SARDAR HUSSAIN Versus SECURITY AND MANAGEMENT SERVICES (PRIVATE) LIMITED, KARACHI

DECISION

1. Sardar Hussain and 11 others workmen of M/s. Security and Management (Pvt.) Ltd. (hereinafter referred to as the `petitioners') had filed a petition under section 25‑A of the I.R.O. before the Labour Court which was allowed but back benefits were denied to them. Their employers M/s. Security and Management (Pvt.) Ltd. (hereinafter referred to as the `employers') have filed separate appeals against those 12 petitioners while the latter have come in appeal claiming back benefits. I propose to dispose of these two sets of appeals by a common decision.

2. The facts forming the background of this dispute, shortly put are as follows.

3. It is alleged that the petitioners were in the service of the employers, as Security Guards, for a number of years and were assigned their duties at the Consulate General of the USA situated at Abdullah Haroon Road, Karachi.

4. On 1‑1‑1989 the petitioners were declared surplus and on 1‑2‑1989 their services stood terminated. It was said that the said termination of service was in breach of law. It was also asserted that the employers had all along continued to engage fresh Security Guards over since their removal.

5. The Consulate General of USA never entered appearance, and Written Reply was filed on behalf of the employers only. Inter alia it was alleged that the retrenchment was necessitated because of the `economy measures' adopted by the Consulate. It was further alleged that employment had been given to some of the retrenched staff but the terms which had been offered to the petitioners were not acceptable to them. The petition was therefore liable to be dismissed.

6. The petitioners appeared as their own witnesses while Major. (Retd.) Riaz Abbas appeared on behalf of the employers.

7. The Labour Court coming to the conclusion that the removal of the appellants was illegal, ordered their reinstatement. However as they had not mentioned in their affidavits that they were jobless they were not entitled to claim back benefits.

8. As the Consulate General of USA had been made a party to the proceedings and as there were certain averments made against them, I had asked Mr. Farooq H. Naek, learned counsel for the employers to look into the provisions in regard to the immunity provided to Foreign Governments and their Legations and Consulates in our country. Mr. Naek had taken care to place all the relevant provisions in that context. I am indebted to him for the pains taken by him.

9. Apart from the provisions of section 86‑A, C.P.C. he had referred me to the Diplomatic and Consular Privileges Act, 1972 (Act IX of 1972) and State Immunity Ordinance, 1981. The Act of 1972 was to give effect in Pakistan to the Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations, 1963, which were set out in the First Schedule.

10. He also referred me to the case of Ghulam Muhammad v. United States Agency for National Developments (US Aid) Mission, Islamabad reported in 1986 SCMR 907 in which reference was also made to some cases of foreign jurisdiction. It was observed therein that the provisions referred to earlier provided immunity to diplomatic agents from legal process, and precluded them from being sued before a Civil Court in this country. However it is not necessary to go into any details in that regard as manifestly there was no privity of contract between the petitioners and the Consulate General. They had been engaged by the Company on their own, and the Consulate had, nothing to do with the petitioners. Their only concern was that the Guards on duty at their Consulate were trustworthy and efficient.

11. The petitioners had impleaded the Consulate General also as a party. They had gone to the extent of saying in the petition that "the applicants are permanent workmen employed y the respondent No. 2 (the Consulate) through its different Contractors time to time appointed by it" etc. But hastily they had retraced their steps as will be made clear from paragraph 14 of the petition, wherein they had sought all the reliefs only from the employers and not the Consulate General.

12. The record clearly makes out that the appointments were made by M/s. Security and Management Services and the payments all along are from them. So was the notice and later the termination letters. Under the circumstances they were unnecessarily made a party to the proceedings.

13. It is alleged that the retrenchment was effected, because the petitioners had their postings at the Consulate General, and the Consulate General wanted to reduce the number of Security Guards and thereby save some of their money. I am afraid that all this talk of measures of economy is nothing but a frill, as the remaining Security Guards were being paid overtime, in the month of January and soon replacement followed. But that will be beside the point.

14. Admittedly the employers are in this business for a number of years. They have got a network of their offices at Lahore, Peshawar, Quetta and the twin Cities of Rawalpindi and Islamabad also, providing Security Guards to Legations and Consulates, Bankers, Business Corporations and any body who can afford to pay them. Major (Retd.) Riaz Abbas has clearly stated that they had been employing 20 to 25 persons per month after the removal of these respondents.

15. It has been alleged by (Retired) Major Riaz Abbas that the petitioners had been informed that if there was any need of replenishing their strength they would recall them. However, there is not even a shred of a paper to indicate that there was any promise made that way, or that they were offered fresh employments. We are told that there were meetings to bring them back but there are no minutes or record of the meetings. It is said that some of the staff that had been retrenched had been re‑employed on new terms. We are kept in the dark as to who they were and what were the new terms. Standing Order 14 reads as under:‑‑

2. "14. Re‑employment of retrenched workmen. ---Where any number of workmen are retrenched and are employer proposes to take into his employ any person within a period of one year from the date of such retrenchment, he shall give an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by registered post to their last known addresses to offer themselves for re?employment, and they shall haw preference over other persons, each having priority according to toe length of his service under the employer."

