1976 PLP 846 (PLC)

Hameed M. Siddiqui for Respondent No.

2. Date of hearing: 10th May 1976. Respondent No. 2 Muhammad Hussain Rangoonwala was employed with the petitioners since 1963. On 1-1-1972 he received a notice, from the advocate of the petitioners, intimating him that his services stood terminated with effect from 31st October 1971. It was also alleged that a loan of Rs.2000 had been advanced to him and that after adjustment of one month's salary balance of Rs. 1,650 was due against him, which he was called upon to pay. A grievance petition was allegedly made on 5-1-7-?. It was duly replied on 13-1-72 by the same advocate. Subsequently, respondent No. 2 under some amnesty granted by the provincial governor approached the Labour Officer to issue a direction to the petitioners to re-instate the respondent. On failure of the petitioners to accept the directions of the Labour Officer respondent No. 2 moved an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance). It was prayed that the respondent be re-instated with back benefits retrospectively. In the alternate it was requested that all his legal dues and benefits with retrospective effect, including salary, salary for the notice period, salary in lieu of leave not availed, bonus, gratuity and commission may be paid. This application was resisted by the petitioners on the ground that the bone crushing industry being run by the petitioners had been closed finally two years prior to the termination of services of the respondent No.

2. It was alleged that no duty was performed by the said respondent beyond 1-10-71. It was contended that the Labour Court had no jurisdiction. In any case maintainability of the application under section 34 of the Ordinance was also challenged. The learned Presiding Officer, Second Sind Labour Court, vide his award dated 16-4-74, granted the prayer made in the alternate. This the learned Presiding Officer did by holding that a notice sent by the lawyer of the employer was not a notice in terms of the law and, therefore, the services of the respondent did not stand terminated. The petitioners have challenged this award on the ground that the learned Presiding Officer having failed to determine the question of jurisdiction and the maintainability of the application before it, could not proceed to decide other issues involved in the dispute. The learned counsel for the petitioners contends that the Industrial Relations Ordinance did not apply to the facts of the present case and that it were the provisions of the West Pakistan Shops and Establishments Ordinance 1969, which were attracted in this case. In any case, it was contended, that an application under section 34 of the Industrial Relations Ordinance was not maintainable. Lastly, the contention raised is that the application if maintainable was barred by limitation. Mr. Hamid Siddiqui, the learned counsel for the respondent contends, that once the provisions of the West Pakistan Commercial and Industrial (Standing Orders) Ordinance, 1961 (briefly referred to as the Standing Orders Ordinance) apply to a certain concern they continue to apply no matter if the character of that concern undergoes such a change, that if such concern were to start with that character the Standing Orders Ordinance may not have applied. He further contends that the application under section 34 of the Ordinance was maintainable at the time it was filed and that a notice sent by an advocate, terminating the services of a workman is not a valid notice as contemplated by law. Section 34 of the Ordinance, at the time the present disputes arose between the parties, read as follows: "Any collective bargaining agent or any employer, or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement." The language used in this section excludes any determination of jurisdiction upon the rights of the parties by a Labour Court. This provision allows for the enforcement of pre-existing rights. It pre-supposes that the rights required to be thus enforced already stand determined. The section also makes it clear how these rights are determined, namely, by statutes or by an award or by a settlement. The termination of service does no: give rise to a right. No law provides that a termination of the service of a workman is illegal. On the other hand an employer is always given the right to terminate the services of his workman under certain conditions. Therefore, in every case of termination of service, if it is challenged, the question to be determined would be if such termination was in accordance with law or not. And the moment a question of such termination or adjudication arises, section 34 loses application. At the time the present dispute arose the procedure given for the redress of a grievance against termination of service was provided under Standing Order 18 of the Standing Orders Ordinance, 1968. But according to the provisions of section 1(4) (a) of this Ordinance it applied to Industrial shops and establishments having 50 or more workmen employed therein or commercial establishments having 20 or more workmen employed therein. It is the case of the petitioners throughout that the bone crushing plant owned by them had been closed some time in 1969. The respondent No. 2 in his cross-examination (Annexure F) admitted that half of the machinery of the plant had been removed to Afghanistan. It is the case of the petitioners that after the closure of the factory, respondent No. 2 was working only to wind up the accounts of the closed factory. It is further contended by the petitioners in their petition. which contention is duly supported by an affidavit, that on the date the services of respon dent No. 2 were terminated there were 6 to 8 persons employed in the office wherein he was working. This contention has not been controverted. In the absence of any counter-affidavit controverting this contention of the petitioners it would be proper that this contention is accepted as true. In that case, provisions of Standing Orders Ordinance would not be applicable to that concern. The argument that once the provisions of Standing Orders Ordinance apply they continue to apply for all times to come is patently erroneous. With the change in the character of an establishment the law applicable to such establishments would apply, and not the law which applied to it before the change took place. In the present case another important fact has come on record and that is that the bone crushing plant, for whose affairs the respondent No. 2 was working had been closed down. In view of this fact as well as the contention is without foundation. The only law applicable to the facts of the present case would be the West Pakistan Shops and Establishments Ordinance, 1969. This Ordinance in its section 12 makes provision for the appointment of an authority which could hear and decide all claims arising out of the delay in the payment or non-payment of wages of the employees. Section 19 of the West Pakistan Shops and Establishment Ordinance makes provision for the removal of permanent employees, either on one month's notice or by payment of wages for one month in lieu thereof. It shows that the right to terminate the services of an employee is always available to an employer under this Ordinance. Any dispute arising out of such termination can be heard only by the authority appointed under the Ordinance and not by the Labour Court. It is not shown if respondent Presiding Officer was ever notified as such authority. As such any proceedings taken before the Labour Court are without any jurisdiction. In this view of the matter hold that the award given by the Labour Court is not substainable under law, having been passed beyond jurisdiction. The award is, therefore, set aside. As the petition succeeds on the question of jurisdiction I need not deal with other points raised at the bar. The parties are left to bear their own costs. Petition accepted.