Pakistan Case Law
1990 PLC 213

ABDUL HAMEED KIRANVI vs SINDH LABOUR APPELLATE TRIBUNAL and others

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Citation1990 PLC 213
CourtSindh High Court
Case No.Constitutional Petition No, D-53 of 1989
Date1989-04-04
Judge(s)Mamoon Kazi and Wajihuddin Ahmed
Authored byMamoon Kazi
ResultPetition dismissed
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This constitutional petition challenges the decision of the Sindh Labour Appellate Tribunal, which set aside a Labour Court order reinstating the petitioner. The petitioner, an Empty Godown Supervisor, had his services terminated by the respondent employer citing the off-season closure of the factory. The core legal question was whether the termination was lawful under the relevant labour laws and whether the petitioner successfully discharged the burden of proving mala fides or victimization. The High Court held that the termination was a case of termination simpliciter, which complied with the statutory requirement of providing written reasons. The Court affirmed that while an employer must state reasons for termination in writing, the decision to declare an employee surplus remains the employer's prerogative unless proven to be colourable or in contravention of law. The Court ruled that the petitioner failed to establish mala fides or victimization, and thus, the Appellate Tribunal's decision to uphold the termination was correct. The key principle laid down is that in cases of termination simpliciter, the burden lies on the employee to prove mala fides, and an employer's decision regarding surplus staff cannot be questioned merely because the job was permanent.

Questions settled in this judgment
  • Does Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 require an employer to do more than state the reasons for termination in writing?
  • In a case of termination simpliciter, upon whom does the burden of proof lie to establish mala fides?
  • Can an employer's decision to terminate an employee on the grounds of being surplus be challenged solely on the basis that the employee's job was of a permanent nature?
Laws & provisions referred
  • Section 25-A, Industrial Relations Ordinance 1969
  • Standing Order 12(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968
termination simpliciterlabour lawmala fidesburden of proofworkmansurplus staffgrievance petition

ORDER

1. MAMOON KAZI, J.--This petition is directed against the decision of the learned Sindh Labour Appellate Tribunal, Karachi dated 28-9-1988.

2. The petitioner had been employed by the respondent No,1 as Empty Godown Supervisor to maintain the record of Empty Bottles. He also used to perform duties as a workman as and when required. However, by an order in writing dated 24-11-1985, the services of the petitioner were terminated by the respondent No,

1. According to the reasons stated by the respondent, the Factory was to remain closed due to off season and the services of the petitioner were no longer required.

3. Aggrieved by such action, the petitioner filed a grievance petition under Section 25-A of the before the learned Sindh Labour Court No, VI, Hyderabad which held that the petitioner was a permanent workman having worked for more than three months with the respondent No,

1. It also found that the job of the petitioner was of a permanent nature. It was also not impressed by the plea raised by the respondent No,1 that the petitioner had become surplus as according to it, the establishment of the respondent No,1 was doing business round the year. Consequently, the petitioner was reinstated in service with full back benefits.

4. The respondent No,1 filed an appeal before the learned Appellate Tribunal which has set aside the order of the learned Labour Court and upheld that of the respondent No,1.

5. After going through the decision of the learned Appellate Tribunal we find that the same is not open to exception. Even if, it is accepted that the petitioner was a permanent workman or that the nature of his job was not temporary, the same would still fail to advance the petitioner's case as the impugned order shows that the petitioner had failed to establish that the action of the respondent No,1 was tainted with mala fides or that the petitioner had been victimised or singled out for such action or that the juniors had been retained but he was ousted. Standing Order 12 (3) only imposes an obligation upon the employer not to remove, retrench, discharge or dismiss from service any workman, except by an order in writing which shall explicitly state the reasons for the action taken. The order issued by the employer terminating the petitioner's services in no way fails to meet the above requirements as it has been clearly stated that the Factory was being closed due to off-season and therefore the services of the petitioner were not required by the employer.

6. This is a case of termination simpliciter and in that case the onus was clearly on the petitioner to establish mala fides as pointed out by the learned Appellate Tribunal. The petitioner appears to have failed to discharge such onus, the only plea raised by him in this respect being that the factory of the respondent No,1 was not a seasonal factory and the job assigned to him was of a permanent nature. Be that as it may, but the decision of the respondent No,1 that the petitioner had become surplus cannot be questioned merely on that account, unless it is shown that the exercise of the right by the respondent No,1 was colourable or was in contravention of the law.

7. We are, therefore, of the opinion that the learned Appellate Tribunal has rightly set aside the order of the learned Labour Court which has failed to consider this aspect of the case.

8. No doubt, the learned Appellate Tribunal has also held that the petitioner was not a workman but even if such a finding is not accepted by us on the basis of the evidence discussed in the two orders of the learned Tribunal below, the same would hardly have any material bearing on the result of the other finding arrived at by the learned Appellate Tribunal.

9. In the result, we find no reason to interfere with the decision of the learned Appellate Tribunal and this petition is dismissed in limine.

10. MA.No, 152/89 has become infructuous and the same is also dismissed.

Cited by 10 cases

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