1. This petition is directed against the order of the 2nd Sind Labour Court, Karachi, dated 4th July, 1974, whereby the petitioners were directed to pay the wages of the respondent for the period he remained unemployed. Briefly the facts are :---- The respondent was in the employment of the petitioners. According to the petitioners he remained absent from 17th December, 1972 to 21st February, 1974, during which period he was repeatedly asked in writing to come and report for duty but he failed. A domestic inquiry was instituted, but the respondent did not participate in that inquiry at any stage. Finally his services were terminated with effect from 21st February, 1974. There upon the respondent moved an application before the Junior Labour Court on 19-3-1974, challenging this dismissal as malicious and illegal. It was prayed that he be re-instated with full back benefits. Reply statement was tiled by the petitioners on 27th March, 1974 in which the petitioners took the stand as detailed above. The parties were cross-examined on the affidavits filed by them and during the course of cross- examination the petitioners offered to take the respondent back in service but refused to pay back the benefits. The learned Presiding Officer of the Junior Labour Court ordered accordingly, but at the same time found it for a fact that the respondent not having joined the duties without any reason and having failed to prove that he had offered himself for the job, held that he was not entitled to back wages.
2. The respondent felt aggrieved against this order and appealed before the 2nd Labour Court at Karachi. The learned Presiding Officer of the Labour Court found, firstly that no second show-cause notice had been issued to the respondent and, therefore, the mandatory provisions of law had been violated ; secondly, that the stand taken by the petitioner/employer were contradictory inasmuch as at one stage it was alleged that the respondent was dismissed after holding domestic enquiry and at others that the respondent was attending to his duties. It was, therefore, found that the statement that he had offered himself for duty, was worthy of credit. The result was that while relying upon 1972 L L C 417 and 1972 L L C 146 the respondent was found entitled to get back wages. Such order was passed accordingly. The present petition challenges these directions of the 2nd Labour Court.
3. The first contention raised by the learned counsel for the petitioner is that the petitioner's factory employs less than 49 workers and, therefore, the provisions of section 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance) do not apply. In this connection he has relied upon the admission of the respondent, in cross-examination, before the Junior Labour Court. Annexure C is the copy of such cross- examination wherein he stated that "there are 35/40 workers in the respondent's factory".
4. Additionally the petitioner says that such stand was taken both before the Junior Labour Court as well as 2nd Labour Court. In para. 3 of the reply statement following contentions had been raised:-- -- "That para. 3 of the application is also incorrect. Certain provisions of the West Pakistan Industrial and Commercial Employment (S. O.) Ordinance, 1968, are not applicable to respondent's factory as the number of workers employed in less than 49."
5. Similarly in para. 6 of the affidavit filed before the Labour Court it is contended that certain provisions of the Ordinance, are not applicable to the petitioner's factory. In this context the learned counsel further contends that the respondent has not cared to file any counter-affidavit to the assertions made in the constitutional petition before this Court and, therefore, not having controverted the assertions contained therein such assertion should be deemed to be correct. The averments made in the petition, which are duly supported by sworn affidavit, have to be denied, if they are challenged, through sworn counter-affidavit. In the absence of such counter-affidavit the allegations contained in the petitioner's affidavit shall have to be accepted as true. In this view of the matter the fact that the petitioner's factory employs less than 50 workers, not having been controverted, would be deemed to be correct. This contention is further strenghtened by the statement of the respondent himself in cross-examination referred to above. Under these circumstances the provisions of section 15 of the Ordinance, would not apply and, therefore, it was not necessary for the employer to follow the procedure laid therein. On the other hand the provisions of Standing Order 12(3) would be attracted.
6. The learned counsel for the respondent, on the other hand, contends that the provisions of section 15 are fully attracted to the circumstances of the present case because the second proviso to subsection (4) of section 1 of the Ordinance speaks of non-application of clauses (6) and (8) of the Standing Order No. 12. According to the learned counsel this would mean that clause (5) of the Standing Order 12 would continue to apply to the proceedings in the present case. This clause reads as follows :--- "The services of a permanent or temporary workman shall not be determined on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15."
7. The learned counsel contends that this clause should be construed as an exception to the principles of second proviso to subsection (4) of section 1 of the Ordinance. In this connection he also relies upon Avalene Silk Mills v. Mumtaz Ahmed (1974PLCNote30atp. 18).
8. This case is distinguishable inasmuch as it lays down that all industrial establishments employing more than 20 persons are governed by the provisions of the Ordinance. This case has not taken into consideration the provisions of second proviso to subsection (4) of section 1, or those of clause
(1) of the Standing Order 12.
9. It has to be seen as to what is the effect of second proviso to sub--section (4) of section 1, which clearly states that the provisions of Standing Order 15 shall not apply to a factory employing 49 or less workers, while on the other hand, clause 5 of the Standing Order 12 unambiguously states that no termination of permanent or temporary workmen shall be affected on the ground of misconduct other than in the manner prescribed in Standing order 15. The learned counsel contends that there is ambiguity involved in the matter and, therefore, in view of the ruling contained in Rehmat Ali v. Banaras Silk Industries (PLD 1967 Dacca 113) the ambiguity should be resolved in favour of the workmen. Here there is no ambiguity involved in the two provisions. At best it could be argued, without conceding, that there are two provisions providing for two different procedures. The question would be which of them is attracted to the facts of the present case. At this stage it would be essential to examine the history of the amendment by which second proviso to subsection (4) of section I of the Ordinance was brought in.
