1978 PLP 118 (PLC)

Kohistani for Respondents Date of hearing: 20th December 1976. These are 24 appeals against the order of the Labour Court involving common ground.

2. The respondents were working as Weavers in the Weaving Depart ment of the appellant. Since the production of weaving fabric was found to be uneconomical, the work was completely stopped and Jay‑off was effected from 27th December, 1975 to 9th January. 1976. There has no improve ment in the conditions, which were prevailing and, therefore, the Weaving Department was permanently closed w. e. f. 10th January 1976. In that Department there were in all 55 workmen whose services were terminated. Out of them 31 workmen served grievance notices and approached the Labour Court under section 25‑A, I. R. O. for re‑instatement. Subsequently, there was settlement with 7 workmen and, therefore, there remained the present 24 respondents whose cases were decided by the Labour Court.

3. The applications were resisted and various grounds were taken. One of the grounds taken was that there had been no violation of Standing Order No. II (A) of standing Orders Ordinance and, therefore, the termina tion of services was not open to any exception.

4. The respondents had filed the affidavit of Mohammad Rahim. Subsequently, it was agreed by both the parties that the cross‑examina tion of Mohammad Rahim be treated as evidence in all the cases. As a result of this agreement Mohammad Rahim was cross‑examined. During the cross‑examination, he denied having filed any affidavit. He, however, admitted that the Weaving Department was closed.

5. The learned Presiding Officer entertained the view that the appellant had not proved that the employment of less than 50% of the workmen was terminated and since no permission by the Court was sought to close down the establishment, the termination of service was illegal and invalid. The remaining objections raised by the appellant were also repelled with the result that the re‑instatement of all the 24 respondents was ordered. Aggrieved by this, the present appeals had been filed.

6. The only question, which has been agitated be fore me is whether there has been violation of Standing Order No, 11(A). In order to appre ciate the legal implication, it is necessary to reproduce it. It reads as under "Notwithstanding anything contained in Standing Order 11, no employer shall terminate the employment of more than fifty percent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion."

7. It is an admitted position that the Weaving Department of the mill was closed and the services of 55 workmen were terminated. According to the aforesaid Standing Order permission of the Labour Court is required in case the termination of the employment of more than 50% of the workmen is effected. The respondents led absolutely no evidence to establish that more than 50% of the workmen were retrenched as a result of the closure of the Department. The burden of proof was upon the respondents. It is rather unfortunate that the Labour Court erred in entertaining the view that the burden of proof rested upon the appellant. I asked the learned counsel for the respondents to point out from the record whether at any stage it was pleaded that the workmen whose services were terminated were more than 50 % but he failed to point out. His only reply was that a plea was taken that there was a violation of Standing Order No. 11 (A) to my view this was not enough. It being a question of fact ought to have been specifically pleaded. On the contrary, the learned counsel for the appellant produced before me statement indicating that there were 360 workmen in the mill before retrenchment and after retrenchment of 55 workmen there still remained 305 workmen. Since this statement has been produced before me for first time, I may not attach much value to it as the other side has no opportunity to rebut it, but as already observed the burden of proof lay upon the respondents and they failed to discharge it. Since it has not been established that the workmen whose services were terminated were more than 50 Y. of the workmen of the establishment there has been no violation of Standing Order 11 (A) of Standing Orders Ordinance.

8. In result the appeals are allowed and the order of the Labour Court is set aside. The applications made under section 25‑A, I. R. O. stand dismissed.