' AKHTAR ZAMAN MALGH'ANI, J.---The following reliefs have been claimed in the instant Constitution petition:--
(a) That the judgment dated 6th December, 2001 passed by the Labour Appellate Tribunal is illegal, void, in .Excess of authority and of no legal effect.
(b) That the condition attached by the Labour Court is illegal, void in excess of authority and of no, legal effect.
(c) That pending disposal of the petition, the operation of the condition attached with order-dated 30-4-2001, may kindly be suspended.
(d) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded.
2. Briefly stated, facts relevant for the disposal of petition are thatthe petitioner was a private limited company carrying on business in the name and style of International Biscuits Limited, having factory at H.I.T.E. Hub, Lasbela wherein 64 workers were employed by the petitioner. On or about 29-5-2000 the petitioner moved an application within the meaning of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968'
(here-in-after referred to as S.O. Ordinance, 1968), seeking permission for closure of establishment.
It was contended in the application that due to adverse market conditions, continuous market recession, financial crises and lack of demand of the finished goods in the market as well as for the reason .Of financial constrain the factory remained out of production for the last one and half year and the workers were being paid wages without any work, as such, seeking no chance ofimprovements, the workers were offered golden hand shake formula on 5-4-2000, in consultation with CBA Union. Out of 64 workers, 34 workers including President and General Secretary of. Union accepted the offer and collected their dues by rendering resignation on or about 15-4-2000. However, remaining 30 workers remained on pay-role without any work.
According to petitioner, the management having no alternative but to lay-off the 30 workers for 14 days as they had no work to offer. After 14 days lay-off the management issued termination letters to the workers. It is further ,case of the petitioner that as their was no' industrial activities in the factory and situation remained same, as such; they filed application under Standing Order -11-A for closure of the establishment before the respondent No,2 which after entertaining the same invited objections by making publication in' the local news papers, in response whereof respondent No,3, General Secretary of the union filed. An application under Order-I nile 10 C.P.C. For-joining them as party. Then terminated workers also filed similar application.
3. The respondent No,2 after taking into consideration the facts and circumstances of the case, allowed the application of the petitioner on 304-2001, and granted permission for closure of establishment with effect from 30-4-2001, subject to payment of legal dues to 30 terminated workers. However, the applications filed by General Secretary and 10 terminated workers for impleading them as party was simultaneously rejected by the same order.
4. The petitioner feeling aggrieved by, the condition imposed in the order,, invoked the revisional jurisdiction of Labour Appellate Tribunal under section 38(3-a)' of the Industrial Relations Ordinance, 1969. The respondent No,3 also filed revision petition challenging the Order of Labour Court whereby permission was accorded for closure of the establishment.
5. It appears from the record that later on respondent No,3 withdrew his revision petition' and objected on the maintainability of revision filed by the petitioner. The learned Appellate Labour Tribunal accepted the, objection and dismissed the revision petition being tot maintainable vide its order dated 6-12-2001.
6. We have heard the learned counsel appearing on behalf of the petitioner and respondent No,3.
7. The learned counsel for the petitioner advanced following contention:-
(i) The learned Appellate Tribunal has jurisdiction under section 38(3-a) of the I.R.O. 1969 to entertain the revision petition andby not entertaining the petition the learned Tribunal has acted illegally.
(ii) Even if it is presumed that the Appellate Tribunal was not competent to entertain the revision petition, the order of .The Labour Court to the extent of imposing condition for payment of dues to the worker was without jurisdiction and liable to be declared so by this Court. Further elaborating his arguments, the learned counsel contended that under Standing Order Al-A the Labour Court has to see as to whether circumstances existed for according permission to close down the establishment or not? No condition. Can. Be imposed by the Labour Court while according permission for closure under the said. Standing Order. If worker had any, grievance regarding payment of his dues, he can approach the Labour Court by filing. Grievance petition under section 25-A of the I.R.O. 1961 or by approaching the Labour Court under Standing Order 12 (3) of the S.O.
Ordinance 1968.
8. In support of his contentions the learned counsel relied upon the case-law reported' in (1986 SCMR 107), (1994 PLC 202), (1996 PLC 300), (2001 PLC 124), (2001 PLC 312), (1993 PLC 308) and (2001 PLC 73).
9. The learned counsel for the respondent controverting the contentions of the learned counsel for the petitioner urged as under:--
(i) The present petition is not maintainable, as the petitioner has already sold out the factory, which at present in being run by new management, as such; he cannot be termed as an aggrieved person within the meaning of Article-199 of the Constitution of Pakistan.
