1995 PLP 107 (PLC)

4. The Labour Court for the reasons given by it found all the material issues in favour of the petitioners and found that they had the right of re?employment. The relevant portion of the order reads as follows:‑ "Thus the applicants are given unconditional right of their re?employment and they are ordered to be re‑employed from next crushing season. It is so ordered because the applicants have not worked after crushing season 1990‑91 and this crushing season is just at the verge of its closure and if they were adjusted only for a few days before the end of crushing season naturally such number of working workers who have been removed/refused duty. Applicants are therefore ordered to be re‑employed in the next crushing season 1994‑95 at their original numbers of employment in preference to their juniors. The question of back benefits is again hotly contested. Respondents have all along pleaded that applicants were refused duties because of their economic and administrative reasons and lack of work. Respondents stated in their written statement that these applicants were not taken on duty due to economic reasons, administrative re?organisation and management had decided to economize the working of the mills and minimise the losses. Respondent Advocate has argued that respondent Sugar Mills has gone under loss of crores of rupees and their mills was virtually closed for long time. He has further challenged the back benefits of applicants in view of 1991 SCMR 2087 and 2993‑404, that the applicants failed to claim their back benefits in their grievance notices, grievance petitions and affidavits in evidence, therefore, they are not entitled to the back benefits. Applicants has filed such additional affidavits in evidence for remaining jobless for the period of their severance but they did not claim back benefits in their grievance petitions and in their first affidavits in evidence. This additional affidavit in evidence of applicant is challenged by respondent as afterthought. However I am convinced that the applicants are not entitled to the back benefits as they have not worked in 2‑3 crushing seasons after 1991‑

92. Accounts of the Mills are closed and audited, it cannot be re‑opened. Further the back benefits cannot be awarded in sort of punishment to the respondent/employer. Other persons who worked at the place of applicants must have been paid and it will be punishment to the respondent if the applicants are allowed back benefits for the period they have not worked with respondent. Accordingly the applicants are not allowed back benefits but they are given unconditional right of re‑employment in the crushing season 1994‑

95. With these observations applicants cases are partly allowed for re?employment only."

5. As of late Mr. Fasahat Hussain Rizvi learned counsel for the petitioners was having indifferent health, I had heard Dr. Raees Mushtaq for the respondent and adjourned the matter to hear him. As Mr. Abdul Majeed a labour representative was present during the proceedings. I had asked him to assist the Tribunal as amicus curiae. There was also a direction that if Mr. Fasahat Hussain Rizvi in his present state of health was not advised. to travel, he might as well send a brief note of his address. That was not done.

6. Dr. Mushtaq very properly did not press the contention in regard to the bar of time, as admittedly there was no order of the petitioners' retrenchment in writing and the petitioners had reported for duty on the 18th of October, 1991 which was the opening day of the new season. All that was alleged by him was that the petitioners were just temporary seasonal workers and their services could be terminated any time, even verbally.

7. On the other hand, it was contended by Mr. Abdul Majeed, that looking to the protection provided in Standing Orders 13 and 14 of the Standing Orders Ordinance read with section 4 of the Factories Act, the alleged order of retrenchment was simply indefensible. Standing Order 14 reads as under:‑ "14.????? Re‑employment of retrenched workmen.‑‑‑Where any number of workmen are retrenched and the employer proposes to take into his employ any person within a period of one year from the date of such retrenchment, he shall give an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by registered post to their last known addresses to offer themselves for re?employment, and they shall have preference over other persons, each having priority according to the length of his service under the employer; Provided that in the case of seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934) a workman who was retrenched in one season and reports for duty within ten days of the resumption of work in the factory in the immediately following season shall be given preference for employment by the employer; Provided further that, in the case of such a seasonal factory, the employer may by sending notice by registered post to the last‑known address of a workman who was retrenched in one season require him to report on a day specified in the notice, not being earlier than ten days before resumption of work in such factory, and if such workman so reports he shall be given preference for employment and paid full wages from the day he reports."

8. The contention of Mr. Abdul Majeed finds support from two decisions of this Tribunal, namely Fauji Sugar Mills v. Ali Bux 1989 PLC 1013 and Dadu Sugar Mills v. Mumtaz Ali 1990 PLC 51.

9. Abdul Hayee Qureshi the witness of the respondents admitted in cross‑examination that the dates of appointments as mentioned by the petitioners were correctly described, and that there were no letters given to them informing them of their retrenchment. He further admitted that after their ouster, some workers had been engaged but on daily wages basis.

10. As the matter stood, the order of retrenchment was unlawful. Therefore the proper order to pass was their re‑employment from the 18th of October, 1991. The question of awarding back benefit was to be considered later on, in accordance with the principles laid down in Muhammad Bashir v. Punjab Labour Appellate Tribunal 1991 SCMR 2087.

11. It is beyond the pale of any controversy that the petitioners had nowhere mentioned in their grievance notices, petitions or affidavit in evidence that they were jobless during the crushing season. It was at a later stage that an application was made on behalf of the petitioners to be allowed to lead further evidence in that regard. The application though opposed was allowed and an additional affidavit in evidence was filed.

12. The respondent‑Mill, even as found by the Labour Court was floundering, fathoms deep under sea water. Dr. Mushtaq made a statement from the Bar that it has altogether ceased to operate. Be that as it may, in the circumstances of the case. I will be reluctant to allow any back benefits and it is wide of the mark.

13. In the result, the petitioners' appeals, with the modification in regard to the date of re‑employment stand dismissed. The respondents appeal also stands dismissed. Order accordingly. H.B.T./2377/Lb.S??????????????????????????????????????????????????????????????????? ??????????? Order accordingly.