' CH. IJAZ AHMED, J.---Necessary facts out of which the present appeal arises are that respondent submitted application under section 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in the Sindh Labour Court No,3, Karachi, seeking permission on the ground of suffering of loss which was accepted by the Labour Court vide order dated 19-7-1986.
The respondent on the same date terminated the services of the appellants. The appellants being aggrieved filed an application before the Labour Court with the prayer that since they are not impleaded as party during the course of proceedings under section 11-A West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore termination orders be declared as illegal, which was rejected by the Labour Court. Appellants being aggrieved filed Constitutional Petition before the High Court of Sindh, which was dismissed vide order dated 13-7- 1986 by holding that when the permission sought by the respondent under section 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was granted and as a consequence respondent had terminated the services of the appellants, therefore, appellants had a proper remedy in the form of section 25-A of IRO, 1969 qua the termination by the respondent. The appellants filed application under section 25-A (10) of IRO, 1969, before the said Labour Court. Respondent filed written statement. Out of the pleadings of the parties, the learned Labour Court framed the following issues:--
(i) "Whether application is time-barred?
(ii) Whether services of the applicants were rightly terminated by the respondent?
(iii) What should the order be?"
2. The learned Labour Court accepted the application of the appellants vide order dated 13-10- 2004, wherein the respondent was directed to reinstate the appellants/applicants in the service with full back-benefits within one month. The respondent being aggrieved filed appeal under section 47(3) read with sectioti 48(1) of IRO, 2002, in the High Court of Sindh, Karachi (Labour Appeal No,412 of 2004). The learned High Court had accepted the appeal and the order of the Labour Court was set aside. The appellants being aggrieved filed Civil Appeal No,968 of 2006 before this Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973.
3. The learned counsel of the appellants submits (i) that the learned Labour Court had accepted the application of the appellants, after application of mind and appreciation of evidence on record and had given definite finding that the respondent-Company remained open and in production after the order dated 19-7-1986 passed by the Labour Court under section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the learned High Court had erred to reverse the finding of the Labour Court without adverting to the command of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to which the respondent-Company was required to remain closed for one complete year after the termination of services of the appellants; (ii) the learned Labour Court had construed the audit reports filed by respondent-Company and had rendered finding of fact that respondent-Company remained in production and its raw-material was consumed during the year between 1986-1987 during the period of closure. Whereas the learned High Court had misconstrued the said audit reports while reversing the finding recorded by the Labour Court (iii) the learned Labour Court had given finding of fact against the respondent that the order passed under the Standing Orders Ordinance, 1968 was abused by respondent- Company for mala fide to terminate the appellants and hiring workers on contract basis, which was reversed by the learned High Court without adverting to the facts and circumstances and the evidence on record. This fact shows that the learned High Court had reversed the finding of the Labour Court by misreading and non-reading of the record. Similarly, the learned High Court had also misread balance-sheet of 1985-1987 produced in the evidence on record which clearly depicted that the respondent did not keep the factory closed for 12 months from the date of its closure after 19-7-1986 up till 19-7-1987 as finding rendered by the Labour Court which was reversed by the learned High Court without proper appreciation of evidence on record.
4. The learned counsel of the respondent has supported the impugned judgment and stated (i) that the learned High Court had considered the evidence on record and after proper application of mind and after the re-appreciation of evidence on record had reversed the finding of the Labour Court as evident from the paras 6 to 8 of the impugned judgment; (ii) that the learned High Court had not considered the documentary evidence in the said paragraphs but had reversed the finding after application of mind. As the learned High Court had reversed the finding without mentioning the documentary evidence in the afore-said paragraphs, therefore, the impugned judgment of the learned High Court be set aside and the case be remanded to the High Court to decide the case afresh.
