' SHAHID ANWAR BAJWA, J.--- By this order I propose to decide C.P. No,S.316 of 2009 and C.P. No,S- 317 of 2009 as common questions of law and facts are involved in these petitions. The petitioner in both these petitions is a private limited company (hereinafter referred to as the employer).
Respondent No,2 in C.P. No,S-316 of 2009 claimed in his grievance petition that he was employed by sister concern of the employer in March, 1983 and was subsequently engaged by the employer itself. He claimed that he was last drawing a sum of Rs,7,200 per month. It was claimed that a large number of workers were working in the respondent establishment and therefore, Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to the employer's establishment. It was alleged in the grievance petition that all of sudden in June, 2005 the employer closed down the entire factory without obtaining necessary permission as required by Standing order 11-A of the Ordinance of 1968. However, the respondent No,2 (hereinafter called the employees was retained in employment. Thereafter the employee stated in his grievance petition that his wages for the month of May to the extent of Rs,2,500 and for the entire month of June were withheld. On 11-7-2006, the employee claimed that he requested the. Employer for release of his deducted wages and payment of his unpaid wages. However, instated of payment, his employment was orally terminated. The employer entered appearance and filed his objection/reply. The employer claimed that the employee had never been employed by him at the alleged salary. It was further claimed that Organization was a small establishment. Therefore Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to it. It was further stated that the establishment was eventually closed in June, 2006 with consent of all employees whose number had never been 20 or higher. It was also submitted that petition for permission to close down has been filed. It is no one's case that such petition was filed before the grievance petitions were filed. The grievance petition after recording of evidence was decided by the learned Labour Court vide order dated November 3, 2008. The operative part of the order reads as under:--- "But as it has come on record that the factory in question undisputedly been lying closed since June, 2005, instead of reinstating the applicant in service the Court orders the respondent to compensate the applicant under section 46(5) of the I.R.O. 2002 by making him payment of an amount equivalent to his 20 months basic pay last drawn by him and house rent, if admissible, in lieu of reinstatement in service plus back-benefits and routine legal dues, within a period of 30 days from the date of receipt of this order".
2. Certified copy of the order was supplied on 13-11-2008. Since no Labour Appellate Tribunal has yet been constituted in the Province of Sindh, this writ petition was filed.
3. The respondent No,2 in Writ Petition No,317/2009 in his petition claimed employment with effect from January, 1987; claimed at Rs,1500 of his wages or may had not been paid as well as whole wages for June, 2006 and order was passed by the Labour Court with identical relief on 26-9-2008.
Certified copy was provided on 22-10-2008. Since no Labour Appellate Tribunal has been constituted in the Province of Sindh, this Constitutional Petition was filed on 10-1-2009.
4. The learned counsel for the petitioner submitted that the factory employed less than 20 persons and no finding in this regard has been given by the learned Labour Court. Although an application for production of attendance register etc was filed by the employee, it was not necessary because number of employees as less than 20 was admitted. He lastly submitted that Labour Court while awarding compensation cannot have given back-benefits also.
5. The learned counsel for the respondent employees submitted that it was clearly stated in para-8 of the affidavit-in-evidence that there were 300 Single Sewing Machines in the factory apart from other machinery. Downloaded documents from company profile published in the publication of the Federation of Pakistan Chambers of Commerce & Industry Export Trophy Award were produced as A.W-1/7. It was downloaded on June 17, 2005 and it is clearly stated that quantity of machinery included 250 Single Needle Machines and productivity of approximately 5000 dozens per month.
No question in this regard had been asked in the cross-examination. Learned counsel further submitted that it is not forbidden that back-benefits cannot be given besides compensation. The jurisdiction of the Labour Court is to pass such order as it deems just and proper under the circumstances and just and proper indicates that a worker wrongfully removed should be treated in employment till the date of the order of the Labour Court. He relied upon Urdu Academy Sindh v.
