1981 PLP 676 (PLC(CS))

As a measure of re‑organisation and with a view to switching over to a more economical and smoother system of providing transportation facility to the affected staff in the Mills, it had been decided that as from 29th October, 1978 the two staff pick‑ups shall cease to operate. Similarly it has been decided that as from the same date no member of the Senior Management will be provided a chauffer -driven car. Accordingly, all drivers presently employed by the Mills have become surplus to its requirement and you being one of them, your services are hereby terminated with effect from 28th October, 1978. You will be paid one month's salary in lieu of notice, besides gratuity and other dues if any. Should the mills decide to employ any driver within one year of the date of termination of your employment i.e. from 29th October, 1978 you will be considered for re‑employment if and as required by law. Yours faithfully, for GLOBE TEXTILE MILLS LTD. (Sd.) Factory Manager."

2. Both the appellants, by separate grievance petitions, challenged the above orders before the learned Fourth Labour Court, which has dismissed their petitions, by a common order, dated 25th February, 1980. The learned Labour Court while repelling the contentions of the appellants that they were victimised on account of their demand for overtime wages or that they were asked to tender their resignations under threats that otherwise their services would be terminated, has held that the action taken by the respondent trills does not amount to colourable exercise of their power and that the appellants have failed to establish that any driver, junior in service to the appellant, or in fact any drier was retained in service by the respondent‑Mills after 29th October, 1978, The appellants have now come up in appeal against the said orders of the learned Labour Court.

3. Although under clause (1) of Standing Order 12 even the services of a permanent workman can be terminated upon giving him one month's notice or wages for the said period in lieu of notice and passing an order in accordance with the provisions of clause (3) of the said Order, the latter clause entitles the workman concerned to file a grievance petition against the termination of his services and thereupon the Labour Court is required, as provided in subsection (5) of section 25‑A, I. R. O. to go into all the facts of the case and pass such orders as may just and appro priate in the circumstances of the case. In the case of Crescent Jute Products v. Muhammad Yakub (P L D 1979 S C 207), their Lordships of the Supreme Court had occasion to consider the scope of the provisions of section 25‑A, and observed as follows :‑ "In subsection (5) of section 25‑A of the Industrial Relations Ordi nance XXIII of 1969, it is laid down that "in adjudicating and determining a grievance under subsection (4), the (Labour Court) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case". From the language of the statute hereinbefore reproduced it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circum stances of the concerned case it was justified or not, both on merits as well as law. The words "shall go into all the facts of the case" are a clear guide with regard to the wide scope of the enquiry which a Junior Labour Court undertakes under sec tion 25‑A. These words indeed have been used with a purpose have to be given full effect so as to achieve the result desired. These words show that when a case is brought before a Junior Labour Court, the scope of enquiry is wider than for example the scope of a Tribunal examining only the legality of an order impugn ed before it. The words "shall go into all the facts of the case" clearly signify that the Junior Labour Court has full and complete powers to enter even into questions of fact and arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. By use of these words the intentions of the Legislature appears to provide a double check, one in the form of a domestic enquiry to be held by an employer and the other in form of a judicial determination by the Junior Court itself. In other words the intention of subsection (5) of section 25‑A appears to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based. If that was not so, then there was no occasion for using the words "shall go into all the facts of the case", which in our view, define the jurisdiction of the Junior Labour Court as a tribunal of facts, with. regard to the matters which may have been dealt with by the domestic tribunal or the employer. Therefore, if the Legislature in its wisdom has chosen the words of far‑reaching consequence, we do not see how their meaning can be whittled down and the provision construed in a limited sense as it (for example) the Junior Labour Court was hearing a second appeal within the meaning of section 100, Cr. P. C. or a revision under section 115, C. P. C. The reason is also not far to seek, because, as pointed out earlier, it was intended to provide a forum to check against arbitrary, capricious, and camouflaged dismissals."

4. It has, therefore, to be seen whether the orders terminating the, services of the two appellants are justified, both on merits as well as law ,I w and are not arbitrary, capricious or camouflaged termination of services.

