' MUHAMMAD MOOSA K. LEGHARI, J---Since similar questions of facts and law are involved in these appeals, and arise out of a single order, those are being disposed of by one judgment.
2. These appeals are directed against the order dated 19-1-2005, passed by Labour Court No,VI Hyderabad, whereby the termination of the respondents/workers were declared unlawful, and their grievance petitions were allowed. They were directed to be reinstated in service with full back- benefits.
3. The facts forming the background of the litigation are that the respondents were permanent workmen employed by the appellants. It was the case of the respondents that the Mill Management was against the Trade Union activities and therefore, they continued to pressurize the workers by one or the other means to abandon participation in the Trade Union activities and for that reason many cases were filed against the workers. On 22nd April, 2002, a notice was published by the Management in the daily newspaper `KAWISH' Hyderabad, with regard to retrenchment of 170 workers including the respondents. The reasons assigned for the termination were that the factory was sustaining losses due to heavy staff, the shortage of sugarcane and low production. Accordingly the services of the respondents were terminated and they were allowed one month salary in lieu of notice. It was the case of the respondents/workers that the retrenchment was made in violation of law regulating the retrenchment, the juniors were retained while terminating services of the respondents, the Mill Management intended to introduce contract system by re-employing the workers on low wages in order to curtail the facilities and benefits. It was claimed that the action of the Mill Management was mala' fide and biased and in violation of law. The respondents/workers accordingly served grievance notices which were not responded.
Hence, the grievance petitions were filed.
4. Upon service the appellant Mill 'Management filed written statement and legal objections in each case whereby pleadings made by therespondents/workers were denied. It was asserted - that the services of the workers were terminated due to retrenchment on account of reorganization, reasons thereof were already mentioned in the notice published in the Newspaper.
It was pleaded that the action of the appellant Management was perfectly legal and proper. The maintainability of the petition was also challenged on the ground that the termination of the workers was not in consequence of the Industrial dispute and that they had already approached the NIRC for the same relief.
5. In order to substantiate the pleadings the respondents/workersfiled their affidavits in evidence in their respective cases. They were individually cross-examined on behalf of the appellant/ Management.
' However, no evidence was led on behalf of the appellant/Management except in the case of Naseer Ahmed (Grievance Petition No,177 of 2000). In the said case affidavit of witness namely Muhammad Yaseen Shahid was filed and he was cross-examined on behalf of the respondents/workers. In the remaining cases the appellant Mill Management failed to procure the attendance of the witness for the purpose of cross-examination, as such, their side was closed.
6. Vide impugned order dated 19-1-2005 the grievance petitions were allowed. Hence these appeals.
7. At the request of Learned Counsel for the appellants and with the consent of counsel for the respondent the appeals were heard and disposed of at KatchaPeshi.
8. On behalf of the appellant/Management following contentions were raised by Mr. Mehmood Abdul Ghani, Advocate:--
(a) That the order passed by the Labour Court was without application of mind as the name of witness who adduced evidence in the case of Naseer Ahmed was mentioned in the judgment as Nusrat Ali whereas the name of the witness examined in the case was Muhammad YasinShahid.
(b) That the case were proceeded individually, the evidence was produced separately in each case but the Grievance Petitions were disposed of by a single order whereby the appellants were prejudiced as the learned Judge did not apply his independent mind to the fact and circumstances of each case.
(c) That the appellant Mills were not given sufficient time to adduce evidence and their side was closed without any justifiable reason with the result that the appellants were seriously prejudiced.
(d) That the retrenchment on account of re-organization was vested right of Mill Management which could not be restricted, as the employer was the best Judge to run the affairs of the industry without any interference.
(e) That though proper and justifiable reasons substantiated by evidence were advanced before the Labour Court for retrenchment but those were not taken in to consideration.
(f) That the respondents/workers were estopped from filing the Grievance Petitions before the Labour Court as they themselves have chosen the forum of NIRC for agitating their grievances.
(g) That since the matters were subjudice before the NIRC the Labour Court has absolutely no jurisdiction in the matter.
(h) That there was sufficient evidence to show that the factory has sustained losses and as apparent from the statement of accounts for the relevant year and from the press cuttings annexed with the written statement, as such, the retrenchment has become inevitable.
(i) That employer was entitled to curtail the expenses even in case he apprehends future losses. In support of the above contentions Learned Counsel has placed reliance on number of authorities which include--
(1) Abbasi Textile Mills v. The Industrial Court, West Pakistan, 1966 P.L.C.
552.
(2) NurElahi v. The State, PLD 1966 SC 708.
(3) United Bank Limited v. Shamim Ahmed Khan, 1999 PLC 1032.
(4) Islam-ud-Din v. Ghulam Muhammad PLD 2004 SC 633.
(5) Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque, 2004 PLC (CS) 1151.