Sindh Labour Appellate Tribunal and another, 1989 PLC 187.
6. Exercising his right of reply the learned counsel submitted that Computer downloads do not bear signature of any officer of the employer and this question was extensively asked in the cross- examination.
7. I have considered the submissions made by the learned counsel and have gone through the record. I will attend to an aspect that is peculiar to Constitutional Petition C.P. S-317 of 2009. The order of Labour Court was passed on 25th September, 2009; certified copy enclosed indicates that it was certified on 22-10-2008. Industrial Relations Act received assent of the President of Pakistan on 6-12-2009. Period for filing appeal under section 47(3) of the Industrial Relations Ordinance, 2002 was 30 days. Therefore, this petitioner could have filed appeal in this High Court by 21-11-2008.
The petitioner did not avail that remedy of appeal available to him. In Constitutional Petition the High Court can come to the aid and succour of the vigilant and not to the indolent. Therefore, Writ Petition No,S-317/09 is dismissed.
8. As far as the Writ Petition No,316/2009 is concerned, the first question is of the number of the employees. Tagged with this question the question whether the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to the petitioner's establishment because under first proviso to section 1(4)(a) if number of workmen employed is less than 20, then the Standing Orders Ordinance would not be applicable to that establishment. The worker in this grievance petition stated that a "large number" of workers were employed. When the employer filed reply statement, the employer in para.5 stated that firstly the factory was closed and secondly number of employees employed was less than 20. In affidavit-in-evidence the workers stated that the respondent had about 300 Single Machines apart from other allied machinery and produced downloads from publication of Federation of Pakistan Chambers of Commerce & Industry. I have already earlier referred to that download. In his cross-examination the worker admitted that establishment of the petitioner was closed in June, 2005. He also admitted that the downloads do not bear stamp of Aneeza Garments (Pvt.) Ltd. And signatures of any of its Directors. In affidavitin- evidence the employer stated that number of his employees is not more than 20 and the factory was partially closed in June, 2005 and completely closed in 2006. In cross-examination, it was admitted that attendance register and wages record of employees was not submitted by the petitioner. Relationship of employer and employee was denied. However, in this petition the learned counsel for the petitioner submitted that he would not contest the order of Labour Court on the question of relationship of employer and employee. Specific suggestion was put in the cross- examination that there was 400 workers in the establishment which was denied by the employer.
Contention by the employee was very clear. There were 400 workers and about 300 Single Needle Machines. He produced downloads from FPCCI Publication. The employees nowhere stated that these publications are fraudulent or bogus and contain wrong information. Question was asked in the cross-examination for production of attendance register and wage registers. The employer did not produce these documents, the learned counsel referred to in his arguments was A.W.1/5. It was a document filed with the grievance petition and its title is "Staff salary for the month of September, 2005". Number stated therein is 15. It is interesting to note that there is a production incharge in the documents, there is finishing incharge in the documents but there is no production worker in this document. Designation of all the persons indicates that none of them is a factory worker. Therefore, as far as the respondent No,2 is concerned, he discharged his burden. The burden was thereafter on the petitioner to discharge. The petitioner could have produced wage register or attendance register or factory returns filed by him with the Labour Department. The petitioner chose not to do so. Therefore, I don't think any interference is called for in the order of Labour Court that number of workers/ employees was more than 20. Therefore Ordinance of 1968 is held applicable to the employee's establishment.
9. The Labour Court has ordered compensation under section 46(5) of the Industrial Relations Ordinance, 2002 of an amount equivalent to 20 months basic pay and house rent if admissible in lieu of reinstatement in service plus back-benefits. The grievance of the petitioner is that the Labour Court could not have ordered for the payment of both.
10. Section 46(5) of the I.R.O. 1969 provided as under:--- "46(5) The Labour Court, in case the termination of services of a workman is held to be wrongful, may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent, if admissible, in lieu of reinstatement of the worker in service."