16. All these words of comforts are nothing but make believe. The facts are altogether different. There is a letter from Mr. Alfred L. Santos to M/s. Security and Management Services, the employers, in which 19 persons have been asked to be removed as they were undesirable Guards. The letter is as under:

3. "Due to change of residence shift hours from 8 hours to 12 hours per shift since January 1, 1989 we require less guards. Performance of some of the guards has been unsatisfactory. When preparing a list of guards to be dispensed with, we request that you terminate the services from the SMS contract with the Consulate the undesirable guards who are listed below:

4. No. ?????

5. SMS Card No. ???????????

6. ??????????? Name

7. Residence/Location ????? ???????????

1. ????????

8. A‑280 ?

9. Muhammad Paryal ?????? ???????????

10. D‑183

11. 2.

12. A‑055

13. Muhammad Zareen ?????? ???????????????????????

14. D‑183 ?????????????

15. 3

16. ???????????

17. A‑301

18. Mubarik Ali ????????????????

19. B‑54 ???????????????

20. 4 ?????????

21. A‑300 (5) ??????? ???????????????????????

22. Muhabbul Haq

23. B‑54 ???????????????

24. 5

25. B‑124 (6) ???????? ???????????

26. Muhammad Hussain ???? ???????????

27. C‑139

28. 6

29. A‑212 (7) ??????? ???????????

30. Maqbool A. Siddique ?? ???????????????????????

31. ??????????? C‑127 ?????????????

32. 7

33. A‑142 (8) ??????? ???????????????????????

34. Syed Muhammad Ali ???

35. C‑139

36. 8

37. A‑143 (9) ??????? ??????????????????????? ???????????

38. Sardar Hussain ???????????? ???????????

39. C‑116 ?

40. 9

41. A‑149 (10) ????

42. ? Shah Jehan ????????????????? ???????????????????????

43. D‑157 ?????????????

44. 10

45. A‑151 (11) ???? ???????????

46. Abdul Salam ????????????????

47. C‑72 ???

48. 11

49. A‑192 (12) ???? ???????????

50. Taj Muhammad ??????????? ???????????????????????????????????

51. C‑84 ???

52. 12

53. A‑154 (13) ????

54. Jamaluddin ??????

55. ???????????

56. C‑65 ???????????????

57. 13

58. A‑156 ? (14) ???

59. Muhammad Owais ?????? ???????????????????????

60. ??????????? Checker

61. 14

62. M‑036 (15) ???? ??????????????????????? ???????????

63. Shamsher Ahmed ???????? ???????????

64. Checker

65. 15

66. A‑152 (16) ???? ???????????????????????

67. Abdul Waseem

68. C‑72 ???

69. 16

70. A‑266 ? (17) ??? ???????????????????????

71. Muhammad Zareef ??????

72. 34 BYJ ???????????

73. 17

74. A‑210 (18) ???? ??????????????????????? ???????????

75. Muhammad Ismail ???????

76. C‑85 ???

77. 18

78. A‑27 (19) ?????? ??????????????????????? ???????????

79. Iqbal Ahmed ???

80. Office J. Guard

81. 19

82. A‑122

83. Muhammad Nazeer ?????

84. C‑65."

17. It transpires that the Security Guards had formed a Trade Union and all of the petitioners were office‑bearers; Sardar Hussain being the President thereof. We need not simulate as to the reasons, culminating in their removal, but manifestly it is not a case of retrenchment but of dismissal and that too without any enquiry.

18. Otherwise too it is also brought on the record that the employers were not maintaining any seniority list of their employees and manifestly that was in breach of Standing Order 13 of the Ordinance, as the principle of last come first go had not been followed. That by itself will make the orders of termination unsustainable as held in Islamabad Club v. Punjab Labour Appellate Tribunal etc. PLD 1981 SC 81.

19. Looked at from .any angle the termination of the services of the petitioners is indefensible and had to be struck down.

20. The Labour Court had however declined to award back benefits, as the petitioners had not asked for the same in their evidence. I have been shown that there was an express mention of their being jobless in para. 14 of their petition. The contents of the petition were re‑affirmed and reiterated in the affidavits filed by them. Looking to the principles laid down in Muhammad Bashir v. Punjab Labour Appellate Tribunal and another reported in 1991 SCMR 2087, I am of the opinion that they will be entitled to full back benefits from the day their services came to be terminated by M/s. Security and Management.

21. As a result the appeal filed by M/s. Security Management Services stands dismissed and the appeal filed by the petitioners is allowed.

85. Order accordingly.

86. H.B.T./2158/Lb.S ??????????????????????????????????????????????????????????????????????????????? Order accordingly.