1982 PLP 927 (PLC(CS))

47 . ......... ... . nor shall be- (a) save with the permission of the Conciliator, while any con ciliation proceedings are pending, or (b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.

6. It was contended by Mr. Kamal Mansoor Alam, that the words "otherwise punish" are the key words in this provision and clearly indicate the intention of the Legislature that it is only when it is pro posed to terminate the services of the workman by way. of punishment whether the termination be called discharge or dismissal, that permis sion from the appropriate authority is required. It may be pointed out that the definition of workman contained in section 2 of the I. R. O. specifically mentions dismissal, discharge, retrenchment lay off or other wise removal of a workman. The fact that the Legislature has specifi cally mentioned certain modes of termination of service is section 47, and has refrained from mentioning the other modes of termination of service is relevant as indicating the intention of the` Legislature. This intention is further made clear from the words "otherwise punish", which indicate that the Legislature had in view only cases or types of removal which were by way of punishment. "Dismissal" according to Standing Order is the maximum punishment which can be awarded to a workman under the said order and stringent conditions have been laid down for the award of such punishment. No doubt discharge is not a punishment prescribed is Standing Order 15, but it is frequently needed when punish ing a workman guilty of misconduct. In the Armed Forces, there is both an "honourable discharge" as well as dis-honourable discharge" the former being equated to dismissal from service. One of the meanings of the word "discharge", according to Ballentine's Law Dictionary, is "the dismissal of an employee". In the context in which the word 'discharge 'IA has been used in section 47, I. R. O., it appears that it has been used in this sense i. e. termination of services by way of punishment.

7. There would appear to be sufficient authority in support of the view that I have taken. . In the case of Pakistan Petroleum Workers Federation v. Burmah Shell Oil Storage & Distributing of Pakistan Ltd. & others (1961 P L C 1169) one of the issues which fell to be considered by their Lordships of the Supreme Court was whether the termination of services of 2 work men, by notice without the permission of the Industrial Court, during the pendency of an industrial dispute before the Industrial Court, was in contravention of the provisions of section 33 of Industrial Disputes Act, 1946, which provided that no employer shall during the pendency of adjudication "discharge, dismiss or otherwise punish any workman except for misconduct not connected with the dispute." It will be seen that the provision in section 33 of the Industrial Disputes Act in this behalf was almost identical with the corresponding provision in sec tion 47,

1. R. O. It was held by the Supreme Court that as the dis charge of the workmen was by reason of bona fide re-organization, there was no contravention of the provisions of section 33 of the Industrial Disputes Act. It accordingly set aside the finding of the Industrial Tribunal that there was such a contravention and the direction of the Tribunal, based on such finding, for the reinstatement of the 2 discharged workmen. Relying on this decision of their Lordships of the Supreme Court, my learned predecessor in the case of Workers' Union v. Indus Chemical & Alkalies Ltd, (1972 P L C 220), held that bona fide retrenchment during the pendency of an industrial dispute did not amount to discharge for the purposes of section 47,

1. R. O.

8. In the case of Maple Leaf Cement Factory v. Chairman Central Industrial Court (1961 P L C 1704) -which was decided by their Lordships of the Supreme Court after the decision in the case of Pakistan Petroleum Workers' Federation, the Supreme Court did not consider it necessary to decide whether the discharge under section 30, Industrial Dispute Act, 1946, means only a discharge as a punishment, but referred to 2 decisions in which the Industrial Tribunal had held that a discharge of a person employed for a specific period or for a specific job is not a discharge with in the meaning of section

30. In that case their Lordships of the Supreme Court held that the termination of employment of a person who was employed for a specific job for a specific period, upon the completion of that job or the expiry of that period, did not amount to discharge for the purposes of section 30, Industrial Disputes Act, 1946, and that the said section was not intended "to force on the employer person whose services are not needed by him." 1n the case of Glaxo Laboratories (Pak.) Ltd. v. Pakistan (P L D 1962 S C 60) their Lordships of the Supreme Court pointed out that there was a marked distinction between probationers and permanent workmen and it was within the right of the employer to terminate the services of a probationer for a bona fide reason even during the pendency of an industrial dispute.