9. Conversely it was contended by Chaudhry Muhammad Ashraf, Advocate appearing on behalf of the respondents/workers as under:--
(a) That the action of the appellants/Management was not bona fide as the juniors were retained in service.
(b) That despite orders passed by the Labour Court on the application moved by the workers, the appellant/Management failed to produce the record of juniors who were retained in service.
(c) That no evidence of any kind was led by the appellant/Management to prove the reasons for retrenchment as claimed by them.
(d) That the NIRC has the jurisdiction only in respect of the matters involving unfair labourpractice while the Labour Court has the jurisdiction to adjudicate and determine the validity of the actions of termination and dismissal etc.
(e) That despite repeated' opportunities afforded to the appellant/Management no evidence was adduced by the Management. Twice the orders passed by the Labour Court were taken to the High Court and the High Court issued directions for disposal of the matters expeditiously. In spite of that the appellant/Management tried to prolong the matters.
(f) That the Management failed to discharge its burden to prove by leading positive evidence that the retrenchment was bona fide, it was essential and that there was no option except to take such action.
(g) That the written statement filed by the appellant/Management could not be taken into consideration as the signatory to the written statement was not tendered in evidence.
10. Learned Additional A.G. Supported the case of the Respondents on merits, but submitted that the Labour Court ought to have given opportunity, to the appellants for providing evidence.
11. Arguments advanced by Learned Counsel for the parties have been considered in juxta position of the relevant case-law and the material placed on the record has been perused.
12. At the outset it must be stated that the propositions of law relied upon by the parties are inescapable. Guidance has been taken from the principles of law laid down on the points involved.
However, it was not deemed appropriate to make reference to each authority cited by. The Advocates of the parties, as more than few of them were not found relevant.
13. It is an admitted position that the respondents/workers were employed on permanent basis. The appellant/Management, has no complaint against their work and conduct. The service of respondents and other workers totaling to 171 were terminated vide order dated April 20th, 2000, service thereof was denied/disputed by the respondents/workers. Anyway it was published in the newspaper daily `KAWISH' Hyderabad. It will be appropriate to reproduce hereunder the contents of the letter of termination, which is available on the record:-- "Subject:--Letter of Termination.
' Due to continuous operational losses, as also over-staffingresulting in high cost of production coupled with crises in the Sugar industry due to shortage of Sugar Cane which has resulted in reduced period of crushing, as well as lesser production. Since the fixed over heads of the company remain high, it has become imperative that the company has to adopt remedial measures and undertake re-organization so as to make the operations/company as economically viable unit.
' The Management has decided to abolish the post. Now, therefore, for .The aforesaid reason, your services are being terminated with effect from 21-4-2000 on payment of one month salary in lieu of notice.
' You are directed to collect your legal dues as well as amount of gratuity and Provident Fund on any working day. Yours faithfully, For SHAHMURAD SUGAR MILLS LIMITED (Sd)
General Manager."
14. A bare perusal, of the letter of termination would reveal that the reasons assigned for retrenchment, necessitating termination of the workers were as under:--
(a) Due to continuous operational losses.
(b) Over staffing.
(c) Crises in Sugar Industry due to shortage of sugarcane.
(d) Reduced period of crushing.
(e) Lesser production.
15. In the written statement it has been pleaded that the appellant/Mills sustained operational losses, it is further stated that the business was deteriorated and there were financial stringencies.
However, no tangible material has been placed on record to substantiate the above reasons.
Photostat copy of profit and loss account for the year ended 31st September 1999, shows the profit after taxation to be Rs,17864 (Thousands) in the year 1999 which before taxation was 23463 (in, thousands). Strangely enough, this document produced by the appellants along with their written statement speaks not about the loss for the period ended 31st September, 1999 but about profit Muhammad YaseenShahid who appeared as witness in the case of Naseer Ahmed (Application No,177 of 2000) candidly conceded in his cross-examination that "It is a fact that in the season .1999-2000 in the BalanceSheet the profit was shown". Along with the written statement press cuttings have been placed on record to demonstrate that the company has sustained losses.
Document R-11 which has been shown to be a press cutting from Business Recorder of Monday 24th April, 2000, reads "except for the last year the company has not missed a single year of profit distribution since 1994". The overview of the Mills contained in the said report goes on to disclose as under:-- "Last year the company had suffered loss of Rs,14.34millions despite higher sales than the year under review. It appears that the company has been more closely monitored. Added to that there is the availability of large 'other' income which helped the enterprise to turn the table. The company posted profit after tax at Rs,17.86 million which works out to the earning per share at Rs,9.85. This enable the management to pay cash of Rs,0.75 per share."
16. This overview published in the Business Recorder produced by the appellant/Management themselves shows that the company was financially in better and sound position in the year Laded 30th September, 1999. No figures of losses for the previous years were placed on record to show that there were continuous operational losses as claimed in the letter of termination.
