MUMTAZ AHMED Versus R.B. INDUSTRIES (PVT.) LTD.
DECISION
This appeal is directed against the order of the learned Presiding Officer, Sindh Labour Court No. III at Karachi dated 8th January, 1991 whereby the joint grievance petition filed. by the appellants was dismissed.
2. I have heard Mr. Raja Shamsuzzaman for the appellants. Respondents are called absent and ex parte though served.
3. The brief facts appear to be that the appellants were admittedly workmen working with the respondents. The respondents owners purchased the factory on 3rd March, 1988 from the previous owners with a huge loan about 2-1/2 crores of rupees against the factory/respondents. The respondent factory used to assemble the T.V. Sets. The contention of the appellant is that the transaction of purchase of the factory by the respondents owners was mala fide as without doing or attempting to do any assembling work, they retrenched the present appellants on 15-2-1990 and then applied for the closure of the factory under section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on 20th June, 1990. The appellants aggrieved by the order of their termination from service, filed grievance petition. The learned Labour Court by its single order allowed the respondents to close the factory provided that they paid the dues of the workers but dismissed the grievance application of the appellants on the ground, that they were not able to show that termination of their services was mala fide.
4. All the appellants had received similar termination letters, one of which is reproduced as under--
"Due to continuous heavy losses, the Management is facing acute financial crisis and it has become impossible to continue your services any more. We, therefore, regret that your services have become redundant and are no longer required by us. Accordingly your services are hereby terminated on the principle of "first come last out" with immediate effect on payment of one month pay in lieu of notice. You are. advised to collect your legal dues, if any, from our office."
5. The seniority list of the workers of respondent factory has been produced at page No. 197 of R&P which shows that total number of workers working in the factory was 50 out of which 24 workers, who are present A appellants, were retrenched on 15-2-1990. Thus the provisions of Standing Order 11-A have not been violated as less than 50% of workmen had been retrenched.
6. The argument of Raja Shamsuzzaman that this transaction of purchase of factory was mala fide is not supported by any evidence on record. It is well-settled law that allegation of mala fides has to be specifically asserted and proved by the party who makes such allegation. Even if the allegation is true, in absence of any evidence, the learned Labour Court rightly rejected this contention of the appellants.-
7. However, the other contention of Raja Shamsuzzaman requires serious consideration. He submits that retrenchment was not made for the reason that there was any re-organisation in the factory but the reason was that factory was running in losses and therefore they wanted to close their factory and as such they retrenched the services of more than 50 workers and then applied within one week of the retrenchment "in permission to close the, factory under Standing Order 11-A. He therefore contends that in such case, the retrenchment should have been strictly made on the principle of "first come last go" irrespective of fact as to which type of work the workers were doing. The seniority list produced by the respondents clearly shows, that most of the retrenched workers were appointed in 60s or 70s whereas only 2 workers namely Shabbir Ali and Ejaz Ahmed were appointed in 1980 whereas Shoaib was appointed in 1983 and Naeemuddin was appointed in 1986. However among the workers who were not retrenched, Raza Muhammad was appointed on 28-7-1987 whereas most of the other workers were also appointed after the appointment of the retrenched workers. This retrenchment therefore which is alleged to be on the basis of first come last out, has not been made strictly on that basis. The termination orders are therefore not tenable and are liable to be set aside.
8. The termination orders of the appellants are set aside and they would be deemed to be in service till the Court allowed the factory to be closed. The appellants are entitled to full back benefits up to date of the closure of factory. Appeal disposed of accordingly.
H.B.T./1952/Lb. S Appeal allowed.