9. Finally I would refer to a decision of the Indian Supreme Court reported as Banaras Ice Factory v. Workmen thereof (AIR 1957 S C 168). In that case the question which fell to be considered by the Indian Supreme Court was whether the word 'discharge' occurring in clause (b) of section 22, Indus trial Disputes (Appellate Tribunal) Act, 1950, includes termination of services of all workmen on a real and bona fide closure of his business by the employer. Section 22 of the said Act reads as follows: - "

22. During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall:- (a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them imme diately before the filing of such appeal, or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such appeal, save with the express permission in writing of the Appellate Tribunal".

10. It will be observed that the working of clause (b) of the afore said section is substantially similar to that of the provision in section 47, I. R. O., which is presently under consideration of this Tribunal. Repel ing the contention that the word "discharge' in the above section includes termination of the services of all workmen on real and bona fide closure of his business by the employer, it was observed as follows :- "The true scope and effect of sections 22 arid 23 of the Act were explained in Automobile Products of India, Ltd. v. Rukmaji Bala, 1955-1-SCR 1241: (S) A I R 1955 S C 258) (G). It was pointed out there that the object of section 22 was "to protect the workmen concerned in disputes which form the subject-matter of pending proceedings against victimization" and the further object was "to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exasperate the already strained relations between the employer and the workman. These objects are capable of fulfilment in a running or continuing industry only, and not in a dead industry. There is hardly any occasion for praying, for permission to lift the ban imposed by section 22, when the employer has the right to close his business and bona fide does so, with the result that the industry itself ceases to exist. If there is no real closure but a mere pretence of a closure or it is mala fide, there is no closure in the eyes of law and the workmen can raise an industrial dispute and may even complain under section 23 of the Act."

11. In the instant case, the case of the respondent establishment is that the entire weaving department was closed and consequently if the reasoning of the Indian Supreme Court in the above case is to be followed the discharged workmen of the weaving department can have no grievance nor be entitled to reinstatement, if the closure of the weaving department was for a bona fide purpose.

12. Mr. Ashraf Hussain Rizvi, however, sought to rely on the decision of my learned predecessor in the case of Liberty Printers Karachi v. Employees Union (1974 8 G C Note 5 at p. 3). No doubt in that case my learned predecessor, has observed that retrenchment during the pendency of an industrial dis pute can only be done with the permission of the Labour Court, but not only no reasons have been given in the judgment in support of the view, but the same learned Chairman, in the earlier case of Workers' Union v. Indus Chemical h Alkalies Ltd., had taken altogether a different view of the matter.

13. On a careful consideration of the circumstances, therefore, I am of the view that in the case of bona fide reorganization or retrenchment, it would be permissible for the employer to terminate the services of work men whose services are no longer required even during the pendency of an industrial dispute and in such cases, permission from the Labour Court would not be necessary.

14. This bring me to a consideration of the second contention raised by Mr. Ashraf Hussain that there was no evidence before the learned Labour Court to justify the closure of the weaving department. In support of his contention. Mr. Ashraf Hussain submitted that the only evidence led by the respondents in the 3 cases which are the subject matter of these appeals, is that of the time-keeper Bashir Ayub, and all that be has stated before the learned Labour Court was that the weaving department was closed with effect from 4th July, 1979 and that the said department is still closed. However, the reasons for the closure of the weaving department have been specifically stated in the orders, dated 2nd July, 1979 terminating the services of the 2 appellants. The relevant portions of the said orders read as follows :- "Due to lack of demand for some time past large' quantities of stock have been accumulating and at present the value of accumulated stock is well over rupees sixty lacs. The management had been avoiding retrenchment in the hope of improvement in conditions but now with the accumulation of huge stock, it has become wholly uneconomical for the company to continue the running of the weaving department in the circumstances, which are beyond the control of the management, the management has decided to close the weaving department and retrench the surplus workers. In effecting the retrenchment the principle of "Last person in first to go" on category, wise basis has been strictly followed and on that basis you are one of the workmen who have become surplus and therefore to be retrenched. Accordingly for the reasons stated above, your services are no longer required by this company and are hereby terminated with imme diate effect 1. e. with effect from 4th July, 1979."