(ii) The conditions imposed by the Labour Court was in accordance with law- as according to scheme of Standing Orders, 1968 after obtaining the permission the establishment has to close down the factory and issue termination letter under Standing Order 12(3) and thereafter to pay the dues on the next day within the meaning of Standing Order 12(4).
(iii) Despite stay granted by the Learned Member, N.I.R.C. Karachi Bench for not removing the workers on 10-4-2000, the management terminated the services of 30 workers, on . 20-5-2000, in violation of the above said order, as such, same has no legal sanctity and the Labour Court was competent toaward dues to the workers by holding the termination as illegal .
(iv) Admittedly an industrial dispute was pending before the area Councilor, raised by CBA Union under section 26(3) read with 28 of the I.R.O., 1969, as such; the petitioner was required to obtain permission from the area Councilor before closing down the factory and removing the workers which was not done, thereby violated the provision of section 47 of I.R.O., 1969 and Standing Order- 11-A of the S.O. Ordinance, 1968..
(v) The order of the Labour Court is just and fair, securing the interest of the workers, as such; is not liable to be interfered by this Court while exercising discretionary jurisdiction under Article 199.
Learned Counsel relied upon the case laws reported in 1992 PLC 136;' 1998- PLC 490; 1992 PLC 75 (Kar); 1987 PLC 715; NLR 2001 (Lab) 177; 1975 SCM R 49; 1991 PLC (Lab) 305; 1992 PLC 75; PLD1967 SC 367/372; PLD 1971 SC .61; 2001 PLC 672; 1974 PLD SC 149; 1963 PLD SC-236; 1985 PLD Quetta 74; 1987 PLC 692 (Kar); 1992 SCM R 1290; PLD 1971 SC 370/376; YLR 2000 (Lah) 632; 2001 PLC. 680; 2002 PLC 67; NLR 2001 (Lab)-101; PLC 1999-635; 2001 PLC 39; 2002 PLC 201 and 2001 PLC 13.
10. We have anxiously considered the respective contentions put forth by the learned counsel for the parties in the light of material available on record and the impugned orders passed by the respondents Nos.1 & 2.
11. At the very out set we may mention that the learned counsel for the respondents has also objected On the order of the Labour Court whereby permission for closing down the factory was accorded on various legal grounds but we feel that such objections at this stage are not tenable nor the same can be considered because the respondent No,3 or for that matter any other worker has not challenged the order according permission for closure of establishment before any competent forum, or by filing any petition before this Court. The revision petition filed by respondent No,3 against the order of Labour Court was withdrawn by him, as such; he cannot be allowed to challenge the order of Labour Court whereby permission was accorded by closing down the establishment in the Constitutional petition filed by the petitioner who is aggrieved by the condition imposed in the order for payment of wages-and has challenged the order of., Labour Court to such extent only
12. Coming to first contention of the learned counsel for petitionerthat the revision petition within the meaning of section 38 (3-a) of I.R.O. 1969 was competent. We have gone through the order passed by the learned Appellant Tribunal. The learned Tribunal after discussing the case-law available on the point has come to the conclusion that the revision petition was not competent against an order passed under the C Standing Orders Ordinance, 1968 and we find no illegality or infirmity in the conclusion drawn by the learned Appellate Tribunal which has been arrived at after taking into consideration the relevant provisions of law and the case-law on the point. So for the case-law relied upon by the learned counsel in this behalf is concerned, same are distinguishable on facts. In the judgment reported in (1986 SCM R 1071), the Hon'ble Supreme Court held that the SuoMoto revisional power available to Labour Appellate Court under section 38(3-a) of the I.R.O.
1969 can be exercised by the Tribunal on an application of a party to the proceedings before, subordinate forum, while question involved in the present petition is whether the Appellate Tribunal has jurisdiction to exercise revisional jurisdiction in case decided under Standing Orders Ordinance, 1968. Moreover; in the above quoted judgment it was also held that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted clearly without jurisdiction if the impugned order is passed in order to "foster the cause of justice".
Similarly in the case reported in (1994 PLC 202) the Hon'ble Judge of the Lahore High Court came to the conclusion that the appeal was competent before the Labour Court against any order passed by the Commissioner, Workmen's Compensation Authority under the Payment of Wages Act, 1936 by virtue of section 17 of the Payment of Wages Act, 1936, as such; the Appellate Tribunal has also jurisdiction to hear revision petition against the order of Labour Court. In the present case no appeal is provided by the Standing Orders Ordinance 1968 against the order 'of Labour Court passed under Standing Order 11-A, as such; the case-law referred above is distinguishable.
