1. ' This appeal is directed against the order dated 30-12-1997 passed by Presiding Officer, 3rd Labour Court Balochistan Kalat/Mekran Division at Hub, whereby the application filed by the respondent under section 25-A of the I.R.O. Was allowed. The order dated 26-4-1997 passed by the appellant terminating the services of the respondent, was setaside and he was reinstated with all the back- benefits.
2. ' Briefly the facts of the case are that the respondent (hereinafter referred to as applicant/worker) submitted application against the appellant (hereinafter referred to as the employer) under section 25-A of the I.R.O. Contending that the applicant was appointed as helper since 10-8-1994.
3. He was an active trade union worker believing in peaceful healthy trade union activities. The employee was alleged to be involved in unfair labour practice. The CBA had already given a charter of demands which was under negotiation; meanwhile, the applicant came to know that the employer is going to terminate his services, whereupon he approached N.I.R.C. Order dated 29-4- 1997 was issued by N.I.R.C. Restraining the employer from terminating the services of the applicant, despite which his services were terminated vide order, dated 26-4-1997 without any justification.
4. The applicant served the employer with grievance notice dated 16-5-1997 which was not replied.
5. The applicant claimed that the factory is being run in profit and the business has been expanded by installation of another similar project as the products of the factory are in great demand, hence the retrenchment of the workers was stated to be against the law. Prayer for setting-aside the order dated 26-4-1997 and reinstatement of applicant was made.
6. ' The employer resisted the application, by denying the claim of applicant with regard to his being a hardworker. He was stated to be unwilling worker as during period of his service he remained absent for 590 1/2 days, which reflects upon his performance. The employer further submitted that the applicant who was a Joint Secretary of Mehnat Kash Union resigned from the said post on 21- 8-1996 which the Registrar of Trade Union Balochistan accepted on 17-10-1996. The employer contended that before issuance of order dated 29-4-1997 by N.I.R.C. The services of applicant were already terminated by retrenchment on 26-4-1997, in accordance with section 13 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on the basis of first come last go or last come first go, the application was prayed to be dismissed.
7. ' The learned Labour Court on filing of the reply by the employer called upon the parties to adduce their evidence. The applicant in support of averments made in his application submitted his affidavit. Similarly the employer filed a counter-affidavit of Abdul Mujeeb, Administrative Officer/authorized person. Both the parties were afforded opportunity to cross-examine the other.
8. The application was finally allowed vide order dated 30-12-1997 in the aforementioned terms. The employer preferred appeal challenging the acceptance of the application of the worker which was dismissed by Labour Appellate Tribunal vide judgment dated 2-5-2001. The appellant still being dissatisfied approached this Court by filing Constitutional Petition No,222 of 2001 which was allowed by means of judgment dated 20-12-2001 and the case was remanded to the Labour Appellate Tribunal for decision afresh in accordance with law. On receiving of the file the employer/appellant filed application for amendment/incorporation of additional grounds in memo. Of appeal and also for placing of documents on record and for leading of evidence. The said applications were disposed off by means of order dated 15-9-2002, whereby the appellant/employer was allowed to incorporate additional ground in the memo. Of appeal.
9. ' The appellant/employer thereafter filed amended memorandum of appeal incorporating additional grounds with regard to financial losses incurred by the Organization during year 1997 which were supported by filing of additional documents/annual reports.
10. ' Both the parties have been heard at length. The appellant filed written arguments also. The arguments so advanced by the appellant/employer are of two-fold. On one hand it was argued that the additional grounds agitated in the memo. Of appeal and the documents filed in support of the same are to be taken into consideration, as the appellant was allowed to amend the memo. Of appeal to incorporate the said grounds. At the same time it was argued that the appellant may be provided opportunity to lead additional evidence so as to prove the fact with regard to sustaining of financial losses by the establishment and for said purpose the matter may be remanded to the trial Court. The learned counsel in support of his plea relied on a judgment reported in PLD 1965 SC 690.
11. ' To the contrary the learned counsel for the appellant/worker submitted that though permission was granted for filing of amended memorandum of appeal but the same does not amount to acceptance of the grounds so incorporated or any documents filed in support of same, unless the same are proved as per law. The learned counsel further submitted that appellant has taken a plea which was neither raised before Labour Court nor before this Court and it was never the case of appellant that the services of appellant were terminated on ground of sustaining of loss by the establishment, the case of appellant was that the services of the workers were terminated on account of his willful absence from duty for 590 1/2 days. Hence the additional grounds can not be taken into consideration at this belated stage.
