April 1973:

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