' So far as the plea of overstaffing in the Mills is concerned, no comparative statistics relating to the figures of employment of Mills of same crushing capacity was produced misconceived. NIRC can take cognizance in the matter only if there is an allegation of unfair labour practice. The jurisdiction for determining the individual grievances of the workers is vested in the Labour Court and it is only the Labour Court which is competent to redress the individual grievance of the workers. Since the respondents/workers were aggrieved of the action of appellant/Management of their termination they challenged the said action before the Labour Court and learned Labour Court was a competent forum to adjudicate the grievances and decide the matters.
22. The contention raised by the appellant/Management to the effect that they were not provided ample opportunity to adduce evidence in other cases except Grievance Petition No,177 of 2000, suffice it to say that a number of adjournments were granted to the appellant/Mills, but despite several opportunities, the appellants failed to adduce evidence. Consequently their side was closed vide order dated 5-1-2004. However, on revision the High Court vide order dated 15-3-2004 allowed the appellant/Mills to lead evidences and their side was opened subject to payment of costs. The appellant/Mills was allowed 15 days time to file affidavit in evidence. Simultaneously Labour Court was directed todispose of the matter within/three months. Despite that the appellant/Management could not adduce evidence in the cases (except petition No,177 of 2000) till the expiry of six months with the result that their side was again closed on 11-9-2004. The application for re-opening the side was also dismissed on 11-12-2004. Thus it will be seen that, despite repeated chances given to them when they failed to tender the witness in evidence, learned Labour Court had no option but to close their side. In view of above, it does not lie in appellant's mouth to argue that they were no given sufficient opportunity to lead evidence.
23. It has been consistent view of the Superior Courts that inordinate delay in adjudication of the disputes more particularly labour disputes be curtailed as far as possible. The Labour Laws are beneficial laws and have been implemented with the purpose of resolving the grievances of the workers as expeditiously as possible. Section 46 provides that the decision of the Labour Court shall be given within seven days. This by itself shows anxiety of the Law Makers of expeditious redress of the grievances of the workers. Unfortunately these cases have taken more than four years for adjudication before the Labour Court. As provided under the taw no evidence can be adduced beyond the pleadings. Though the averments made in the written statement could not be considered as C evidence, yet since the appellants have failed to adduce evidence, I have proceeded to consider the pleas taken by the appellants in the 'written statement in order to see whether any tangible defence has been taken. But the above discussion would amply reveal that no defence whatsoever has been taken to substantiate the plea of re-organization as no evidence of whatsoever nature has been led on the causes assigned by the appellant/Management in the very letter of termination. Since no evidence can be led beyond pleadings and there is nothing substantial in the pleadings to prove the contention of the appellant/Management that the retrenchment was justified, I do not see any reason to take a different view.
24. A plea was raised that because the petitions were disposed of by the Labbur Court by a single order, thus the orders was without application of mind which caused prejudice to the appellant.
The reason and example cited for such prejudice was that the name of the Management witness who appeared in evidence in the case of Naseer Ahmed was Muhammad YaseenShahid, while learned Judge mentioned his name to be Nusrat Ali Khan in the Judgment. Apart from mentioning incorrect name of the witnesses there is no other error, which fact was conceded by the learned Advocate. Now the plea whether a party can claim to be prejudiced by mere mentioning of incorrect name of a witness is beyond comprehension and untenable as this fact by itself would not be enough to cause prejudice. Learned counsel for the appellant instead of pointing out any material irregularity or illegality,raised an objection, which was totally misconceived. The order could not be disturbed on the basis of such frivolous and concocted pleas, whereby no prejudice of any kind was caused to the parties.
25. The perusal of the orders passed by the Labour Court would clearly reveal that it was substantiated by valid reasons. It needs no interference, except some modification.
26. Vide the impugned order passed by the Labour Court it has directed that the respondents be reinstated in service with full back-benefits. I am of the view that their reinstatement in service should not be ordered for the reason that since the Management is already nursing grudge against them, they may not be acceptable to the appellant, which may result in differences and disputes as by their reinstatement the Management may feel more embarrassed. Since a provision has been made in the I.R.O. 2002 for grant of wages as compensation in lieu of reinstatement. I would prefer that instead of reinstatement the respondents be compensated by way of awarding them wages. Accordingly in lieu of the reinstatement the respondents shall be entitled to 24 months wages besides the back-benefits.
' These are the reasons for the following short order passed on 27-5-2005.
' Learned Counsel for the parties have concluded their arguments. For detailed reasons to follow, the appeals are dismissed. The order dated 19-1-2005 is however, modified to the extent that instead of reinstatement, the respondents shall be entitled to the wages for a period of 24 months besides the back-benefits. The net result would be that respondents shall not be reinstated in service. They shall be entitled to back-benefits plus wages for 24 months.