2012 PLP 47 (PLC)

ABDUL HAFEEZ CHEEMA (CHAIRMAN).

This appeal assails the validity of the judgment dated 9-6-2008 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore whereby the complaint filed by the appellant under section 46 (6 and 7) of the Industrial Relations Ordinance, 2002 for implementation of order dated 18-11-2000 of that very court was disposed of with slight modifications which were allegedly beyond the manda'te of the Labour Court.

2. The facts which led to this appeal briefly are that the appellant was appointed as Operator Shipping in the respondent establishment on 20-6-1993. His services were terminated on 30-5-1997. He challenged his termination through a grievance petition which was allowed by the learned Labour Court No.1, Lahore on 18-11-2000 (Mr. Zubda tul Hussai Presiding Officer) with a direction that the appellant should be reinstated , with immediate effect with full back benefits w.e.f. 1-1-1998. The respondent company issued a letter of reinstatement of the appellant to service on 27-11-2000 but again after only three days the services of the appellant were arbitrarily terminated vide order dated 30-11-2000 allegedly due to closure of Lahore Plant. According to the appellant this termination (both the orders were received on the same) was mala fide and was a ruse to avoid compliance of the Labour Court's order dated 18-11-2000.

3. The respondent establishment filed an appeal before the defunct Punjab Labour Appellate Tribunal, Lahore whereby stay order was granted to the establishment on 9-2-2001 with respect to back-benefits only. In the meantime Punjab Labour Appellate Tribunal was abolished and the pending cases including this were transferred to the Hon'ble High Court. However, the appeal was withdrawn by the establishment from the High Court on 15-10-2004. .

4. On the withdrawal of the appeal by the company the appellant sent an application to the respondents on 24-11-2004 requesting therein to take him on duty at Karachi and also to pay his back-benefits w.e.f. 1-1-998. This request of the appellant was declined. He however also referred to -a settlement/agreement entered between the management and CBA whereby a Golden Hand Shake Scheme (GHSS) was introduced for the workers of the company and for this purpose the respondent management also invited applications from the workers of Lahore Plant. This settlement was also applicable to the appellant on his reinstatement in service but he was denied the said benefits also. It was added that Wyeth Laboratories Pakistan Limited had merged into Cyanamid Pakistan Limited under the orders of the Hon'ble Sindh High Court dated 27-2-1997 passed in Writ Petition No.212 of 1996 filed by the management and consequent upon this merger the company was renamed as Cyanamid Pakistan Limited in place of Wyeth Laboratories Limited and in view of this development the appellant could have easily been transferred from Lahore to Karachi but the respondents intentionally violated the order of the court and avoided to grant the aforesaid benefits. A request was made therefore for his reinstatement in service at Karachi in compliance of the court order and grant of back-benefits w.e.f. 1-1-1998 to 15-10-2004 (the date of withdrawal of the appeal along with service dues plus GHSS benefits in case the company failed to reinstate him at Karachi Plant).

5. This petition was resisted on a number of grounds. It was contended that as his termination order dated 30-11-2000 has not been challenged by the appellant it has thus attained finality which superseded the earlier reinstatement letter issued from Lahore Plant. It was also asserted that there is no award or settlement existing in favour of the appellant and no relationship of employer and employee between the appellant and the respondent company at Karachi existed. According to the establishment the appellant was an employee of Wyeth Laboratories Limited, Lahore Plant and he was ordered to be reinstated at Lahore Plant and in compliance of the court order he was accordingly reinstated on 27-11-2000. Now he has nothing to do with the company at Karachi as the Lahore Plant had already been closed on 30-11-2000. As for the order dated 18-11-2000 by the Labour Court No.1, Lahore in favour of the appellant it was claimed that it was .not against Wyeth Pakistan Limited Karachi as such the appellant cannot claim benefits from the Karachi Establishment.

6. The parties were required to produce their evidence before the Labour Court in the application for implementation of the court order dated 18-11-2000. The appellant appeared as P. W.1 and reiterated the facts and produced the court order dated 18-11-2000 Exh.P.1, reinstatement order Exh.P-2, termination letter ofily after three days Exh.P.3, order passed by the Lahore High Court dated 15-10-2004 Exh.P.4 through which the Labour Appeal was withdrawn by Wyeth Laboratories 'Pakistan Limited. Exh.P.5 was the application for reinstatement which was replied by the management through Exh.P.6. According to him GHSS was offered to the other employees of the company but the said benefits were not given to him. The appeal filed by the respondent management before the Punjab Labour Appellate Tribunal was Exh.P-8, and stay order issued by the Tribunal on 9-2-2001 was Exh. P.7. the appellant further produced correspondence Exh. P.9 to Exh.P.11 and other documents showing payment made to another employee of the company namely Asma Naz who had been given the benefits of the GHSS vide Exhs.P.12 and P.13. Copy of the order of the Hon'ble Sindh High Court dated 27-2-1997 was. Produced as mark "B" Exh.P.14 was the certificate of closure of the, Lahore' Plant dated 9-9-2000. He also produced letter of the company Exh.P.15 and the order of the court dated 4-10-2001 Exh. P.16 along with few other documents of the establishment Exhs.P.17 to P.24

