' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- Listed appeals have been filed against the judgment dated 12-9-2007 under Article 185(2)(e) of the Constitution whereas in Civil Petitions leave to appeal has been prayed under Article 185(3) of the Constitution of Islamic Republic of Pakistan. It is to be noted that Liaqat Muhammad' and Syed Riaz Ahmed, petitioners in C.Ps. Nos.633-K of 2007 and 640-K of 2007 respectively have expired on account of cancer on 9th January, 2010 and 30th April, 2010 respectively as it has been informed by Khawaja Muhammad Zubair, who himself is a petitioner in Civil Petition No,637-K of 2007 and respondent in Civil Appeal No,1759 of 2007.
2. The dispute between the parties is coming up for adjudication before this Court in second round of litigation. In the first phase Civil Petitions Nos.741-746-K of 2005 and C.Ps. Nos.748-K, 779-K, 781-K to 785-K of 2005, filed by the workers were disposed of on 25th November, 2005, when on setting aside the judgment dated 5th September, 2005 passed by the High Court, case was remanded for decision afresh.
3. Necessary facts relevant for disposal of the instant cases are that the appellant company (employer) instituted an application under section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 [hereinafter referred to as the Ordinance, 1968] before the Labour Court for the retrenchment of the workers. The Labour Court accepted request of the employer on 20th November, 1999 as a consequence whereof the appellant issued letters of termination of workers on 25th November, 1999. However, on 26th April, 2000 on behalf of retrenched workers about 198/199 applications were filed under section 25-A of the Industrial Relations Ordinance, 1969 read with S.0.12(3) of the Ordinance, 1968. The applications were contested by the employer. During pendency of the applications on the hue and cry of the workers, the Minister for Labour got conducted inspection of the factory through labour Department and on 23rd December, 1999 the Director Labour prepared an inspection note and recorded his finding based on the personal inspection contents whereof for the sake of convenience are reproduced hereinbelow:-- "(a) Tin manufacturing department was working with strength of 150 workers whereas food processing department was closed. This is exactly the opposite of Labour Court Orders which had allowed only food processing department to work and has granted permission to close down Tin manufacturing department.
(b) Tin manufacturing was in process however the quantum of work was much less than capacity.
(c) There was visible sign that the business is down and management is not receiving enough orders for Tin manufacturing and apparently no orders at all for food processing.
(d) Management is clearly violating the Court Orders and seems to have obtained the court orders on misconceived ideas. During the course of discussion, management flatly refused to accommodate the retrenched workers. The management further stated if they were pressurized they will be constrained to close down the unit and terminate the services of remaining 150 workers as well."
4. The above document was used by the workers in their favour as evidence. It is to be noted that meanwhile IRO 1969 was replaced by IRO 2000. The Labour Court instead of reinstating the respondents granted them compensation of pay for 20 months vide judgment dated 22nd May, 2003. Thus, relief was given to them under section 46(5) of the IRO 2002. Appellants being dissatisfied against the order of the Labour Court preferred the labour appeals before the High Court of Sindh mainly on the ground that letter dated 23rd December, 1999 being relied upon by the workers was not admissible as its original was not produced and Photostat was not sufficient to grant them relief. Learned Judge of the High Court on 5th September, 2005 accepted the appeals of the employer. Against this order petitions for leave to appeal were filed before this Court. At that time, the question before the Court for decision was that as to whether letter dated 23rd December, 2009 relied upon by the Labour Court is admissible or not. On having taken into consideration this aspect of the case, the Advocate-General, Sindh produced the original letter reference of which finds mention in the following para of the earlier judgment dated 25-11-2005: "We have heard petitioners, who appeared in persons and respondents' counsel as well as Advocate-General and have also gone through the contents of the letter dated 23rd December, 1999. It is to be noted that as far as the letter dated 23rd December, 1999 is concerned, it being the genuine one was accepted. The learned High Court erred in law in not accepting the same and if at all genuineness of the letter was doubtful, it could have referred the matter to the Labour Court for taking the evidence from the Labour Directorate to prove the genuineness of the letter."
5. However, this Court on accepting the letter to be genuine, on the question whether the relief sought by the workers/respondents before the Labour Court could be granted, remanded the case to the High Court for decision afresh. On remand the appeals of the appellant were dismissed and the amount of compensation equal to the pay of 20 months was increased to 30 months. As such instant appeals/petitions have been filed.
6. Syed Haider Ali Pirzada, Senior Advocate Supreme Court appearing on behalf of appellant contended that on 25th November, 1999 when the services of the respondents/workers were terminated in pursuance of retrenchment order dated 20th November, 1999 passed by the Labour Court, I.R.O. 1969 was applicable and that it did not contain any provision for grant of compensation, except one month's notice according to the Standing Order 12(3) of the Ordinance, 1968. Although section 25-A of the I.R.O.,1969 was resorted to by the employees seeking reinstatement, the relief can only be given to the extent whatever was provided in the said order.