11. The question whether both benefits i.e, compensation and back-benefits can be granted or whether when compensation is granted back-benefits can not be granted is the question involved in this matter. The case law does not have a very long history. One of the first cases on the subject is Shah Murad Sugar Mills Ltd. v. Mir Ali Muhammad and Others 2005 PLC 449. The total discussion on this point is contained in para.26 in the following words:- "(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 respondent be compensated by ways of awarding them wages. Accordingly in lieu of the reinstatement the respondents shall be entitled to 24 months wages besides the back-benefits."
12. The matter was taken to the Supreme Court. Judgment of the Supreme Court is reported 2006 TD (Lahore) 471. The discussion of the issue involved in this case is in para.5 of the judgment which is as under:--- "(5) It may also be noticed that High Court modified the direction of reinstatement with payment order of the wages/salaries for 24 months. The learned counsel has argued that in view of the order of this payment, the Court could not have ordered the grant of back-benefits. We do not find any substance in this submission. The payment order of 24 months' salary is in lieu of the order of reinstatement. It cannot be said to cover or include back-benefits which had to be paid unless it is shown that from the date of termination till the date of decision the respondents workers were fruitfully employed. Such evidence has not been shown to Court."
13. Sirajuddin v. S.I.T.E. Engineering Works, 2006 PLC 462, where the judgment was authored by the same Single Judge who authored judgment in the Shah Murad Sugar Mills Limited case and in terms of discussion on the issue, the following was all that was observed:--- "(10) However, learned Labour Court instated of reinstating the appellant, deemed it appropriate to award him compensation equivalent to 20 months wages. But strangely enough the Labour Court did not award him back-benefits. Nothing has been placed on record to show that the appellant has remained in gainful employment during the period he remained out of job. In the circumstances, it was incumbent upon the learned Labour Court to have awarded back-benefit to the appellant, as ruled by the Honourable Apex Court in the case reported as 1983 SCM R 105.
' In the case of Shah Murad Sugar Mills Ltd. v. Mir Ali Muhammad and others reported in 2005 PLC 449, I have allowed back-benefits besides compensation to the workers in lieu of reinstatement.
This view was approved by Honourable Supreme Court vide dated 26-9-2005 and the Civil Petition Nos. C.P. No,537-K of 2005 to C.P. No,544-K of 2005 challenging the said judgments were dismissed."
14. In Messrs Metal Containers (Pvt.) Ltd., Tausif-un-Nabi, Civil Petition No,121-K of 2007, decided on 6-8-2007 the Supreme Court had ordered as under:--- "....The appellant did not resign from the services. I am convinced that the respondent had adopted mode for termination of the services of the respondent which cannot be sustained under law being based upon mala fides.
' In view of the grudge nourished on account of the past litigation between the parties I am of the view that reinstatement in the services of the establishment would not resolve the dispute therefore, the appellant is directed to be compensated by way of awarding 30 months wages in lieu of reinstatement besides the back-benefits in terms of section 46(5) of Industrial Relations Ordinance 2002".
15. Then the matter went to the Supreme Court, the Supreme Court did not go into the question whether both benefits can be given or not it merely dismissed appeal by saying that impugned judgment did not call for any interference.