7. In rebuttal the respondent examined Mr. Tafazzul Khan, Senior Finance Manager, Wyeth Pakistan Limited, Karachi as RW-1. He stated that Wyeth Pakistan Limited at Karachi and Lahore Plant were different entities and there was no vacancy of Operator Shipping in Wyeth Pakistan Limited, Karachi. His services were terminated on the closure of Lahore Plant. Besides this the appellant had failed to challenge the termination order dated 30-11-2000. According to him before 1995 thecompany was known as Wyeth Laboratories Pakistan Limited registered at Lahore and Cyanamid Pakistan Limited was registered in Karachi in the year 1995. Both the companies were merged under the orders of the Hon'ble Sindh High Court' at Karachi and the new name to the company was given as "Cyanamid Pakistan Limited". This company had been running both the plants at Lahore and Karachi in the year 2000. The Lahore Plant was closed by the company in 2002. Again the name of the company was changed as Wyeth Pakistan Limited and GHSS was introduced before the closure of the Lahore Plant. It was added that the appellant had no case against Wyeth Pakistan Limited because he had already been reinstated at Lahore Plant. He had also produced report relating to the merger of the companies submitted in the Sindh High Court at Karachi Exh.R.2. In cross-examination he admitted that Wyeth Pakistan Limited has not been wound up so far. He pleaded ignorance qua the arrangement for transfer of legal obligations, proceedings after merger.

8. Thereafter another order was passed by the learned Labour Court on the application submitted by the appellant on the ground that in the judgment dated 9-6-2008 some clerical mistakes had occurred. The learned Labour Court No.1, Lahore issued notices to the parties and after hearing corrected the date of entitlement of back-benefits from 1-1-1998 to 30-11-2000 by means of order dated 16-9-2008. While disposing of the main grievance petition the learned Labour Court observed as under:- "

17. As the decision of the Court regarding providing back-benefits to the petitioner has not been complied with wilfully by the respondent Company, rather they had been flouting the same for one reason or the other, they are punishable in terms of section 46(6) of the Industrial Relations Ordinance, 2002. I, therefore, impose a fine of Rs.10,000 upon respondent No.1/Wyeth Pakistan Ltd, Karachi. The respondent Company is directed to implement this judgment within one month from today."

9. Arguments have been heard and record perused.

10. The case of the appellant precisely is that nobody has denied the fact that against order dated 18-11-2000 of Labour Court the appeal filed by the establishment was dismissed as withdrawn on 15-10-2004 as such the order of the Labour Court had attained finality. As for the intervening reinstatement dated 27-11-2000, the law requires that the act A of reinstatement ought not to be an empty formality but it must be real and adequate and nor a nominal or sham. It is noteworthy that the act of reinstatement for three days when the appeal is still pending and ultimately is withdrawn on 15-10-2004, consequently the order of the Labour Court dated 18-11-2000 attains finality. These facts clearly reflect the mala fides of the respondents. This tantamounts to a fraud on the statute as such this reinstatement order stood vitiated and law does not accord recognition to such an act as a valid act. Even otherwise, under section 47 of the Industrial Relations Ordinance, 1969, the terms and conditions of service shall remain unchanged while proceedings pending. It will be apt to reproduce the relevant provisions of, section 47:-- "47 Condition of service to remain unchanged while proceedings pending.

(1) No employer shall, while any conciliation proceedings or proceeding before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of the conciliation , proceeding or of the proceeding before the Arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he- (a) save with the permission of the Conciliator, while any conciliation proceedings are pending, or (b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending. Discharge; dismiss or otherwise punish any workman except for misconduct not connected with such dispute. " As such it shall be presumed that the disputes between the parties continued upto the withdrawal of the appeal from the High Court filed by the respondent management. So therefore, the reinstatement which was said to have been made on 27-11-2000 had no legal effect as such the subsequently termination is equally unwarranted and in violation of the provisions of section 47 ibid and shall have no sanctity or bearing on the case of the appellant.

11. It is equally noteworthy that this was a case of merger of the two companies and the law in this point is very clear. The rights and liabilities attached to the company shall also be the rights and liabilities of the company which emerges after the merger. It is nOw establishment legal position that when an establishment is taken over by another company the labour of the establishment goes with the work and no question of creating new posts would arise and permanent employees of taken over/mergerd establishment could not be terminated without any just cause. New Establishment could not take over the assets only but would also accept liabilities also. Since Cyanamid Pakistan Limited had taken the establishment (Wyeth Laboratories Pakistan Limited) after appellant at merger they were equally responsible to accommodate the app that he had filed an application before the Karachi It is noteworthy that he had filed an application before the management that to closed as them his services Karachi was Lahore Plant had sheer camouflage. After its closure it had re-merged with grator Vigor in the shape of Cyanamid Pakistan Limited at Karachi, therefore, the new company with new name was duty bound torreinstate him Karachi which has not been done. In fact they are appellant responsible now for fatigued the benefits of the appellant till to-date but the app tired of the long litigation and as submitted by his counsel he would be prepared to accept the back=benefits awarded to him w,e.f. 1-1-1998 B upto 15-10-2004 the date when the respondents withdrew their appeal from the Hon'ble High Court.

12. As for the order of the Labour Court qua back-benefits, the labour court had no mandate in law to review the earlier order passed by his learned predecessor on 18-11-2000.

13. In this view of the matter, the appeal is accepted with a direction to the respondents to re-calculate the back-benefits correctly including High the benefits upto the date of the withdrawal of the appeal Court plus other benefits to which the appellant is entitled including the GHSS including the fine of Rs.10,

000. The entire amount is allowed be with to the appellant within a period of one month. The appeal back-benefits in the above terms H.B.T./13/PLT Appeal accepted.