1976 PLP 1 (PLC)

The petitioner is a limited company registered 3 under the Companies Act, 1913. The respondents Nos. 3 to 7 were employed with the petitioner in the capacity of Welder, Turner and Blacksmith. On 3rd August 1974, the Company retrenched the respondents Nos. 3 to 7 and 6 other workers on the ground that the Lathe Machine on which these workers were working had gone out of order and its spare parts could not be replaced as the same were not available in Pakistan. According to the petitioner no sufficient work was available for the retrenched workers and therefore on the bass of last come first go the eleven workers were removed from services. Four out of eleven retrenched workers received their retrenchment benefits, and left the job without any protest while respondent Nos. 3 to 7 Yousaf Msih and Mohammad Javed Abbasi agitated the matter of their retrenchment, S before the Junior Labour Court rule application dated 6th August 1974. The Junior Labour Court decided on 14th September 1974 that retrenchment was in contravention of section 23(B)(6) of Industrial Relations Ordinance, 1969; an appeal was filed against this order which was dismissed on 16th December 1974. Hence this petition, assailing the orders of Junior Labour court and Labour Court dated 14th September 1974 and 16th December 1974 respectively.

2. Before proceeding further it may be mentioned here that during the pendency of the litigation with the petitioner Mohammad Javed Abbasi and Yousuf Masih collected their dues and left their jobs. Therefore, they have not been made parties to the present petition. The only contestants who remained in the field are respondents Nos. 3 to 7.

3. The learned counsel for the petitioner has contended that section 23(B)(6) of Industrial Relations Ordinance, 1969 did not apply to this case and the Junior Labour Court and Labour Court have wrongly held that section 23(B)(6) created a bar in the way of retrenchment without consultation with the representatives of the workers. Section 23(B)t6) of Industrial Relations Ordinance, 1969 is reproduced below:- Section 230)(6).

The management shall not take any decision in the following matters without the advice in writing of the workers' repre sentatives, namely:- (i) framing of service rules and policy about promotion and discipline of workers; (ii) changing physical working conditions in the factory; (iii) in-service training of workers; and (iv) recreation and welfare of workers. The matters in which the representatives of the workers are required to be taken into confidence by the Management have been enumerated in this section and it does not indicate any where that in cases of retrenchment of the workers the representatives of the workers shall be taken into confidence. The Junior Labour Court therefore wrongly held that it was a case of non -observance of the provisions of section 23(B) which rendered the order of retrenchment invalid. In fact section 23(B) provides for the workers' participation in the Management and the scope of this participation has been laid down in various subsections of this section. Subsection (6) only mentions those instances in which the representatives of the workers shall be consulted and their written advice shall be obtained and taken into considera tion. This section does not cover such eventualities as retrenchment and therefore the Management is at liberty to retrench any worker provided it observes the rules laid down in Standing Order 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. All what is required by section 13 is that the last persons employed in a particular category of employees shall be retrenched first There is no evidence to show that this rule was not observed by the petitioner. The finding of both the Junior Labour Court as well as Labour Court on this point is against law.

4. The Labour Court also grossly acted against the record in holding that since the workshop in which the respondents Nos. 3 to 7 used to work was still operating in full swing, therefore, there was no justification for the retrenchment of respondents Nos. 3 to

7. The learned Labour Court has inadver tently omitted to realise that it was not a case of lock-out and the petitioner did root assert that they had retrenched the workers because they had closed down their workshop. The reason set out by the petitioner for the retrench ment of eleven workers is that the Lathe Machine had gone out of order and it could not be got repaired by the petitioner therefore the persons working on the machine or directly connected with it in any manner had become surplus. The Labour Court has therefore wrongly held that the retrenchment of the respondents Nos. 3 to 7 was not justified.

5. All what the learned counsel for the respondents Nos. 3 to 7 has urged is that there was a concurrent finding of the Junior Labour Court and Labour Court against the petitioner and it would not be justified in exercise of powers in writ jurisdiction to disturb this finding. I am unable to agree with this contention because in a case of misreading of evidence or in a case in which a Court has acted against the record the High Court can always interfere with the orders of the inferior tribunal in exercise of its writ a jurisdiction. In this case both the lower Courts have not gone through the record correctly and by misinterpreting law and misreading of evidence they have given a finding fn favour of the respondents Nos. 3 to 7 which is patently erroneous and is therefore liable to be reversed.

6. In the result, for the foregoing reasons, I allow the petition and set aside the impugned orders but with no orders as to costs. Petition allowed.