1975 PLP 49 (SCMR)

(On appeal from the judgment and order of the High Court of Sind & Baluchistan made on the 24th of April 1974, in Petition No. 55 of 1974). (a) Industrial Relations Ordinance (XXIII of 1969)‑

‑‑ S. 35(3)‑Presiding Officer of Labour Court‑Qualification‑Person proposed to be appointed as Presiding Officer of Labour Court

Need not have actually worked as District Judge or Additional District Judge for any length of time‑Civil Judge promoted to officiate as Additional District Judge‑Fulfils required qualification. (b) Constitution of Pakistan (1973)‑

‑‑ Art. 185(3)‑Special leave to appeal‑Point not taken before High Court‑Could not be allowed to be urged in special leave to appeal proceedings. (c) Went Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑ S. O. 11‑A‑Closure of establishment ‑‑Standing Order 11‑A‑Does not spell out any sequence of various steps to be taken in closure of establishment‑Application to Labour Court for permission to close down‑Need not be first step in process‑Labour Court's permission‑Could well be as last step in process. The Standing Order 11‑A does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process. All that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this behalf. Thus the Labour Court's permission might indeed be the last step in the process of closing down, or an application in this behalf may be made by the employer simultaneously with any other step that he may have to take to wind up his business and close down his establishment. The Standing Order does not appear to spell out any sequence in which the various steps for closing down an establishment have to be taken by an employer. Nasim A. Farooqi, Advocate instructed by V. A. Kidwal, Advocate‑on- Record for Petitioner. Nemo for Respondents. Date of hearing : 16th September 1974. ORDBR ANWARUL HAQ, J.‑--Feeling aggrieved by an order made by the Sind Labour Court No. 4 on 3‑1‑1974 under Standing Order 11‑A permitting the South British Insurance Company Ltd. to close down its establishment at Karachi, the petitioner, namely, the South British Insurance Employees' Union, moved a Constitution petition before the High Court of Sind & Baluchistan. It contended that:‑ (a) There was not sufficient evidence to establish that the respondent Company's business could not be carried on except at a loss; (b) The Labour Court constituted under the Industrial Relations Ordinance, 1969, was not competent to entertain the respondent's application under Standing Order 11‑A in the absence of a notification by the Provincial Government empowering it in this behalf; (c) The Labour Court concerned was not properly constituted in accordance with the requirements embodied in subsection (3) of section 35 of the Industrial Relations Ordinance, as the Presiding Officer, Mr. Abdul Hamid Baloch, was only a First Class Civil Judge and not a District Judge or an Additional District Judge, as he had not worked as such even for a single day before being appointed as Chairman of the Labour Court; and (d) The respondent‑Company's conduct in seeking the closure of its establishment at Karachi was in breach of the Memorandum of Settlement between the Company and the petitioner‑Union dated the 5th of February 1973. All these contentions were repelled by a learned Judge of the High Court and the Constitution petition was dismissed by his order dated the 24th of April 1974. The petitioner now seeks special leave to file an appeal against this order. Out of the grounds urged before the High Court, Mr. Nasim A. Farooqui has pressed before us only the question of the qualification of Mr. Abdul Hamid Baloch to act as the Presiding Officer of the Labour Court concerned. He also raises an additional point to the e8'ect that the respondent‑Company had acted illegally inasmuch as it had completed several other steps for closing down its business at Karachi before moving an application under Standing Order 1 I ‑A. We see no merit in either of these submissions. According to subsection (3) of section 35 of the Industrial Relations Ordinance, "a person shall not be qualified for appointment as Presiding Officer unless he has been, or is, qualified to be, a Judge or Additional Judge of a High Court, or is a District Judge or an Additional District Judge". Now, it is correct that Mr. Abdul Hamid Baloch was originally a Civil Judge of First Class, but by a notification issued by the Provincial Govern ment on the 27th of July 1972 he was promoted to officiate as Additional District Judge, and appointed as Chairman of the Labour Court. The objection to his appointment is that he had not worked as an Additional District Judge before assuming charge as a Presiding Officer of the Labour Court. We consider that the objection was rightly rejected by the High Court, as subsection (3) of section 35 of the Ordinance does not stipulate that the person concerned should have worked as District Judge or Additional District Judge for any length of time. The only requirement contemplated by this provision of law is that the person is a District Judge or an Additional District Judge at the time of his appointment. Mr. Baloch having been promoted to officiate as an Additional District Judge fulfilled this qualification, and could, therefore, legally be appointed to preside over the Labour Court, even by the same notification. The second point urged on behalf of the petitioner was not taken before the High Court, and on that short ground alone it could be disallowed in the present proceedings. Even otherwise, it has no substance. Standing Order 11‑A lays down that:‑ "Notwithstanding anything contained in Standing Order 11, no employer shall 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, epedemics or civil commotion." It will be seen that the Standing Order does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process. All that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this behalf. Thus the Labour Court's permission might indeed be the last step in the process of closing down, or an application in this behalf may be made by the employer simultaneously with any other step oat he may have to take to wind up his business and close down his establishment. The Standing Order does not appear to us to spell out any sequence in which the various steps for closing down an establishment have to be taken by an employer, and, therefore, no question arises of the respondent having committed any illegality in this behalf. The petition is thus without merit and is hereby dismissed. Petition dismissed.