1992 PLP 691 (PLC(CS))

Date of hearing: 20th January, 1991. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad, dated 27-4-1988; whereby the grievance petition of the. appellant was dismissed.

2. I have heard Mr. Bashir Awan, learned Advocate for the appellant and Mr. Muhammad Moosa Laghari, the learned Advocate for the respondents and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that appellant was previously removed from service in January, 1986 but he .was ordered to be reinstated vide order, dated 26-5-1987. He was reinstated in service, vide order, dated 7-6-1987. However, the services of the appellant and one other workman, Muharram, were terminated on 18-10-1987 on the ground that the factory was closed and there was no possibility of its re-start. After serving the grievance notices upon the respondents, only the present appellant filed grievance petition which was resisted by the respondents, inter alia on the ground that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance) was not applicable to the establishment of the respondents.

4. The appellant has himself admitted in the cross-examination that he did not know if the factory was working in the last season and that at the time of termination of his service there were only 8 persons working in the respondent establishment.

5. The services of the appellant were terminated on 18-10-1987. To attract the provisions of Standing Orders Ordinance, it is necessary to show that the respondent had, in the preceding 12 months, at any time, employed more than 20 workmen as is provided in Standing Order 1(4)(a) of the Ordinance, which is reproduced, as under:- "1(4)(a)

every industrial establishment or commercial establishments wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months;"

6. There is no evidence on record to show that more than 20 workmen had been employed at any time during last preceding 12 months. But, the record shows that only 8 workmen had been employed. Mr. Bashir Awan, the learned Advocate for the appellant had argued that in the earlier case of termination of services of the appellant, the Labour Court had held that the Ordinance was applicable to the establishment of the respondents. However, admittedly the order of termination in that case was passed on 16-1-1986 and evidence in that case showed that within preceding 12 months in 1985, the respondents had employed more than 20 workmen. This would not prove that even in the last preceding 12 months from the date of termination of services of the appellant viz., 18-10-1987, the respondent still continued to employ more than 20 workmen. In the absence of such evidence, in my opinion, the provision of the Ordinance would not be applicable to the case of the respondents and, therefore, the Standing Order 11-A, which was relied upon by the Counsel of the respondents would also not be applicable.

7. Even, otherwise according to the respondents, the factory had been closed much before the termination of services of the appellant, but, he had been reinstated only under the orders of the learned Labour Court. Admittedly, there were 8 employees and there is no evidence that services of all the 8 employees were terminated. 1n the case of South British Insurance Employees Union v. Sindh Labour Court, reported in 1975 SCMR 49; their Lordships had held that the Labour Court's permission might indeed be the last step in process of closing down or an application may be made by the employer simultaneously with any other step he may have to take to wind up his business and close down his establishment. The Standing Order does not spell out any sequence in which the various steps closing down an establishment have to be taken by an employer. However, after that decision, Standing Order 11-A was further amended and words "no employer shall terminate more than 50% of the workmen" were added by Act No. XI of 1976. In the instant case, the number of workmen admittedly were 8 out of whom the services of 2 were terminated, therefore, it cannot be said that there was a violation of Standing Order 11-A.

8. Furthermore, the letter of termination of services, is in writing, showing explicit reasons for termination of services.

9. Viewing the case of the appellant from every angle, I do not find any illegality in the termination order which has been rightly upheld by the learned Labour Court. I see no merit in this appeal which is accordingly dismissed. M.Y.H./1847/Lb.S Appeal dismissed.