S.M. MANSURUL HAQ Versus LEVER BROTHERS (PAK.) LTD., KARACHI

DECISION

This is an appeal filed by the appellant against an impugned order, dated 24‑9‑1984, passed by the Sindh Labour Court No. II, Karachi, who had dismissed the grievance petition under section 25‑A, I.R:O. 1969.

2. Brief facts of the case are that the appellant claimed to be a permanent workman of the respondent establishment working as Trade Mark Investigator since 1966 till the date of his termination of services, except for a short break in 1971‑72 due to Fall of East Pakistan. The appellant claimed that as he was associated with the C.BA. Union activities, there were serious difference between him and the respondent‑management, therefore, he was illegally removed from his employment on a frivolous and false ground that his job had become surplus, so, he was redesignated as Sales Representative and against this action of the respondent‑establishment, he had submitted a representation to the Marketing Director, the claim of the appellant was further that on 9‑10‑1982, he received letter of termination, dated 5‑10‑1982 which was not only illegal and mala fide, but, the fact was that the job of the Trade Mark Investigator had neither been abolished nor became surplus, but, the same was upgraded for which he possessed the requisite qualifications. The appellant claimed that the letter of termination of service was not issued by the competent authority, therefore, being aggrieved, he had served grievance notice upon the establishment followed by the present grievance petition under section 25‑A, I.R.O.,1969.

3. The respondent establishment resisted the petition, mainly on the grounds that due to reorganisation in the company in January, 1982, it was decided to upgrade the post of Trade Mark Investigator by abolishing the same from the clerical grade and placing it in Junior Management Cadre, therefore, before advertising the recruitment, the appellant and another workman, namely, Ejaz Hussain Ansari were interviewed and they were not found suitable. The respondent establishment further claimed that thereafter the appellant was provided an alternate job without reduction in his monthly emoluments and this offer was refused by the appellant. The respondent establishment claimed that after selection of three Trade Mark Investigators, the appellant was directed to perform miscellaneous jobs from time to time till he was provided full time assignment and in consequence thereof, he was again offered the job of Sales Representative, vide letter, dated 25‑6‑1983 which was subsequently refused by him on 24‑7‑1987. The respondent establishment claimed that as they had no alternate, therefore, they had terminated the services of the appellant being surplus worker. The respondent establishment claimed that after 26‑5‑1983, the appellant did not work as Trade Marks Investigator and that the services of the appellant were terminated by the competent authority, therefore, he was not entitled to maintain his grievance petition, which was liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court had passed the impugned order, hence, the present appeal.

5. I have heard Mr. S. Zainul Hassan, the learned Advocate for the appellant and Mr. Masood Ahmad Khan, the learned counsel on behalf of the respondent‑establishment and have also carefully perused the record and proceedings of the case. It was submitted by Mr. S. Zainul Hassan, the learned Advocate for the appellant that the impugned order is based, entirely on non- reading of evidence brought on record as the termination of services of the appellant was illegal, mala fide and a measure of victimisation as it was not the case of the respondent‑establishment that the post of Trade Marks Investigator was abolished, but, in fact it was upgraded. The learned Advocate further pleaded that in view of the evidence brought on record, it is crystal clear that the termination of services of the appellant was not on account of reorganisation, but, it was clear case of colourful exercise of discretion. It was further submitted by the learned Advocate that the appellant was having all the requisite qualifications to be retained as Trade Marks Investigator, as he was a Law Graduate having been appointed as such in the year 1966 and it was an admitted position by the witness of the respondent establishment that there is no material on record to prove that before advertising the post of Trade Marks Investigator after its upgrading, the case of the appellant was considered and that it is well‑recognised principal that while promoting to the executive and senior posts, there in no justification for outside recruitment, when necessary talent is available in the existing staff, therefore, it is established from evidence that the act of the respondent establishment in terminating the service of the appellant was mala fide, arbitrary and contrary to the principle of natural justice and the plea of reorganisation was vague and could not be justified and was not covered under Standing Order. The learned Advocate for the appellant lastly argued that the purported unlimited hire and fire powers of the Chief Industrial Relation Manager, as had been presumed by the learned Labour Court in its impugned order, was contrary to principles of natural justice, illegal, ultra vires and opposed to recognised principle's of labour laws and the witness of the establishment had failed to substantiate that such powers were in fact vested in him. I see much force in the contentions of Mr. S. Zainul Hassan, the learned Advocate for the appellant. While, on the other hand, Mr. Masood Ahmad Khan, the learned counsel on behalf of the respondent‑establishment has fully supported the impugned order and had reiterated his arguments, which he had submitted before the learned Labour Court. However, in view of the evidence brought on record and the legal as well as the factual aspect of the case and also considering the respective pleadings of the parties, I am of the views that the termination of the services of the appellant must be set aside and the appellant be reinstated in his original position as Trade Marks Investigator having full requisite qualification and his past long experience and continuity of his service. Thus, the impugned order is also to be set aside.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow this appeal. The appellant is directed to be reinstated in service as Trade Marks Investigator in the respondent establishment with only fifty per cent (50%) back benefits forthwith.

A.E./1158/Lb.S Appeal allowed.