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Appeal No. SUIT‑624 of 1982, heard on 10th April, 1985.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S. O. 1 (b) &12‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑Termination of service of permanent worker‑Procedure of S.O. 12 not adopted‑Termination order illegal‑Employee of Mechanised Construction of Pakistan Ltd. putting in more than 9 months (7 years) service‑A permanent worker‑Transferred for service on a Project in Iraq mentioning in transfer order that "his services should stand terminated from date of his departure to Iraq" ‑Such condition in circumstances, held, illegal‑On repatriation reporting for duty in Pakistan but refused to join duty on plea that services stood terminated on departure for Iraq‑Cause grievance, in circumstances, held, arose on date of refusal to join duty -Grievance notice served immediately within 3 days‑Grievance petition filed on basis of such grievance notice, in circumstances, held, rightly accepted by Labour Court.

Fasihuddin for Appellants.

Nizamuddin Baloch for Respondent.

Date of hearing : 10th April, 1985.

This appeal is directed against the order of Sind Labour Court No. VII at Sukkur, dated 24th November 1982, whereby he had allowed the grievance petition of the respondent and directed that he be reinstated with full back benefits. The respondent Rasool Bux was employed as waterman by the appellants in the year 1974. On 10th January 1981, while he was working as helper at Khairpur, he was selected for sending to work at Delmaj Project, Iraq. He was, therefore, sent to work at Iraq where he worked for one year till 23rd February, 1982 when he was relieved to report for duty at the office of the appellants No. 2 i.e. Mechanized Construction of Pakistan Limited. He availed 36 days earned leave with effect from 21st February, 1982. After availing the leave he reported for duty to the appellant No. 1, i.e. the Project Engineer, M.C.P. Barrage Colony, Sukkur, but he was not accepted on the ground that his services has been terminated and he was consoled that his matter was referred to the Head Office at Lahore but he received no reply. Ultimately he gave grievance notice and finally filed the grievance petition.

2. That the appellants, on the notice of the Labour Court appeared on 20th May, 1982 and filed their reply statement Exh. 2. The reply statement reveals that the respondent was a contract employee and was not declared regular. That the services of the respondent were terminated from the date of his departure to Iraq, vide Order No. MCP/FT/SEC‑78/6, dated 7th January, 1981. Therefore, the question of his arrival report did not arise. The appellant has accepted the condition of termination of his services and the order, dated 7th January 1981, was bearing his signa tures. No right of the respondent has been infringed.

3. The respondent in support of his case had filed the affidavit Exh. 3 and the appellants in support of their contentions have filed Exh. 4 of Mumtaz Ali, the Senior Clerk of Appellant No. I.

4. The learned Labour Court struck three Issues, namely :‑

(i) whether the applicant is a permanent workman

(ii) whether the grievance notice given by the applicant is time barred

(iii) whether the services of the applicant have been legally terminated

5. As regards point No. 1, it is clear that the respondent worked right from 1974 to 20th February 1982 continuously for about more than 7 years. The definition of permanent workman is given under section 1 (b) of the Standing Orders which reads as under :‑‑

"A permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lockout, strike (not being an illegal lockout or strike or involuntary closure of the establishment (and include a badli who has been employed for a continuous period of three months for one hundred and eighty‑three days during any period of twelve consecutive months)".

6. In view of this definition the workman who has been engaged on work for permanent nature likely to last more than 9 months and has satisfactory completed a probationary period of three months is a permanent workman and in the present case, the respondent had worked for more than 7 years and as such his case comes well within the definition of section I (b) of the Standing Orders. Thus, the respondent is a per manent workman.

7. Admittedly the respondent was sent to a Project, known as Delmaj Project at Iraq by the appellants, vide, order, dated 7th January, 1981 Exh. 1‑B. He had reached Iraq on 10th January, 1981 as shown in the order, dated 14th January, 1981 Exh. 3‑A. He was repatiated to Pakistan under the same order Exh. 3‑E and has been granted 36 days accrued leave with effect from 21st February, 1982. After availing sanctioned leave for 36 days, the respondent had reported for duty, vide Exh. 3‑E. He was refused to join the duty on the ground that his services were terminated at the time of his departure from Pakistan, vide order, dated 27th March, 1982 passed on his arrival report, Exh. 3‑E. Therefore, he has given grievance notice, dated 31st March, 1982 within 3 days from the date of the order of refusal to take him back on duty. He, therefore, was found to be within time by the Labour Court and I think that the learned Labour Court is not incorrect.

8. As regards the contention of the appellants that the services of the respondent were terminated on the date of his departure from Iraq, vide order Exh. 1‑B, he was a permanent workman, therefore, his services cannot be terminated summarily. The services of the respondent can only be terminated adopting procedure under Standing Order 12 of the Standing Orders Ordinance. In the instant case no procedure was followed. In fact I have seen the Exh. 3‑B, wherein it is clearly shown that last Pay Certificate of Rasool Bux, Helper, has been paid upto 9th January, 1981 proceeding on transfer to Iraq. This Annexure Exh. 3‑B is important to be noted that actually he was transferred to Iraq. The word transfer does not involve the termination of services. It is irrational and illegal that permanent workman be terminated without adopting the procedure as contemplated in law but it is quite clear that he was transferred to Iraq. That means that his services were not terminated. In Exh. 2‑A in the last line, it is mentioned that "their services should stand terminated from the date of departure to Iraq." This is illegal and the appellants could not do. Although they have managed to get the signatures of Rasool Bux in Sindhi on the order, dated 7th January 1981, but this signature is without any meaning. The signature of the respondent does not mean that his services were terminated. Actually he was transferred to Iraq. The evidence of Mumtaz Ali Exh. 4‑A shows in cross‑examination that the respondent has not given any application for going to Iraq and that the selection of employee for sending to Iraq is made at Lahore. He has further admitted that they have executed an agreement with the respondent for sending him to Iraq and that it was not mentioned in the agreement that the services of the respondent would be terminated on sending him to Iraq. In view of these facts, the learned Labour Court has found that the real cause of grievance to the respondent has arisen on 27th February 1982, when he has been refused to be taken back on duty. The services of the respondent were illegally terminated. I agree with the learned Labour Court and as discussed above, this appeal has no force. Accordingly the appeal is dismissed.

A. E.

Appeal dismissed.

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