15. The above grounds have not been seriously questioned by the appellants either in the grievance notices or in the grievance petitions. Moreover, the issue whether there was justification for the closure of the weaving department and the consequent termination of services of the workmen employed in that department was fully examined in the appli cation under section 34, I. R. O,, by the Union, both by the Labour Court and by this Tribunal that the respondent establishment had unsold stock at the close of the calendar year exceeding Rs.58,00,000 in value and that it was in further financial difficulties by reason of the fact that its Bank was not prepared to allow over-drafts exceeding the limit of 65 lakhs and in fact required the respondent establishment to reduce its over-draft to a reasonable amount , Although the said decision was given another case, in which the present appellants were not directly parties, that case was filed by the C. B. A., which has statutory right to represent the workmen. Mr. Ashraf Hussain, however, sought to argue that as the appellants bad ceased to be workmen in the respondent estab lishment after the termination of their services with effect from 4th July, 1979 the C. B A. could no longer represent them, but the proceedings by the C. B. A. were not only for the reinstatement of the retrenched workmen but also sought to challenge the closing of the weaving depart ment and since it was held that the weaving department had been closed due to a bona fide retrenchment, I can see no reason to depart from the view that I have taken in that case.

16. It was next contended by Mr. Ashraf Hussain that there was evidence before the learned Labour Court to show that the weaving department continued to function after the termination of services of the appellants with effect from 4th July, 1979. This contention is founded on the admission of the respondent's witness, Bashir Ayub. in the case of Rashid Ahmad (Application No. 127/79) that the weaving department continued to function till 27th July. 1979. However in another case of Rashid Ahmad (Application No. 1266/79), the same witness corrects himself and stated that in the former case he had made a mistake by giving the date 27th July, 1979 while the actual and correct date was 27th June, 1979. In view of this explanation of witness Bashir Ayub and in the absence of any other evidence to the contrary, I am inclined to the view that the weaving department in the respondent establishment was closed on or about 27th June, 1979 and has remained closed eversince.

17. It finally remains to be considered whether the services of more than 50% of the workmen employed in the respondent establishment were terminated by the management in contravention of the provisions of Standing Order 11-B. It was submitted by Mr. Ashraf Hussain that according to the registers produced by the respondent establishment, 46 workmen from the weaving department and 12 persons from the printing department were discharged on 4th July, 1979 while another 29 workmen were discharged from the weaving department on 4th July, 1979. There is, however, no evidence to show that 12 workmen from the Printing Department were discharged either in June or July, 1979. Mr. Ashraf Hussain sought support for his contention that 12 employees from the printing department were discharged from the fact that whereas the res pondent establishment had produced the attendance register of workmen in the printing department for the months of May and June, 1979 they had not produced such register for the month of July, 1979, suggesting the fact that no persons were employed in the printing department for the month of July, 1979. The non-production of the said register for July, 1979 however, is of no consequence, as it is not material for the determination of the present cases and from its mere non-production no inference can reasonably be drawn that any workers in the printing department had been discharged that the said department was closed. In fact it is no body's case that the printing department has been closed. Alternately, Mr. Ashraf Hussain contended that the register of attendance of the workers of the Printing department for the months of May and June, 1979 produced by the respondent establishment, was bogus. It has, however, been strongly denied by respondent's witness, Bashir Ayub, in the case of Rashid Ahmad (Application No. 13/80), that the said register is either forged or the printing department was closed. Since there is no evidence in support of the contention of Mr Ashraf Hussain, I find myself unable to agree with the submission that this register was false or that the print ing department was closed.

18. If we exclude the 12 employees of the printing department, in respect of whom there is no evidence that their services have been termi nated, there remain 75 workmen of the Weaving Department whose services were terminated. The register of workmen of the respondent establishments for the month of June, 1979 however, shows that the total number of employees in the respondents establishment was more than

160. Even if few of the employees who are said to be office, employees, are excluded then also the total number of workmen in the establishment at the material time was more than double of the workmen who were discharged during the months of June, and July 1979. 1: may also be pointed out that this very same issue was examined as some length by this Tribunal Appeal No. KAR-798/80 Adam Silk Mills v. Employees Welfare Union v. Adam Silk Mills Ltd. and it had come to the conclusion that there was no violation of the provisions of Standing Order 11-B as it had not been established that more than 50% of the workmen had been discharged or their services were terminated.

19. The upshot of the above discussion is that I find no substance in these 3 appeals and accordingly dismiss the same.