5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce operative parts of the orders of Labour Court as well impugned judgment to resolve the controversy between the parties:--- ' Operative Para of the Labour Court:-- "Crux of the issue for consideration before me is that whether the condition precedent for respondent for terminating the services of the applicant was fulfilled by the respondent? The order of this Court to allow permission to close down the factory was thus a condition precedent for terminating the services of applicants. The factory has not been closed at all. The audited Financial Statements for the period ending 30th June, 1986, 30th June, 1987, 30th June, 1988, 30th June, 1989, 30th June, 1990, 30th June, 1991, 30th June, 1992, 30th June, 1993, 30th June, 1994 and 30th June, 1995, have been produced by the applicants as well as by the respondent during course of their evidence hereinafter referred to as "The Statements". The statements have not been disputed by the respondents. Records show that respondents were granted permission to close down the factory on 19-7-1986 by this Court. Thus the factory ought to have been closed down particularly from 20-7-1986 but "the statements" clearly disclose that factory in fact remained in operation.
"The statements" as referred to above demonstrate the complete picture of operation of factory.
"The statements" further confirm that the factory has even not been leased out to anyone and being run by the management itself. "The Statements" falsified the contention of respondent with record to closure as well as leasing out the factory at site. The factory is still in operation in the name of United Carpet Ltd., as entity of respondent has been allowed to be merged with Messrs United Carpets by the Honourable High Court of Sindh vide order dated 6-3-1997. The factory of respondent is therefore not only in existence but it is also in operation as well. Tnus it has been proved that despite having permission to close down, the factory has not been closed. In the circumstances the termination of applicants from their services cannot be termed as legal and valid in the eyes of law. It has been proved on record that bona fide order of the Court has been used for mala fide purpose. It is unfortunate that the respondents have exploited an order of a Court that also to victimize their workmen, The observations and discussions as mentioned above simply prove that services of the applicants were terminated without fulfilling the condition of closing down the factory. As such the order of the termination of applicants as passed by respondent has no force being nullity in law. The order is required to be quashed. The issue is decided in favour of the applicants."
' Operative Para of the High Court:-- "It seems that a plea was raised before the Labour Court that the establishment was being run by employing persons on temporary basis. However, neither in the pleadings nor in the evidence any specific instance was given to show that anybody was appointed on temporary basis in replacement of the permanent workers. Nothing has been brought on record to that effect.
Nevertheless, on the demand of the respondents audit reports of the appellant company were produced in evidence which speak contrary to the claim made by the respondent workers."
6. In case the afore-said operative paras of the orders of the Labour Court and impugned judgment are put in a juxtaposition than it is crystal clear that the learned High Court had reversed the finding of the Labour Court without application of mind and even without adverting to the documentary evidence on record.
7. Such an order, we regret to say, does not disclose a proper application of mind of the High Court to the merits of the case that was before it. This Court has laid down afore-said principle in various pronouncements. See Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of West Pakistan and others PLD 1970 SC 173. It is settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, as the learned High Court A had disturbed the finding of fact in violation of the dictum laid down by this Court in the afore-said judgments, therefore, the impugned judgment is not sustainable in the eyes of law. It is pertinent to mention here that even the public functionaries are duty bound to decide the case after application of mind, after addition of section 24-A in the General Clauses Act, as law laid down by this Court in various pronouncements. See Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCM R 2268.
' It is better and appropriate to reproduce subsection (5) of section 25-A of IRO, 1969, to resolve the controversy between the parties: "in adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."
