The Supreme Court has ruled that the services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken.
A three-judge bench of the apex court led by Justice Muhammad Ali Mazahar, while upholding the Sindh High Court order, has observed that according to the classification of workman provided in the Standing Order 1 of the Ordinance 1968, a “permanent workman” is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation, in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lockout or strike) or involuntary closure of the establishment; and a “temporary workman” is 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.
“Whereas Standing Order 12 of Ordinance 1968 accentuates that for terminating the 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 and 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 the notice.
“Moreover, no temporary workman, whether monthly-rated, weekly-rated, daily-rated or piecerated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay wages in lieu thereof to the employer if he leaves employment on his own accord,” says Justice Muhammad Ali Mazahar in his judgement.
The judgement notes that the procedure for retrenchment is explicated in Standing Order 13 of the Industrial and Commercial Employment Ordinance, 1968, which delineates that where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category.
“Furthermore, Standing Order 14 germane to reemployment of retrenched workman, contains the rider that where any number of workmen are retrenched and the employer proposes to take into employment 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 reemployment, and they shall have preference over other persons, with each having priority according to the length of his service under the employer.
“The proviso attached to the Standing Order expounds that in case of a seasonal factory within the meaning of Section 4 of the Factories Act, 1934, a workman who was retrenched in one season and reports for duty within ten days of the resumption of work in the factory in the immediately following season shall be given preference for employment by the employer.
“It is further provided that in the case of such a seasonal factory, the employer may by sending notice by registered post to the last known address of a workman who was retrenched in one season, requiring him to report on a day specified in the notice, not being earlier than ten days before resumption of work in such factory, and if such workman so reports he shall be given preference for employment and paid full wages from the day he reports.”