12. ' The submissions made by the learned counsel for the parties considered, records of the case perused. To start with, I refer to the termination order dated 26-4-1997 which reads as under:-- "Due to huge financial losses, lack of demand and lack of orders, the Management have decided to reorganize their operations and retrench workers surplus to our requirement.
13. ' Keeping in view the principle of last in first out, your services for the aforesaid reasons are hereby terminated with immediate affect on payment of one month salary in lieu of notice. You are directed to collect your dues on any working day."
14. ' The appellant/employer claimed that alongwith applicant services of ten other employees were also terminated who settled their dues. It was the applicant alone who did not accept the said order and approached Labour Court, although before doing so he approached N.I.R.C. On 29-4- 1997 and obtained stay order by misrepresentation and concealment of fact that his services were already terminated on 26-4-1997.
15. ' On the other hand, applicant claimed that his services were terminated on account of mala fide, as he was an active member of the Union, however, the said plea could not be supported as the applicant who was a Joint Secretary of Mehnat Kash Union himself resigned from said position on 21-8-1996 which was accepted by the Registrar of Trade Union Balochistan on 17-10-1996, therefore, when the applicant was removed from service he was not holding any position in the Labour Union.
16. In such view of the matter it was for the applicant to make out a case to show that his services were terminated for any other reason, but stated in the termination order referred to hereinabove.
17. This aspect of the case seems to have received no attention by the learned Labour Court.
18. ' Now averting to the written statement and documents retied by the appellant/employer during trial, reflect that the appellant though made an attempt to counter the allegations made by the applicant in his application under section 25-A of the.I.R.O. But other than producing of the order dated 26-4-1997 the appellant did not produce any evidence to support the ground of removal of the applicant as stated in the termination order. The trial Court refused to accept the said plea of termination of services of the applicant/worker. However the appellant on being confronted with the said lapse on his part approached the Labour Appellate Tribunal seeking amendment in the memorandum of appeal and filed certain documents is support of the same. The said plea of the applicant was allowed by learned Appellate Tribunal vide order dated 5-9-2002, whereby the appellant was allowed only to amend memo of appeal. In compliance thereof amended appeal has been filed wherein the grounds to justify the termination of the worker have been added. The grounds so agitated in the amended memorandum of appeal though find no trace in the written statement but the said grounds are somewhat supported by the termination order. Further the annual reports filed in support of the said grounds also state about sustaining of financial losses by the company. The applicant/worker to contest the claim of employer raised plea that the representative of the employer admitted that after termination of the services of the applicant the pay and allowances of certain classes of the employees of the establishment were raised which negates the plea of employer with regard to sustaining of losses.
19. ' The controversy between the parties requires detailed probe which in my view can only be done by providing an opportunity to both the parties to establish their respective pleas by adducing additional evidence, therefore, it would be appropriate to remand this case to learned Labour Court so as to allow both the parties fair opportunity to support their respective claims and the Labour Court also to re-examine the matter which as observed above did not receive attention on the controversial points. For such view I am supported by the judgment so relied by the learned counsel for the appellant in case Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690, wherein observation to the following effect was made:- "We find then that the learned Judges of the High Court were not justified in not allowing the points mentioned above to be raised. We have considered the question whether we should remand this case to the High Court for re-hearing after allowing the questions relating to minority of plaintiffs to be raised or whether we should remand the case to the trial Court. We have came to the conclusion that a remand to the High Court would only delay the proceedings because the plaintiffs are bound to raise in answer to the objection as to the minority of the plaintiffs one or both of the pleas mentioned above, that is, the plaintiffs were Benamidars and Khawaja Muhammad Khan was acting as agent of his brother in respect of his nephews. If the plaintiffs raise either of these pleas the High Court will have to remand the case to the trial Court for further evidence and fresh decision. We remand this case therefore to the trial Court with the direction that the defendants-appellants should be allowed to add to their written statement the pleas which we have permitted to be raised. In reply to these additional pleas Lhe plaintiffs will be allowed to take such pleas as they choose. Evidence will be led by the parties on the questions of fact which arise out of the additional pleas and the pleas taken in reply. The whole case is not being reopened. The trial Court will only determine the new pleas raised by the defendants- appellant though in the decision of the facts relating to these pleas it will not be bound by any previous finding it may have recorded on facts, This appeal is allowed and the case is remanded to the trial Court, Costs in this appeal will be costs in the course."
20. ' In view of the discussion, made hereinabove the orders dated 30-12-1997 is set aside and the case is remanded to the trial Court for its disposal afresh in the light of observations made hereinabove.
21. Appeal stands disposed off, with no orders as to costs. The record of the case alongwith copy of this order be transmitted to the Labour Court Balochistan at Hub.