1993 PLP 173 (PLC)

M/s. Katha Digwell Mines Limited v. Shafqat Hussain Shah and another. (5) Appeal No. 159/92 M/s. Katha Digwell Mines Limited v. Samundar Khan and another. (6) Appeal No. 165/92 M/s. Katha Collieries Pakistan (Pvt.) Limited v. Muhammad Sadiq and another (7) Appeal No. 166/92 M/s. Katha Collieries Pakistan (Pvt.) Limited v: Samundar Khan and another (8)Appeal No 167/92 M/s. Katha Collieries Pakistan (Pvt.) Limited v. Shafqat Hussain Shah and another (9) Appeal No. 168/92 M/s. Katha Collieries Pakistan (Pvt.) Limited v. Muhammad Bashir and another (10) Appeal No. 169/92 M/s. Katha Collieries Pakistan (Pvt.) Limited v. Shah Muhammad alias Shah Pir and another. The appellants in these appeals have impugned the order passed by the Punjab Labour Court No. 5, Sargodha on 1st April, 1992 whereby the grievance petitions filed by the respondents were accepted and Messrs Katha Collieries Pakistan (Pvt.) Limited were directed to reinstate them with back benefits.

2. The case of the respondents was that they were employees of Messrs Katha Collieries Pakistan (Pvt.) Limited working on Mine No. 2‑‑Dhumman; Shah Muhammad alias Shah Pir as Tozeen Munshi (Weighing Clerk) since 1963, Muhammad Sadiq as Truck Driver since 1985, Muhammad Bashir as Truck Conductor since 1988, Shafqat Hussain Shah as Engine Driver since 1980 and Samundar Khan as Engine Driver since 1982. Subsequently, Mine No. 2‑‑Dhumman was assigned to Messrs Katha Digwell Mines Limited but since it was an ancillary enterprise of Messrs Katha Collieries Pakistan (Pvt.) Limited they continued to work on the mine and be paid by the management of Messrs Katha Collieries Pakistan (Pvt.) Limited. On 15‑5‑1990 their services were terminated without any reason and without any notice. After serving grievance notices on Messrs Katha Collieries Pakistan (Pvt.) Limited, they filed grievance petitions against both of them under section 25‑A of the Industrial Relations Ordinance, 1909 praying for their reinstatement with back benefits. They also claimed Rs.25,000 each as damages.

3. The appellants in their joint written reply opposed the petitions. They pleaded that the respondents were the employees of Messrs Katha. Digwell Mines Limited and on the closure of this concern, their services were terminated according to law. According to them, the grievance petitions were barred by time as the grievance notices were served on 16‑5‑1990 and the grievance petitions were filed on 4‑9‑1990. They also contended that no legal right of the respondents had been violated.

4. The respondents in support of their grievance petitions examined themselves as P.W.1. In rebuttal Abu Bakar, a clerk of Messrs Katha Digwell Mines Limited, entered the witness‑box as P.W.l. Both of them in their statements tendered some documents also. After appraising this evidence, the learned Labour Court vide its single order dated 1‑4‑1992 held that the grievance petitions were within time and that the removal of the respondents from service on 15‑5‑1990 was illegal. Accordingly, the grievance petitions of the respondents were accepted and they were reinstated as employees of Messrs Katha Collieries Pakistan (Pvt.) Limited with all the back benefits. Feeling aggrieved, Messrs Katha Collieries Pakistan (Pvt.) Limited and Messrs Katha Digwell Mines Limited have separately preferred five appeals each.

5. I have heard learned counsel for the parties and perused the record. Learned counsel for the appellants has contended that the respondents were the employees of Messrs Katha Digwell Mines Limited, that the services of the respondents were terminated as Mine No. 2‑‑Dhumman had to be closed on account of its having been flooded with water, that the services of the respondents were terminated after observing all the legal formalities but the record containing notices given to the respondents was stolen away by Shah Muhammad alias Shah Pir, one of the respondents and that the grievance petitions filed by the respondents were barred by time. He has further contended that Shah Muhammad alias Shah Pir was a Supervisor and not a workman. Learned counsel for the respondents has controverted the above contentions and raised an objection that the appeals were not signed nor the counsel for the appellants was engaged by a competent person..

