DECISION This is an appeal against the order of the Labour Court whereby the dismissal order of the respondent was set aside and all back benefits and other legal dues up-to-date were ordered on an application made under section 25-A, industrial Relations Ordinance, whereas the re- instatement could not be ordered as it had become infractions on account of the closure of the mill.
2. The respondent was in the permanent employment of the appellant. The employees of the mill intended to form a Union. When this came to notice of the respondent, an application under Standing Order No. 11(A) of Standing Orders Ordinance was made to the Labour Court for seeking per--mission to close down the mill. The application was resisted by the employees. The Union had been formed and the respondent was elected as its President. The respondent did not care for the threats which had been issued to him by the Management. So, in order to take the revenge, the service of the respondent was terminated on 3rd July, 1976, without any show-cause notice or domestic inquiry, in violation of the mandatory provisions of the Sanding Orders Ordinance. The respondent after serving the grievance notice approached the Labour Court.
3. The appellant resisted the application and pleaded that Standing Order No. 12 (5) of the Standing Orders Ordinance was not applicable, and therefore, no show-cause notice or inquiry was necessary before terminating the service of the respondent but the respondent was entitled to one month's pay in lieu of the notice. It was also pleaded that the mill did not employ 20 or more workers at any time and, therefore, the Standing Orders Ordinance was not applicable.
4. Evidence was tendered by both the parties. On the assessment of the evidence the learned Presiding Officer entertained the view that the appellant had failed to prove that they had employed less than 20 workers in the mill and, therefore, the contention raised on behalf of the respondent that more than 20 workers were employed was acceptable, and, therefore, the Standing Orders Ordinance was applicable. On the basis of this finding, he entertained the view that since no notice or any inquiry was held, the termi--nation of the service of the respondent was in violation of the Standing Orders Ordinance and, therefore, illegal. He, therefore, set aside the order of dismissal and allowed the back benefits. But the re-instatement could not be ordered on account of the closure of the mill.
5. On persual of the record and proceedings and hearing the arguments I am of the view that the learned Presiding Officer erred in holding that since more than 20 workers were employed in the mill the provisions of Standing Orders Ordinance were applicable. It seems clear that he completely ignored the second proviso to section 4 of the Standing Orders Ordinance. The proviso clearly excludes the application of Standing Order No. 15 which requires notice and inquiry before terminating the service of the employee, unless more than 49 persons were employed on any day during the preceding 12 months in the absence of a notification by the Government, extending the application of the Ordinance to an 'industrial establishment. Admittedly, the establishment of the appellant is an industrial establishment and no such notification was issued by the Government.
Consequently, Standing Order No. 15 is not applicable.
6. In order to meet this situation, the learned representative for the respondent relied upon an unreported decision of the High Court of Sind & Baluchistan in Constitution Petition No. 1195 of 1974, in the case of Messrs Shafkat Silk Factory v. The Presiding Officer, Labour Court and others, in which it was held that despite the proviso, the Standing Order No. 15 was applicable in view of the provisions of clause 5 of Standing Order No. 12, which was not excluded by the proviso. It may be noted here that the same learned Judge in a previous case, Re: Messrs N. V. Silk industries v. The Presiding Officer, Labour Court in Constitutional Petition No. 60 of 1975, enter--tained a counter view and held that in view of the proviso the clause 5 of Standing Order No. 12 did not attract the application of Standing Order No. 15. On the other hand, the learned representative for the appellant referred to the case of Abdul Hal v. S. N. M. Industries, Karachi and another (1976PLC 72), decided by another Judge of the Sind High Court, and it was held that in view of the proviso, Standing Order No. 15 was not applicable to an organization were 49 or less persons were employed and no inquiry was necessary before termination of the service, but the employee was entitled to one month's notice or pay in lieu thereof under Standing Order No. 12. The contention that in view of clause 5 to Standing Order No. 12 the provisions of Standing Order No. 15 could be invoked was rejected. With due respect, I am in complete agreement with this view and hold that Standing Order No. 15 is not applicable and no inquiry was necessary before the termination of the service. At the most, the respondent was entitled to one month's pay in lieu of the notice. In this connection I have given detailed reasons in Appeals Nos. KAR-125 to 127 of 1976.
7. In result I allow the appeal and set aside the order passed by the Labour Court with the direction that one month's pay be given to the respondent.