16. The last judgment is Balochistan Engineering Works Ltd., v. Abdul Hameed and others 2007 PLC 426, where judgment was announced on 12-9-2006, the paras. Dealing with the question in issue are para.18 and 19 and are in the following words:---
(18) The careful and minute perusal of the operative part of the impugned judgment reveals that the learned counsel for the respondents/ workers impliedly accepted the position with regard to the compensation awardable to worker found to be wrongfully terminated from service in lieu of his reinstatement in service; to us could not amount or termed as an express admission or offer for and on behalf of the respondents to be compensated in lieu of their reinstatement in service which on the other hand obviously as against the compensation of fifteen months salary awarded to them would deprive the said respondents/workers from the back-benefits since the date of their termination from service financially detrimental to their interests, hence; the stated implied acceptance of the position relating to the compensation as envisaged by section 46(5) of the Ordinance would not amount to convey in explicit terms that the respondents had accepted to be compensated i.e, awarding them each of fifteen months salary instead of their reinstatement in service from the date of their termination i.e, 31-8-2000. Secondly, the order, dated 18-10-2005 passed by the learned Judge in High Court in Labour Appeals Nos.14 to 17 of 2005 was a consent order, whereby the petitioner-Company was allowed to pay the wages to the respondents within fifteen days of the said order by depositing pay order in the Labour Court for the period from 31-8- 2000 by upholding the order of the 3rd Labour Court, Balochistan, at Hub on 21-5-2005.
(19) Adverting to the contentions of the learned counsel for the petitioner-Company, we are of the considered opinion that the provisions of section 46(5) of the Ordinance leads to no ambiguity or confusion, which provides that if the termination of the service of a workman is held to be wrongful by a Labour Court, it may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent if admissible in lieu of reinstatement of the worker in service, clearly laid down that even if a worker had been found to have been wrongfully terminated from service instead of making the order for his reinstatement in service, he could be compensated in terms of above said section and when such a worker is to be compensated in lieu of his reinstatement, such a worker obviously would not be entitled for the back-benefits for the period for which he remained out of service, thus, both the reliefs simultaneously are not permissible' under the law.
17. Learned counsel for the appellant placed a lot of emphasis at Balochistan Engineering Works Limited's case and stated that it was passed on 12-9-2006 whereas Metal Container's case judgment was passed on 6-8-2007. Therefore judgment in case of Balochistan Engineer Works.
Limited, has to be considered as last word from the Supreme Court and binding. I am afraid I cannot agree with the proposition that merely because a judgment is later in time, it must have higher value than the judgment earlier in time. Of course such would be the position when the judgment later in time considers the judgment earlier in time and thereafter the Supreme Court a pronouncement of the law of the land is made by the Supreme Court. In such a situation one can say that Supreme Court has expressed its latest view while after considering the previous judgment. I may reproduce here a very pertinent observation from Salmond on Jurisprudence which is in the following words:--- "(5) Inconsistency between earlier decisions of the same rank.--- A Court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of appeal (z), Court of Criminal Appeal (a) and Divisional Court (b), and it obviously applied also the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the Court is bound by its own decision? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized.
Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier cases were not cited in the later. One may sometimes suspect that the "inadvertence" is intentional---a Nelsonian "blind eye". But usually there is no need to resort to this hypothesis: owing to the vast number of precedents, and the heterogeneous ways in which they are reported---or are not reported---it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the Court, or mentioned in the judgments, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later Court."
18. It may be pointed out that words "in lieu of" mean "instead of", "in place of", "in substitution of".
Therefore, if the Labour Court decides that in lieu of reinstatement the employee is to be paid so much as compensation it ipso facto means that this compensation is being paid in place of, instead of or in substitution of reinstatement. Therefore, reinstatement is not there. Back-benefits whenever ordered are consequent upon reinstatement. There cannot be back-benefits without there being reinstatement. That is to say back-benefits follow reinstatement. If reinstatement is not there, how can back-benefits follow compensation. Therefore, respectfully following the dictum of the Supreme Court in Balochistan Engineering's case I do not think the order of the Labour Court to the extent of back-benefits would be sustainable. Therefore, the respondent No,2 shall only be entitled to compensation as ordered by the Labour Court.
19. Result of the above discussion is that Writ Petition No,S-317 of 2009 is dismissed, whereas the Writ Petition No,316 of 2009 is allowed in terms that the employee is to be paid compensation under section 46(5) of the Industrial Relation Ordinance, 2002 by making payment of an amount equivalent to 20 months basic pay last drawn by him and house rent, if admissible, in lieu of reinstatement in service. There is no order as to costs.