1992 PLP 75 (PLC)

Muhammad Humayoon Hassan for Petitioner. Mirza Muhammad Kazim for Respondent No.

2. Date of hearing: 28th May, 1991. SYED ABDUR REHMAN, J -This is a petition under Article 199 of the Constitution of Pakistan.

2. The brief facts forming the background of this petition are that respondent No.2 was employed by the petitioner in 1980 as a permanent workman. On 31-12-1987 petitioner terminated services of respondent No.2 on the ground that due to uneconomic productivity, it had decided to abolish the department in which respondent No.2 was working and to stop production in the establishment, and therefore, the services of respondent No.2 were retrenched. On being dissatisfied with this order respondent No.2 served grievance notice on the petitioner. On failing to get any relief he filed grievance petition before the Labour Court. The petition was resisted on the ground that respondent No.2 was not a workman and further that the termination of the services was due to bona fide retrenchment. The learned Labour Court held that respondent No.2 was a workman and not an employer. It, however, came to the conclusion that the services of respondent No.2 were terminated bona fide due to the re-organization of the establishment as work was given on contract basis and the employees were given an option to collect their legal dues and resign. Accordingly and consequently all the workers except respondent No.2 collected their legal dues and submitted their resignations.

3. Being dissatisfied with this order respondent No.2 filed an appeal before the Sindh Labour Appellate Tribunal, Karachi. No cross-appeal was filed by the petitioner against the findings of the Labour Court that respondent No.2 was a workman. The learned Tribunal came to the conclusion that the petitioner had not closed their establishment. Since they had to obtain permission from the Labour Court for closing the factory, thus it did not cease to work and continued working up to 30-12-1987. Thereafter also it continues to work but on contract basis as all the employees except respondent No.2 had chosen to resign after collecting their dues. In any case after the resignation of other workers respondent No.2 was the sole workman. Under Standing Order 11-A an employer cannot terminate the services of more than 50 per cent. of the employees, whereas in the present case respondent No.2 being the only employee the services of 100 per cent. of the employees were terminated by that order. The learned Labour Court also repelled the contention of the petitioner that Standing Order No.12 (3) applied to the present case.

4. We have heard Mr. Muhammad Humayoun Hassan, Advocate for the petitioner and Mr. Muhammad Kazim, Advocate for respondent No.2. Since there are concurrent findings of the two lower Courts that respondent No.2 was a workman and no cross-appeal was filed by the petitioner against the findings of the Labour Court in that behalf, therefore, it is conclusively established that respondent No.2 is a workman. It is also clear from the evidence that thp petitioners have not closed their establishment. They had obtained resignations from all the employees except respondent No.2. We restrain ourselves from entering into the controversy as to whether the resignations were given voluntarily or were obtained by fraud or compulsion. We are in full agreement with respondent No.1 (the learned Labour Appellate Tribunal) that on 31-12-1987 respondent No.2 was the only I workman in the petitioner's factory. Hence under Standing Order No.ll-A as $ amended under Act No.ll/1976 the petitioner could not terminate his employment as it amounts to termination of more than 50 per cent of the workmen.

5. It will be useful to reproduce the following extracts from the judgment of the learned Labour Appellate Tribunal:-- "The next contention of Mr. Mirza Muhammad Kazim is that after the resignation of other workers the appellant remained sole worker, whose services were terminated on 31-12-1987, and thereby the employer terminated the services of more than 50% of the employees in violation of Standing Order 11-A. Mr. Muhammad Humayoun argued that S.O. 11-A was not the relevant provision, but S.O. 12(3) is relevant which deals with the termination of the service of an employee and which has complied with by the management. Standing Order 12 (3) cannot be read in isolation from S.O. 11-A. Standing Order 11-A contains embargo on termination of services of more than 50% employees without prior permission of the trial Court. S.O. 11-A lays down the procedure for termination of services of the employees. Even after the permission is obtained from the Labour Court, under Standing Order 11-A, the procedure as laid down under S.O. 12 (3) is to be followed. Similarly the provision of S.O. 11-A would not become redundant or inapplicable where the employer adopts the procedure laid down under S.O. 12(3) while terminating services of more than 50% workers."

6. Mr. Muhammad Humayoun relied upon the case of Naimuddin v. Sindh Labour Court and others (1979 PLC 59) where it was held that there was no bar to closure of shift, section or department without permission of Labour Court. He also relied upon 1980 PLC 1224 (P.I.A. Sharers v. Rahim Bux). Both the cases were cited before the learned Labour Appellate Tribunal and were rightly held by it as inapplicable to this case.

7. We are, therefore, of the clear view that the petitioner has no case. Even otherwise respondent No.2 was a permanent workman in the petitioner's factory for more than last seven years. It was most unbecoming on the part of the petitioner to throw him out of the job without providing him adequate compensation or reasonable alternate job in the factory which continues working. It was also brought to our notice that respondent No.2 was agreeable to do the work on contract basis. The petitioner did not agree to accept this offer either or they agreed to any other reasonable settlement with respondent No.2, even during the hearing of this petition. Hence the petitioners have no equitable case. We, therefore, dismiss the petition. H.B.T./M-1513/K Petition dismissed.