6. In order to dispel the objection raised by learned counsel for the respondents, the appellants produced Mr. Abid Ali who is a Director of both the appellants. He deposed that Mian Rafiq Ahmad and Mr. Khalid Aziz were Chief Executive/Managing Director of Messrs Katha Collieries Pakistan (Pvt.) Limited and Messrs Katha Digwell Mines Limited, respectively. On behalf of the respondents, Shah Muhammad alias Shah Pir, one of them, examined himself in rebuttal but he did not belie the testimony of Mr. Abid Ali. The appeals and Vakalatnamas riled by Messrs Katha Collieries Pakistan (Pvt.) Limited were signed by Mr. Rafiq Ahmad as the Managing Director/Chief Executive and those filed by Messrs Katha Digwell Mines Limited were signed by Mr. Khalid Aziz as the Managing Director. Therefore, the objection has no force. Moreover, the respondents filed their grievance petitions against Messrs Katha Collieries Pakistan (Pvt.) Limited and Messrs Katha Digwell Mines Limited through their Managing Directors. They cannot now turn round and say that the Managing Directors of the two companies are not competent to file and sign the appeals.

7. The contention that Shah Muhammad alias Shah Pir, one of the respondents, was a Supervisor and not a workman was not pleaded in the written reply. He deposed as P.W. 1 that he was employed on the mine as a Weighing Clerk (Tozeen Munshi). This statement was not challenged in his cross‑examination. Abu Bakar (R.W.1), however, stated that Shah Muhammad alias Shah Pir was incharge of the mine but he admitted in his cross‑examination that there did not exist any written order appointing Shah Muhammad alias Shah Pir as incharge of the mine. Shah Muhammad alias Shah Pir did not have any power of hire and fire. Therefore, for all intents and purposes he was a workman.

8. Mine No. 2‑‑Dhumman was on lease with Messrs Katha Collieries Pakistan (Pvt.) Limited. According to Notification No. MD/ML‑KHB -COAL(5)/54, dated 5‑4‑1987 (Exh. R‑1) issued by the Director of Industries and Mineral Development, Punjab (Mineral Development Wing), the mining lease for coal over an area of 1351.55 acres of land situated near Dhok Chhab, District Khushab previously granted to Messrs Katha Collieries Pakistan (Pvt.) Limited was assigned and transferred to Messrs Katha Digwell Mines Limited with effect from the date of the notification. The respondents deposed that they were not informed of the assignment of the lease and they continued to work on the mine as the employees of Messrs Katha Collieries Pakistan (Pvt.) Limited and be paid by them. Abu Bakar who appeared as R.W.1 as an employee of Messrs Katha Digwell Mines Limited admitted in his cross -examination that after the assignment of the lease to Messrs Katha Digwell Mines Limited the respondents who were originally the employees of Messrs Katha Collieries Pakistan (Pvt.) Limited continued to work on the mine and they were not issued any fresh appointment letters by Messrs Katha Digwell Mines Limited, nor they were given any option whether they wanted their services to be transferred to Messrs Katha Digwell Mines Limited. Copies of annual returns of Messrs Katha Collieries Pakistan (Pvt.) Limited and Messrs Katha Digwell Mines Limited submitted on 5‑12‑1991 and 4‑12‑1991 respectively under section 156 of the Companies Ordinance, 1984 (Exhs. A‑3 and A‑4) show that both of them were filed by Mian Rafiq Ahmad as the Chief Executive and that the registered office of both the companies was situate in Rooms Nos. 18‑19, First Floor, Taj Arcade, 73‑Jail Road, Lahore. These documents also indicate that the management of the two concerns is the same and the formation of Messrs Katha Digwell Mines Limited was an internal arrangement of Messrs Katha Collieries Pakistan (Pvt.) Limited. This conclusion is further fortified by two letters, one written on 31‑5‑1990 by Mr. Rafiq Ahmad to Mr. Khalid Aziz and the other on 13‑9‑1990 by Mr. Rafiq Ahmad as Chief Executive of Messrs Katha Digwell Mines Limited to Shah Muhammad alias Shah Pir, one of the respondents. In these circumstances, the assignment of the lease of Mine No. 2‑‑Dhumman to Messrs Katha Digwell Mines Limited did not affect the character of the respondents as the employees of Messrs Katha Collieries Pakistan (Pvt.) Limited.

