1992 PLP 1138 (PLC(CS))

Mahmood A. Ghani for Appellants. Bashir Awan for Respondents. Date of hearing: 17th November, 1990. This is an appeal against the order, dated 12-4-1987, passed by the learned Presiding Officer, Sindh Labour Court No.VI at Hyderabad, whereby by the single impugned order, he allowed 4 separate grievance petitions filed by the above-named 4 respondents against the orders of termination of their services. By the impugned order, the respondents were ordered to be reinstated in service with all consequential benefits.

2. I have gone through the written arguments filed by Mr. Mahmood A. Ghani, learned counsel for the appellants and Mr. Bashir Awan, learned Advocate for the respondents. I have also gone through the record and proceedings of the cases.

3. The brief facts of the case are, that the respondents were admittedly workmen working in the Weaving Department of the appellants Mills. On 10-3-1985, each of the respondents received termination order dispensing with his services on the ground that, due to accumulation of about 5 lac metres of cloth, it was not possible for the appellants to keep running the Weaving Section which was being closed and his services were no more required. There were talks between the C.BA. and the Management in presence of Labour Department and other authorities and eventually they reached an agreement, dated 28-4-1985. As a result of which, the Weaving Department was re-opened and all the workers were re-employed including the respondents from 2-6-1985. However, the respondents took exceptions to the re-employment as fresh workmen and, therefore, after serving grievance notices upon the appellant on 2-6-1985, challenging the initial termination orders of 10-3-1985 filed grievance petitions before the learned Labour Court on 7-8-1985, praying therein, that the impugned order of 10-3-1985 be set aside and they be reinstated in service from the date of their termination with full back benefits and continuity of service. The appellants resisted the grievance petitions on the ground, that the order of termination of services was bona fide as they had closed their Weaving Section because of accumulation of defective cloth, which was not being disposed of. They had further contended that the respondents having been re-employed with effect from 2-6-1985, as a consequence of an agreement with C.BA. and the Management; according to which they were to be employed afresh, therefore, their grievance petitions were not maintainable.

4. It is not disputed, that the terms and conditions of the services of the respondents are governed by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. If the initial orders of termination were in violation of Standing Orders, then, subsequent agreement of C.BA., if any, would not validate such illegal orders and debar the workmen from seeking the redress against such terminations. This objection of the appellants, therefore, has got no force. Otherwise, the grievance notices and grievance petitions are not barred by limitation.

5. In the written arguments, Mr. Mahmood A. Ghani, the learned counsel for the appellants has also taken an objection, that the grievance petitions were not maintainable as they were not presented by the aggrieved persons, but, they were presented through an Advocate. He has relied on certain authorities in support of his contention. It may be mentioned that, no such plea was taken by the appellants in the written statement or even m the affidavit-in-evidence filed by the appellants' main witness, Sarwaruz Zaman, who is the General Manager. No such question was put to the respondents in their cross-examinations. As a matter of fact, the respondents except Mubarik Ali, were not even cross examined. No doubt, on the grievance applications, there is a note of the Reader of the learned Labour Court that the petitions were presented by the Advocate of the applicants (viz., the respondents herein), but, it does not show, that the respondents were not present alongwith their Advocate. Diaries of the cases show the presence of the respondents throughout the proceedings excepting on few dates of hearing. It may also be pointed that this plea was not raised before the Trial Court. Under the circumstances, at this stage, it cannot be said that the respondents were not present at the time of presentation of the grievance petitions and they cannot be denied redress only on this technical ground. No application was moved before this Tribunal for examining the Reader to show that the respondents were not present at the time of presentation of the applications. Mere entry by the Reader would not unsuit the respondents without giving them a chance to show if they were present or not at the time of the presentation of the grievance applications. This objection of Mr. Mahmood A. Ghani, therefore, is not tenable.

6. Coming to the merits of the case, the main witness examined by the appellants is the General Manager, Mr. Sarwaruz Zaman; who admits in the cross-examination that he was not in the employment of the Mills at the time when the impugned orders of termination of services of the respondents were passed and that he was not conversant with the factual position of the case. He has also admitted that cloth of 5 Lac metres could be produced in about 20/25 days with an average production of 25,000 metres per day. He has also admitted that if the machine produces defective cloth, its production is stopped immediately. The learned Labour Court has rightly posed a question as to why the production was allowed to continue for 20 or 25 days so that defective cloth of 5 Lac metres had accumulated. Even, otherwise, apart from the evidence of this witness, who was not even employed with the appellants at the relevant time, there is no evidence to show about this defective production. No doubt the employer has got right to reorganize his establishment and to close any Section of the Mill if he is undergoing losses and retrench workers as the consequence of such re-organization and closure but such a re-organization and closure should be bona fide and not as a cloak or colourful exercise to get rid of unwanted workers.

7. There is no documentary evidence to show that there were 5 Lac metres of defective cloth which was rejected by the Foreign as well as Local buyers as alleged by the appellants. There is also no documentary evidence to show, that as a result thereof the appellants had undergone any loss. I have already pointed that their main witness, Sarwaruz Zaman was not in existence at the relevant time. There is enough evidence on record to show that before the relevant time, there were strained relations between the workers and the management and there were complaints and counter-complaints made by them to the authorities. Even an F.I.R. was registered by the appellants which has been produced as Annexure `R-26'. There were also admittedly proceedings to bring about an amicable settlement between parties before the officers of the Labour Department as well as other authorities.

8. The case of the appellants appears to be that, it was a mischief of the workers including the respondents, who indulged in illegal activities and produced defective cloth. This act, if any, on the part of the workers, would amount to a misconduct and they could be removed from service only after observing the procedure as laid down under Standing Order 15(4) of the Standing Orders Ordinance, 1968. Their services cannot be terminated on the ground of closure of a particular section of the Mill by way of retrenchment, for which no genuine proof or reason has been produced by the appellants on record. The fact that the Weaving Section was closed in order to punish the workers including the respondents is also apparent from the fact that the appellants had agreed to restart the Weaving Section by an agreement, dated 28-4-1985 which is Annexure `R-1' on the record and also the fact that it was re-started on 2-6-1985. Major (Retd.) Sagheer Ahmed, who was the General Manager of the appellants before the appointment of Mr. Sarwaruz Zaman had admitted in his cross-examination that it was correct to say that whatever the actions were initiated or taken by the management against the workers, the same were with a view to crush the union activities in the Mill and that he admittedly advised the management not to victimise and harass the workers, but, they always said, that it was their Mill and they would run it according to their will. This admission of the ex-General Manager of the appellants Milk and the circumstances of the case discussed above, leave no room for doubt, that the closure of the Mill was not bona fide but the workers were mala fide removed from services. The termination orders of the respondents being mala fide have rightly been set aside by the learned Labour Court and I see no reason to interfere with the impugned order. The 'appeal is accordingly dismissed. M.Y.H./1822/Lb. S Appeal dismissed.