5. Now, according to the orders terminating the services of the two appellants and the other drivers, the action was taken as a measure of re‑organization and with view to switching over to a more economical smoother system of providing transportation facility to the affected staff.". Although retrenchment in consequence of bona fide reorganiza tion is undoubtedly permissible, but as observed by this' Tribunal in the case of Corning Glass Pakistan Ltd. v. Muhammad Hanif and another, decided on 1st March, 1980 "if there is no genuine re‑organization and it is used merely as a cloak, to get rid of an employee who is not liked or wanted by the employer or whom he finds inconvenient for any reason, or for the purposes of by‑passing the provisions relating to the dismissal of a workman, the discharge or termination of services of the workman would be liable to be set aside". It was therefore, for the respondent Mills to establish that not only there was re‑organization in the matter of transportation of the workers of the mills but that further such re‑organi sation was bona fide. Merely stating in the orders terminating. the services of the appellants that there was such re‑organization is not enough. Mr. Abdul Hafeez, the learned representative of the respondents, in support of his contention that there was genuine re‑organizition in the respon dent mills relied heavily upon the fact that the services of all the drivers in the mills were terminated by the orders, dated 28th October, 1978. This fact, however, is disputed by the appellants. It was asserted by appellant Usman in his evidence before the learned labour Court that two drivers, by name Saleem and Iqbal, who were junior to the appel lants, were working in the respondent mills. Mustafa Jan, an employee of the respondent mills, and Abdul Majeed, a former employee of the mills, have also testified that the junior drivers are still working in the mills, though they did not give their names. Saleem, one of the drivers, who according to the appellant Usman was still employed by the respon dent‑Mills, was examined by this Tribunal to ascertain whether there was any substance in the plea raised by the appellants. He has testified that on being told that his services were no longer required by the respondent mills, he had settled his accounts and left the service of the Mills. He has, however, further testified that some 3 or 4 months later, he was employed by Naqshbandi Industries, a sister establishment of the respon dent‑Mills, and was given charge to drive Van No. 664, which he had been previously driving for the respondent mills and in the said Van he used to transport not only the staff of the Naqshbandi Industries, but also the staff of the respondent mills. The witness thus has on one hand, contradicted the allegation of the appellants that he and another junior driver were either retained in service or employed by the respondent mills after their services were terminated, for although Naqshbandi Industries may be a sister establishment of the respondent mills, but is admittedly a separate establishment, and on the other hand contradicted the version of Muhammad Umar, the Personnel Manager of the respondent Mills, that after terminating the services of the drivers, the respondent mills had contracted with one Khamiso to transport the staff of the res pondent mills. The existence of the alleged contract with Khamiso becomes still more doubtful in view, firstly of the admission of Muhammad Umar that the contract with Khamiso was an oral contract, for it is hardly likely that a limited company like the respondent mills would make an oral contract in respect of such an important matter, and secondly, neither the respondent mills examined Khamiso nor it was possible to secure his attendance in Court in spite of repeated issue of process to hint, directly and through the respondent mills. Since the plea of re‑organization is based on the alleged contract with Khamiso, and as existence of this contract has not only been established but further it has been contradicted by the evidence of driver Saleem, it cannot be said that there was a bona fide re‑organization in the respondent mills regarding the transport of its employees. The existence of the contract with Khamiso becomes further doubtful because the evidence was led even to show that any payment wag made to him for the work done by him under the contract and the admission of witness Muhammad Umar before this Tribunal that the staff of the mills now comes to work on its own and is now being paid a conveyance allowance. As such, the existence of a bona fide re‑organization till the switch over to the payment of con veyance allowance to the staff of the respondent mills is not established. This, however, would not entitle the appellants to reinstatement in service as clearly the respondent‑Mills presently have no need for drivers and in fact have no vans or other vehicles on which the appellants could be employed. They would, however, be entitled to wages for the period from 29th October, 1978 when their services were terminated upto the time, when the respondent mills switched over to the system of the payment of conveyance allowance to the staff in lieu of transporting them. However, it is not only not known when exactly this system was introduced in the respondent mills, but further there is no evidence on record to indicate whether the appellants have been gainfully employed elsewhere, at least since the time of filing the grievance petitions on 19th November, 1978. It is hardly likely that the appellants would have remained unemployed for over 2 years, specially when there is great dearth of experienced drivers of which judicial notice can well be taken.

6. In the circumstances, therefore, I would award to the appellants, in addition to the notice pay for one month admissible to them under clause (1) of Standing Order 12, wages for the period from 29th October, 1978 up to 19th November, 1978 when they filed grievance petitions before the learned Labour Court. The two appeals are allowed to this extent only. Appeals allowed.