8. The learned Labour Court had decided the application of the appellants after application of mind but the learned High Court while reversing the finding of the Labour Court in the impugned judgment did not advert to the command of subsection (5) of section 25-A of the IRO, therefore, the impugned judgment is not sustainable in the eyes of law as law laid down by this Court in Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447. The learned Labour Court as is evident from the operative para reproduced hereinabove, the termination of the appellants in process of retrenchment would be open to interference as the orders of termination did not give explicit reason as is shown to have been passed mala fide or in colourable exercise of powers under the Standing Orders Ordinance. This finding was rendered by the Labour Court after proper appreciation of evidence keeping in view mandate of standing orders which was reversed as mentioned above without adverting to the documentary evidence as well as mandatory provisions of law by the learned High Court in the impugned judgment. We have also examined the documentary evidence with the assistance of the learned counsel of the parties and have also come to the conclusion that the termination orders of the appellants/retrenchment orders under the circumstances was colourable exercise of the Authority and far from being bona fide, therefore, termination orders/retrenchment orders were unwarranted and the learned Labour Court was justified to set aside the termination orders passed by the respondent against the appellants with cogent reasons and reinstated them with back-benefits which was reversed without considering the mandatory provisions of Standing Orders Ordinance by the learned High Court through the impugned judgment. It is better and appropriate to reproduce relevant provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to resolve the controversy between the parties:- ' 11.A.Closure of establishment.--Anything contained in Standing ' Order 11, no employer shall terminate the employment of more than fifty per cent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the vent of fire, catastrophe, stoppage of power supply, epidemics of civil commotion.
' Explanation.--- 'Close down' in this Standing Order includes lay-off of workmen beyond fourteen days where such lay-off results in closure of an establishment but does not include lockout declared, commenced or continued in accordance with the provisions of the Industrial Relations Ordinance, 1969 (XXIII of 1969).
(12) Termination of Employment.--- (1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice.
' The services of a 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 provisions 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.
(13) Procedure for retrenchment.--Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category.
[Notes: Junior-most workmen are to be retrenched first without any exception]
(14) Re-employment of retrenched workmen.--Where any number of workmen are retrenched and the employer proposes to take into his employ any person within a period of one year from the date of such retrenchment, he shall given an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by registered post to their last known addresses to offer themselves for re-employment, and they shall have preference over other persons, each having priority according to the length of his service under the employer.
9. The learned Labour Court had kept in mind the afore-said provisions to decide the grievance petition of the appellants whereas the learned High Court had decided the appeal of the respondent without adverting to the afore-said provision of law. This fact alone is sufficient that the learned High Court had accepted the appeal on surmises and conjectures. It is pertinent to mention here that it is the right of every individual under Article 4 of the Constitution of Islamic Republic of Pakistan to be dealt with in accordance with law and where law has not been correctly or properly observed, it is proper case for interference by this Court in exercise of its Constitutional Jurisdiction under Article 185(2)(d) or under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Every citizen is bound under clause 2 of Article ) of the Constitution of Islamic Republic of Pakistan to obey the Constitution and law as that is the basic obligation. It is inherent right of the appellants that the learned High Court had to decide the case within the para meters of the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, Industrial Relations Ordinance and under Articles 4 and 5 of the Constitution. The learned High Court had erred in law to reverse the finding recorded by the learned Labour Court without appreciation of evidence on record. We are perfectly conscious as ultimate Court in the land, this Court has a rule, to give due weight and consideration to the opinions of the Court below and in particular to the opinion of the Court of first instance which had the advantage of hearing the parties, witnessing and watching the demeanor. Generally, this Court does not interfere with the findings of fact reached by the primary Courts or High Court when it is satisfied that the finding of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. In the instant case, ID however, it is difficult to avoid the impression that the conclusions drawn by the High Court suffers from serious error of law and fact, which are unless set aside are likely to result in miscarriage of justice. We have already referred to misreading of the averments as highlighted by reproducing operative paras of the order of Labour Court and the High Court. Therefore, if suggestion of the learned counsel of the respondent is accepted and the case is remanded to the learned High Court for fresh adjudication of the appeal only for re-writing a judgment, it will serve no useful purpose and would prove an exercise in futility. See Mst. Sughra Bibi v. Khushi Muhammad 1989 CLC 2465, Arshad Amin v. Messrs Swiss Bakery and others 1993 SCM R 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC 1029, we are not inclined to remand the case to the learned High Court for fresh decision only for re-writing of judgment as the law laid down by this Court in Abdul Qadir's case (supra).
' In view of what has been discussed above, this appeal is accepted and the impugned judgment is set aside. Consequently, the order of the Labour Court is restored with no orders as to costs.