METRO GARMENTS INDUSTRIES, KARACHI Versus SINDH LABOUR APPELLATE TRIBUNAL, KARACHI

MAMOON KAZI, J.‑‑‑ This petition is directed against the order passed by the learned Sindh Labour Appellate Tribunal dated 26‑11‑1990, upholding the decision of the Third Sindh Labour Court, Karachi dated 7‑4‑1990 whereby respondent No. 3 was reinstated in service of the petitioners with full back benefits.

2. The said respondent was appointed as workman on 24‑4‑1988. The letter of his appointment shows that he was appointed as Stitcher with effect from 25‑4‑1988, on purely casual and temporary basis, for a period upto 15‑12‑1988. The letter of appointment further shows that after expiry of the said period, the services of the respondent No. 3 were automatically to stand "dislocated". The services of the respondent were also subject to dislocation/termination in case the work for which he was employed by the petitioners could be completed before the said period.

3. Admittedly the services of the said respondent stood terminated with effect from 15‑12‑1988 without an order in writing. Being aggrieved by such action, the respondent filed grievance petition before the learned Labour Court and the respondent was ordered to be reinstated in service with full back benefits vide order dated 7‑4‑1990. Being aggrieved by such order the petitioner appealed before the learned Sindh Labour Appellate Tribunal but without any success and the order passed by the learned Labour Court was upheld vide order passed by the Tribunal dated 26‑11‑1990. Although the learned Tribunal held that the respondent was a temporary workman but it agreed with the findings of the learned Labour Court that since no order had been served upon the respondent in writing by the petitioners as required by Standing Order 12(3) the action taken by the petitioners was violative of the said provisions of the law. The learned Appellate Tribunal further went on to hold that the work for which the respondent had been employed by the petitioners still went on in the factory and two other persons junior to the respondent still continued to work, therefore, the respondent had been retrenched on account of his being surplus.

4. Mr. Choudhry Muhammad Ashraf, learned counsel for the petitioners has strenuously argued that the respondent was a temporary workman, employed to do work of temporary nature and therefore, his services were terminated in accordance with his appointment order and no separate order in writing was required to be served upon the respondent.

5. It is pertinent to point out that workmen have been classified into different categories by Standing Order 1. "Temporary workman" has been defined by Standing Order 1(e) to mean as "a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months". It is also pertinent to refer to Standing Order 12 which places certain restrictions upon the freedom of the employer in case of termination of the services of workman. Standing Order 12(1) provides that "For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice". Standing Order 12(2) which is important for the purpose of determination of the question under consideration, further provides that In temporary workman, whether monthly‑rated, weekly‑rated, daily‑rated of piece‑rated, and no probationer or badly, shall be entitled to any notice if hi; services are terminated by the employer, nor shall any such workman be required to give any notice or paid any wages in lieu thereof to the employer ii he waves employment of his own accord." Standing Order 12(3) reference to which is also pertinent further provides that "The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed except by an order in writing which shall explicitly state the reasons for the action taken.

6. So far as the status of the respondent is concerned, it is not in dispute that the respondent was a temporary workman as he had been employed for work which was of a temporary nature, likely to be finished within a period not exceeding nine months. It may be further clarified that as was held by the Supreme Court in the case of Pakistan International Airlines v. Sindh Labour Court No. 5 (PLD 11980 SC 323), it will be the nature of work which will determine the status of a workman. If the nature of work is temporary and for a limited period, then even if the workman has worked for more than nine months, We would not be classified as a "permanent workman". Reference to Standing Order 12 further indicates that except for the case where the services of a permanent workman have been terminated for the reason of misconduct committed by him, the employer while terminating his services is only obliged to give him one month's or pay in lieu thereof. According to Standing Order 12(3) the employer is also obliged to terminate the services of a workman by an order in writing, explicitly stating the reasons for the action taken against him. The provisions of Standing Order 12(2) further indicate that no notice would be required to be given to the workman at the time of termination of his services by the employer. Consequently, the services of a temporary workman can be terminated by the employer at any time and no notice would be required to be given to him as in the case of a permanent workman unless the services are terminated on account of misconduct. It is pertinent to point out that the provisions of Standing Order 12(3) are applicable to all workmen, whether they be permanent or temporary workmen.

7. Now, turning to the facts of the case, it may be pointed out that according to the letter of appointment of the respondent, dated 24‑4‑1988, his services were to terminate automatically on 15‑12‑1988. It is pertinent to note that although the terms and conditions governing tire employment of the respondent were not entirely those as embodied in the said letter of appointment but as is provided by section 3 of Standing Orders Ordinance. The said section provides that:‑

"3. Enforcement of Standing Orders.‑ ‑‑In every industrial or commercial establishment, conditions of the employment of the workmen and other incidental matters shall, subject to the other provisions of this ordinance, he regulated in accordance with the Standing Orders."

The basic question, therefore, arises whether the petitioners were bound under Standing Order 12(3) to serve an order in writing upon the respondent stating reasons for the action taken. Needless to point out that even if the work for which the respondent had been employed had not been concluded till the time when the services of the respondent stood automatically terminated, the employer was at liberty to terminate the services of the respondent since the status of the respondent as temporary workman is not in question in the present case. We have already referred to Standing Order 12(2) which permits the employer to terminate the services of a temporary workman without notice or without payment of any wages in lieu thereof as he would be required to do in the case of a permanent workman. So far as the Standing Order 12(3) is concerned, no doubt, it provides in no unambiguous terms for a notice in writing giving reasons for the action taken but the object behind such a provision appears to be that the workman should know the reasons resulting in the termination of his service. The reasons should be such which can be sustained before a Court of law. In the present case, the letter of appointment not only states the reasons for which the services of the respondent were going to be terminated but the same even fixed the period after expiry of which the services of the respondent were to stand automatically terminated. In our view, the requirements of Standing Order 12(3) were already complied with by the petitioners when the letter of appointment dated 24‑4‑1988 was given to the respondent. Once the date on which the services of the respondent were to be terminated and the reasons for such action were communicated to him, in our view, the employer was not obliged to serve the respondent with another notice under Standing Order 12(3) particularly when the services of the, respondent could be terminated by the petitioners at any time without notice even if tile work for which the respondent had been employed' had not yet been concluded. Once the status of respondent No. 3 was not in dispute, it was for the employer to determine when his services would be required to be terminated. Consequently, in our opinion, both the learned Tribunals below were not justified in ordering reinstatement of the respondent in service.

8. In the result, we accept this petition and set aside the orders respectively passed by the learned Tribunals below. The parties are left to bear their own costs.

H.B.T./M‑1728/K Petition accepted.