1982 PLP 940 (PLC(CS))

Ali Ahmed for Respondent. Date of hearing: 29th July, 1981. This appeal by M. Durvesh M. Rafiq and Company, the Weaving Con tractor of Messrs Rasheed Textile Mills Ltd., Karachi, is directed against a decision of the learned lI1rd Labour Court, given on 3‑5‑1981, allowing the grievance petition filed by the respondent workmen and directing the appellants herein to re‑instate him in service with full back benefits. The facts which form the background of this appeal, shortly stated; are that the respondent workman entered the service of the appellants establishment with effect from 25th May, 1980. On 7th September, 1980, the management terminated his service on the ground that due to an illegal strike of workers, the Rasheed Textile Mills had cancelled their contract. The respondent workman challenged the orders of his termination before the learned Labour Court. The appellant establishment resisted the grievance petition of the respondent workman on the grounds, firstly that the respondent was a temporary workman, who was not entitled to claim re‑instatement in service; and that secondly, the termination of services of the respondent was unaviodable as it was necessitated by the cancellation by Rasheed Textile Mills of the contract and hence, they had no employ ment to offer to the respondent. The learned Labour Court repelled both these contentions and held that the respondent had become a permanent workman and that further there was no tangible and reliable evidence to establish that in fact the contract of the appellants with Rasheed Textile Mills bad been cancelled. The appellant have now come up in appeal to this Tribunal. 2. 1 have heard Mr. Riaz Hussain Baloch, who appeared for the appellants, and Mr. Ali Ahmad Advocate, who represented the respondent workman. The first ground on which Mr. Riaz Baloch assailed the impugned decision was that as Rasheed Textile Mills had cancelled the contract of the appellants, the latter were forced to terminate the services of the respondent, since the appellants had been operating, on the basis of their contract with Rasheed Textile Mills, only the weaving department of the said mills. This contention is based on the letter, dated 8th September, 1980, from Rasheed Textile Mills and the evidence of Abdul Sattar, Labour Officer in the said mill. The letter in question reads as follows 8th September 1980.

3. A bare perusal of the above letter makes it clear that it does not terminate the contract of the appellants but merely gives notice to the appellants that the contract could be cancelled if the work in the weaving department was not started by 9th September, 1980. The appropriate course for the appellants thus was to at least wait till 9th September, 1980, before terminating the services of their workmen and not to terminate their services with effect from 7th September, 1980 even before the notice of cancellation of their contract was issued. It may also be pointed our that the appellants have not examined either the manager of Rasheed Textile Mills or the Director of the said mills who had signed the contract on behalf of the said Mills.

4. Although Labour Officer Abdul Sattar has testified that Rasheed Textile Mills cancelled the contract of the appellants pursuant to the notice, dated 8th September, 1980, he admitted that the same contractors started working the weaving department of the Rasheed Textile Mills from 20th September, 1980, under a verbal agreement. As he was not a party to the said agreement, his evidence in this behalf cannot be accepted. As rightly pointed out by the learned Labour Court if the original contract was in writing and specified in detail the terms and conditions of the contract, it is highly unlikely that a fresh contract would orally be entered into by Rasheed Textile Mills. As such, no fault can be found with the finding of the learned Labour Court that it had not been established that in fact the contract of the appellants had been cancelled by Rasheed Textile Mills. Even, if it be assumed for argument's sake that Rasheed Textile Mills had given notice of cancellation of the contract or cancelled the contract, the circumstances seem to indicate that the cancellation was withdrawn and the contract was allowed to be continued on the original terms and conditions.

5. It was next contended by Mr. Riaz Baloch that the respondent workman is guilty of infringement of section 48 of the Factories Act and, hence he has neither any right to be re‑instated in service nor to be paid any back benefits. This contention is based on the claim that the respondent workman, at the time that he was employed in the appellants establishment, was also working in the Waheed Textile Mills. There is, however, no evidence to show that during the period from 25th May, 1980, upto 7th September, 1980 or even on 20th September, 1980, the respondent was actually working in Waheed Textile Mills. As such this contention also fails.

6. Although the above contentions of Mr. Riaz Baloch, in my opinion, have no substance whatsoever, this does not mean that the respondent is entitled either to i.e.‑instatement in service or to full back benefits, as claimed by him or allowed to him by the learned Labour Court. In his evidence before this Tribunal it was admitted by the respondent workman that he was working in the Waheed Textile Mills since 1977, but as he was gate‑stopped on or about 1st August, 1979, he had filed a grievance petition against the said mills for unlawful term nation of services. His grievance petition was decided by the learned IInd Labour Court by its decision, date l 16th September, 1980. By that decision, the respondent workman was re‑instated in the service of Waheed Textile Mills with back benefits. The management of the mills, however, filed, an appeal in this Tribunal against the said decision. The parties thereafter negotiated a settlement through an arbitrator, according to which the respondent was re‑instated in the service of Waheed Textile Mills with effect from 1lth March, 1981, and further he was paid a sum of Rs.2,

500. The respondent has admitted in his evidence before this Court that he has continued to be in service of Waheed Textile Mills up to the present. He cannot, therefore, at the same time be entitled to re‑instatement in the appellants establishment, although the termination of his services by the said establishment is invalid. Further, more he can at best be entitled to back wages, only for the period that he had no other employment, i.e. from 8th September, 1980up to l1th March 1981, whereafter he was taken back in service in his old employment with Waheed Textile Mills. I would, accordingly, modify the decision of the learned Labour Court to the extent indicated above. The amount of back benefits awarded to the respondent workman i.e. from 8th September, 1980 upto 11th March, 1981 would be paid from the amount deposited by the appellants with this Tribunal at the time of admission of the appeal. If any balance remains, the same would b: refunded to the appellants. On the other band, if this amount is insufficient, then the appellants would have to pay the balance of dues to the respondents. Order accordingly.