10. Prior to the addition of second proviso to section 1(4) of the Ordinance there were two clauses to subsection (4) to section 1. These clauses read as follows; "(4) It applies to-----
(a) every industrial establishment wherein fifty or more workers are employed, or were employed on any day during the preceding twelve months ; and
(b) every commercial establishment wherein twenty or more workers are employed, or were employed on any day during the preceding twelve months ; and This provision indicated that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, applied to those industrial establishments where 50 or more persons were employed. By Ordinance XXIII of 1973, both the industrial and Commercial establishments were brought at par in this connection when clauses (a) and (b) of subsection (4) were replaced by the following single clause; "(a) every industrial establishment or commercial establishment wherein twenty or more workers are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months ; and"
11. By the same Amendment Act second proviso to subsection (4) of section 1 was added. It would also facilitate matters if this second proviso is reproduced here; "Provided further that the provisions of Standing Orders 10-B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply, in the first instance, to any industrial establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months but Government may, by notification in the official Gazette, extend all or any of the said provisions to any such industrial establishment or any class of such establishment."
12. It is clear from this proviso that among others, the provisions of Standing Order 15, are not applicable to establishments with 49 or less workers unless notified by Government. It is to be noted that this provision occurs in section 1 of the Ordinance which deals with the matter of its application. In other words the extent of application of the Ordinance, or any of it provisions is to be ascertained from the provisions of this section. Any other provision, in this regard, made elsewhere in the Ordinance has to be read subject to these provisions. In other words the provisions of section 1 shall govern other provisions in the Ordinance as regards the application of the Ordinance, and such other provision will have to be construed subject to the provision of this section. Viewed in this context, it can be safely stated that when Standing Order 12(5) puts a bar on termination of any worker for misconduct except in the manner prescribed in Standing Order 15, it will be operative in the case of those establishments only where Standing Order 15 does not apply. In the case of establishments where Standing Order 15 does not apply at all it cannot be expected that the procedure laid down therein shall have to be followed. This interpretation is in harmony with the avowed objects of the Ordinance which aims at not burdening smaller establishments with long and cumbersome procedure. In cases where the number of workmen employed is between nineteen and fifty, it would be due compliance of law if the provisions of Standing Order 12(3) are followed.
13. The second ground prevailing with the learned Presiding Officer of the 2nd Sind Labour Court is that the petitioner/employer had taken contradic--tory, stands with respect to the circumstance leading to the dismissal of the respondent. In this connection the learned counsel for the petitioner has invited my attention to the averments made by the petitioner in para. 2 of the reply statement filed before the Junior Labour Court and para. 5 of the affidavit filed before the 2nd Sind Labour Court and has contended that the impugned order suffers from misreading of evidence to that extent. In this connection it would be worthwhile to refer to the averments made by the petitioner in the two affidavits. In the affidavit filed before the Junior Labour Court it is stated; "That para. 2 of the applicant is not correct hence denied. The applicant's service had not been terminated but on the contrary he was dismissed from service. In this connection it may be mentioned here that the applicant was absent from duty since 17th day of December, 1973, and in this regard so many letters were issued to him to report for duty but he failed to do so. He was charge-sheeted on this account and domestic enquiry was arranged in the matter but on each occasion the applicant failed to participate on one plea or the other. At last the applicant was dismissed from service vide dismissal letter dated 21-2-1974. "
14. In the affidavit before the Labour Court the petitioners have stated; "5. That the applicant absented from duty w.e.f. l7th day of December, 1973. He was charge-sheeted for this act of misconduct. In spite of requests he did not report for duty and also failed to participate in the domestic enquiry on one plea or the other. Hence the applicant was dismissed from service vide letter dated 21-2-1974."
15. The stand taken before both the Courts is quite consistent and there is no contradiction involved.
16. These assertions which are not controverted by way of a counter-affidavit, highlight two facts ; firstly the fact of continued absence of the respondent, in spite of repeated efforts of the petitioner.
17. Secondly the holding of an inquiry in spite of the absence of the respondent. The two facts are not contradictory to each other. On the other hand they show that notwithstanding the absence of respondent, in spite of notices, the employer refrained from taking decision about his termination.
18. He thought it fit to hold an inquiry and then decided to terminate his services.
19. The learned counsel for the respondent however, doubts the propriety of invoking the extraordinary jurisdiction of this Court which, according to the learned counsel, involves detailed inquiry into facts. In this regard e he relies upon the case of Tanbir Ahmed Siddiki (PLD 1968 SC 185). The learned counsel has particularly referred me to the observations made by their Lordships of the Supreme Court which are to the following elect; "It appears to me that disputed questions of fact and law, requiring investigation, arise for consideration in this case which would therefore, not be a suitable subject for adjudication under Article 98 of the Constitution."
20. But this principle of law is not applicable to the facts of the present case. I-sere it is not a question of holding an inquiry into the facts of the matter. Here the question is of misreading of facts by the Tribunal below, which facts are patently established on record and are not disputed. The respondent has not doubted the genuineness of the contents of the written statement before the Tribunal, and the affidavit filed by the petitioner in this Court. So the facts, which are not controverted stand established. In these circum--stances the authority quoted would not be attracted to the present case.
21. In view of the above discussion I hold that the order of the second Lahour Court is without lawful authority and of no legal effect. This order therefore, set aside. The result is that the order of the Junior Labour Court would stand in the field according to which the petitioner shall take Co him (respondent) back into service. But the respondent shall not be entitled to back benefits. There would, however, be no orders as to costs.