13. Adverting to the next contention of the learned counsel that the Labour Court has no jurisdiction to impose any condition while according permission for closure under Standing Order 11-A, it may be noticed that the Labour laws have been promulgated in the country to protect the rights and privileges of workmen and are to be construed liberally in favour of workers. Under the scheme of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 an D employer is debarred to terminate the services of more than 50% or close down the .Whole of the establishment without prior permission of the Labour Court and for closing down the establishment procedure has been provided tinder Standing Order 11-A, therefore, the termination of 100% workmen i.e, 30 workers prior to the permission by the Labour Court ,was illegal and without any effect and such workers would be deemed tobe in employment of the establishment notwithstanding any order of termination issued by the management in violation of the above referred Standing Orders. Moreover; it has also come on record that prior to the termination of the workers the member, N.I.R.C. Karachi issued an injunction restraining the management from removing the workers, on 10-4-2000, as such any order of termination of workmen in violation of the injunction issued by a competent forum has no legal sanctity. Similarly under Standing Order 12(4) the employer is under legal obligation to pay the dues of workers on the next of the termination who have been terminated. None of the above mentioned Standing Orders could be read in isolation. Standing Order 11-A was introduced by the amending Act XXIII of 1973 and is intended to curb ill-motivated termination of employees or arbitrary closure of establishment by the management, therefore, we find no force in the arguments of the learned counsel that the Labour Court while according permission for closure of establishment cannot impose any condition on the management. As already observed, the intention of introducing Standing Order 11- A in the Labour Laws is to curb ill-motivated termination of workers, therefore, the application for closure of establishment within the meaning of Standing Order 11-A is not a mere formality but the Labour Court before making any decision upon such application has to see as to whether the circumstances of the case \ permits for closure of ' establishments within the meaning' of Standing Order 11-A and also to satisfy itself as to whether the workmen got what they were entitled to under the law in shape of wage and benefits. Mere we may refer to the judgment reported in 1998 PLC
490. The relevant observations are reproduced below:- "Standing Order 11-A was, introduced by the amending Act XXIII of 1973 and it was intended to curb ill-motivated closure of establishment or termination of employment. It, therefore, envisages that an employer who desires to terminate more than 50 per cent of the workmen or its closure down whole of the establishment, must obtain prior permission of the Labour Court. A corresponding amendment was also made in the Industrial Relations Ordinance, 1969 through Act XVI of 1975 whereby, clause (i) was added to subsection (1) of section 15, whereby closure of the establishment and termination of employment being in violation of Standing Order 11-A is made punishable as unfair labour practice. This makes it absolutely clear that the application of the provisions contained in Standing Order 11-A must be meaningful and not mere formality. In Tatanagar Foundry Co. Ltd. v. Their Workmen (supra) it was held that, "The closure has to be genuine and bona fide in the sense that it should be a closure in fact and not a mere pretenceof closure". Similarly in Banaras ' Ice Factory Ltd. v. Its Workmen (supra) it was held that "if there is no real closure but a mere pretence of a closure or it is mala fide, there is no closure in the eye of law...." The Labour Court has; therefore, to be satisfied that such a move on the part of the employer is genuine and not mala fide with the object of getting rid of the workmen. In the event of contest to an application under Standing Order 11-A by the workmen or their Union, the Court, is obliged to examine all relevant facts to ascertain that there are real circumstances justifying the closure or termination of employment. The Court has also to see that the workmen also get what they are entitled to under the law in the shape of their wages and benefits."
14. So for the objection of the learned counsel for the respondent regarding maintainability of the present petition on the ground that the petitioner have a already sold away the factory and same is being run be new management, as such; the petitioner is not an aggrieved person within the meaning of Article 199, is concerned, it is suffice to observe that, the order of Labour Court directing the payment of dues and wages to the workmen was passed against the petitioner, therefore, it is an aggrieved party within the meaning of Article 199 of the Constitution and present petition on its behalf is maintainable.
15. However, we agree with the contentions of the learned counsel that while exercising Constitutional jurisdiction, which is discretionary in its nature and object, is to foster justice and right a wrong, it can be invoked only in aid of justice and. Not be perpetuate injustice. In the present case the petitioner illegally terminated the workers in violation of law and injunction granted by competent font& as such; the Labour Court after holding the action on the part of the petitioner illegal, directed it to pay the outstanding dues and wages to the workmen which even otherwise it was bound to pay under Standing Order 12(4) of the Ordinance, 1968, therefore, the order impugned in the petition having been passed to foster the justice is not-liable to be interfered in exercise of discretionary jurisdiction under Article 199 of the Constitution of Pakistan, even it is assumed that the Labour. Court has no jurisdiction to pass such order.
' For the fore-going reasons we find no merits in the present petition and same is dismissed accordingly.
' Parties are, however; left to bear their own costs.