7. One of the representatives of the respondents Khawaja Mubbashir Zubair who is himself respondent in Civil Appeal No,1759 of 2007 as well as the petitioner in C.P. 637 of 2007 argued the case on behalf of the workers/respondents. According to him the respondents have never claimed compensation as they were praying their reinstatement as per the prayer clause incorporated in the application under section 25-A of I.R.O., 1969, therefore, in the interest of justice on rejecting the appeals relief may be moulded to the extent of granting prayer of the workers whatever they had demanded in the application.
8. We have considered the arguments of learned counsel for the appellant who was assisted by the Chairman of the appellant company and his other staff and the representative of the respondents named above, carefully.
9. It is true that action of retrenchment against respondents workers was initiated under section 11- A of the Ordinance, 1968 and after their retrenchment their rights were to be governed under section 12 (1) of the Ordinance 1968 according to which if permanent worker is to be terminated other than misconduct, is entitled for one month's notice whereas subsection 3 of section 12 of the.
IRO provides "that Services of workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provision of] section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." A plain reading of the provisions i,e, S.0.12(1) and (3) of the Ordinance, 1968 make it abundantly clear that on account of removal on the basis of retrenchment a worker is not stopped from agitating his A termination before the Labour Court following the procedure laid down under section 25-A, therefore, the arguments put forward by the learned counsel that once workers have been given notice pay for one month they are stopped to challenge their removal by adopting the procedure laid down in S.0.12(3) is not sustainable. In other words one can conclude that both these provisions are independent from each other. A permanent worker, who had served his employer in the establishment and has attained the status of a permanent workman, is free to express his grievance as the right of his illegal termination can be agitated by him on the ground mentioned in the application submitted for getting relief of reinstatement. However, as is evident, the action was initiated against respondents under section 11-A of the Ordinance, 1968 and in pursuance of retrenchment order passed by the Labour Court the services of respondents were terminated and they after observing codal formalities initiated proceedings for their reinstatement by filing application under section 25 of the I.R.O., 1969 in that case, according to the settled principle of law their rights shall be governed by the law, which was applicable at the relevant time.
10. Learned counsel for the petitioner thus contended that as far as the letter dated 23rd December, 1999 which has been relied upon by the Labour Court as well as the High Court is concerned, was not admissible as its contents have not been established. It may be noted that in the first round of litigation this question was agitated with vehemence on behalf of the respondent and the genuineness of the document was accepted by this Court in presence of the learned counsel appearing on behalf of the appellant, relevant paras therefrom have been reproduced hereinabove. The learned High Court had also dilated upon the validity of this document keeping in view the earlier observation of this Court in the judgment dated 25th November, 2005. Thus, question being of factual aspect cannot be reconsidered or agitated in exercise of the constitutional jurisdiction of this Court.
11. Now turning towards the arguments of the learned counsel that in the earlier round of litigation before the Court only 43 workers approached this Court by filing petitions for leave to appeal, whereas the High Court had granted relief to all those persons/workers who were retrenched in pursuance of the order dated 20th November, 1999, as such according to his arguments the remaining workers are not entitled for any relief, we may observe that firstly this aspect of the case has been attended by the High Court from different angles but need not be dealt with in depth because of the reasons that the earlier judgment passed by the High Court dated 5th September, 2005 was set aside and the case was remanded and at that time appeals filed by some of the respondents and appeals of the appellants were also pending therefore, on remand of the case, those cases were disposed of jointly, as such this argument is not sustainable. On having taken into consideration above aspect of the case we have to look at the facts and circumstances of the case when the appeals have been filed by the employers and there is no appeal filed by the respondents to agitate against the order and arguments so raised on behalf of the appellant to the extent of granting compensation of 30 months' salary, the question for our consideration would be as to whether the respondents in their applications under section 25-A of I.R.O., 1968 had claimed compensation. A perusal whereof indicates that they had demanded their reinstatement and some of the persons who had filed the petitions before this Court were also agitating the same question of their reinstatement into service. Therefore, instead of sending back the case to the High Court for fresh decision we consider it appropriate in the interest of justice and to save the workers from further agony, exercise our jurisdiction under Article 187 of the Constitution as a result of which, while dismissing the appeals filed by the employer the relief granted to respondents is moulded and they are directed to be reinstated into service in view of their request which they have incorporated in their application under section 25-A. Resultantly, the appeals filed by the respondents are dismissed whereas the petitions filed by some of the workers are converted into appeal and allowed except the petitions filed on behalf of Liaqat Muhammad and Syed Riaz Ahmed as having abated on account of their death. Parties are left to bear their own costs.##TE#