9. The services of the respondents were terminated on 15‑5‑1990. All the respondents deposed that their services were terminated without any reason and without any notice. The plea of the appellants m the written reply was that as a result of the closure of Messrs Katha Digwell Mmes Limited, the services of the respondents were terminated in accordance with law. They did not clearly allege that the respondents were served with notices nor any evidence of service of any notice on any of the respondents was adduced by them. Their only assertion in the. written reply was that the office record of Messrs Katha Digwell Mines Limited was stolen away by the respondents and, therefore, they could not be paid their wages. Abu Bakar, however, deposed as R.W. 1 that the record containing the termination notices which were serviced on the respondents was taken away by Shah Muhammad alias Shah Pir, one of the respondents. This bald statement of the clerk is merely an afterthought and a contrivance and, therefore, is not susceptible of credence. He stated that the notices were given by Mr. Khalid Aziz, Chief Executive of Messrs Katha Digwell Mines Limited. Mr. Khalid Aziz did not appear as a witness to depose to this fact. There is nothing on the record to indicate that any legal proceedings were taken against Shah Muhammad alias Shah Pir for the alleged theft of the record. In these circumstances, there is left no doubt that the services of the respondents were terminated verbally.

10. The respondents were permanent employees. The learned Labour Court has held that the termination of services of the respondents was violative of Standing Orders 11‑A and 12 of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Learned counsel for the appellants has argued that Standing Order 11‑A is not applicable as whole of the mine was not closed but work was stopped on a part of it on account of its having been flooded with water. It was never pleaded nor any evidence was led that the mine had to be closed partially due to its having been flooded with water. Nevertheless, even in that case the termination by a verbal order offended against the provisions of Standing Orders 11(3) and 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Standing Order 11(3) provides that if workmen are laid off on account of failure of plant or temporary curtailment of production or due to any cause beyond the control of the employer as mentioned in Standing Order 11(1), they are to get half the wages for first fourteen days and if the period of lay off is to be indefinitely long exceeding the period of fourteen days, then their services can be terminated after due notice or pay in lieu thereof. According to Standing Order 12(3), the services of a workman cannot be terminated nor can he be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. The impugned termination of the respondents was, therefore, invalid and unsustainable.

11. As regards the plea of the appellants that the grievance petitions were barred by time, the same has no force. The services of the, respondents were terminated on 15‑5‑1990, the grievance notices were served on the appellants on 11‑8‑1990 and the grievance petitions were filed on 28‑8‑1990. According to section 25‑A of the Industrial Relations Ordinance, 1969, a worker may bring his grievance to the notice of his employer within three months of the day on which cause of such grievance arises, the employer is to communicate his decision within fifteen days and if the worker is dissatisfied with the decision, he may file his grievance petition in the Labour Court within a period of two months from the date of the communication of the decision of the employer. In view of this provision of law, therefore, the grievance petitions filed by the respondents were within time. Learned counsel for the appellants has contended that the respondents had served first grievance notice in May, 1990 and referred in this behalf to copies Exhs. P‑1 and P‑

2. These two documents, in fact, are not grievance notices but copies of a representation which was submitted by the respondents jointly to the Managing Director of Messrs Katha Collieries Pakistan (Pvt.) Limited against their illegal removal from service.

12. So far as the back benefits are concerned, the respondents did not plead in their grievance petitions that they remained unemployed since the termination of their services. While appearing as their own witnesses, none except Shah Muhammad alias Shah Pir deposed that he remained jobless since the termination of his services. The observation of the learned Labour Court that all the respondents deposed without contradiction that they were jobless since their removal from duty suffers from misreading of evidence. Shah Muhammad alias Shah Pir while appearing as his own witness in his case, of course, said as P.W. 1 that they remained without job since their removal from service but since he did not appear as a witness of the other respondents in their cases and they themselves did not assert so in their statements, his testimony cannot be taken into consideration qua them. As regards Shah Muhammad alias Shah Pir himself, since his statement in this respect goes beyond his averments in the grievance petition, it cannot be relied upon. For these reasons, all the respondents are not entitled to the back benefits.

13. In the result, the impugned order of the learned Labour Court directing the reinstatement of the respondents in service as employees of Messrs Katha Collieries Pakistan (Pvt.) Limited is maintained but is set aside to the extent of payment of the back benefits to the respondents. With this modification in the impugned order, all these appeals are dismissed. H.B.T./747/P Order accordingly.