' CH. IJAZ AHMED, J.---We intend to decide the captioned appeals by one consolidated judgment having similar facts and questions of law arising out of consolidated impugned judgment of the Balochistan High Court, dated 15-11-2007.
2. Detailed facts have already been mentioned in the impugned judgment and memo. Of appeals/petitions. However, necessary facts out of which these appeals arise are that appellant had terminated the services of the respondents under section 12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Respondents being aggrieved filed applications under section 46 of Industrial Relations Ordinance, 2002 read with section 12(3) of Standing Orders, 1968 before the Balochistan Labour Court No,III at Hub. Contents of the applications reveal that the respondents/applicants were permanent workers of the appellant- Company. While appellant is an establishment having more than 50 workers in their employment, registered under the Factories Act, 1934 and provisions of Standing Orders are fully applicable to them. The applicants stated that they are members of the Pakistan Synthetics Limited Mehnat Kash Union and due to their union activities the appellant-Company was unhappy with the respondents/applicants. The respondents further averred that the real and healthy trade unionism was never accepted by the appellant-Company and since last 14 years the appellant has its own pocket C.B.A. Union i,e, Pakistan Synthetics Limited Employees Union, and it is matter of record that during the last 14 years, the PSL Employees Union and the appellant-Company have not signed any agreement/settlement for betterment/improvement/increases in wages and facilities of the workers and it is for this reason that appellant's management is not in position to produce any agreement/settlement. It is averred that the appellant-Company has sound financial position earning profit from very beginning and even in the last financial year ended 30-6-2004 they have earned good profit. The respondents further mentioned that the appellant's management has created a lot of unions namely PSL Employees Union, PSL Labour Union and PSL Mazdoor Union just, to deprive the workers from their genuine and active representation through their Trade Union. It was also alleged that the above unions were only in the company's file while leadership was a puppet of the company. They all were affiliated with Pakistan Industrial and Mines Trade Union Federation which proves mala fide on the part of company. Respondents/applicants also alleged that some members challenged the bogus election of PSL Mehnat Kash Union wherein the learned N.I.R.C. Has directed to hold the elections of the Union under the supervision of the Deputy Registrar of N.I.R.C. In the Election the puppet has lost and election was won by Abdul Salam Panel which was not acceptable for the appellant-Company, while during election the respondents and other members were harassed and pressurized/forced to cast their votes in favour of the appellant- Company patronized panel i,e, Gul Ahmed Panel but on refusal the threats of removal from employment and termination were extended. The appellant-Company effected lay off for the period 13-1-2005 till 14-3-2005 without any physical break. The reasons mentioned in the layoff notice are not correct not true; the respondents were laid off but there were dozens of junior workers of the same category as of the respondents were performing their duties. There were also dozens of daily rated workers in the same category as of respondents who were not laid off and were performing their normal duties. The said lay off was neither legal nor valid and the respondents were entitled for full wages during that period. The respondents averred that on 10-3- 2005 a letter of termination was issued by which the respondents' services were terminated with effect from 15-3-2005 and the reasons mentioned in the termination order are not correct and the same is mala fide and contrary to the Standing Orders, 1968 whereas the appellant-Company was earning profit continuously and last financial year ended on 30-6-2004 the profit bonus was paid to the workers hence the question of any loss does not arise. The impugned order of termination of the respondents was not in consonance with well-known principle of "Last Come First Go". The respondents/applicants had filed afore-said applications/grievance petitions before the Labour Court with the following prayer:- "(A) Allow the application.
(B) Hold that the lay off for the period of 1-2-2005 to 14-3-2005 is illegal and the applicants are entitled for full wages during the period.
(C) Declare and to hold that the termination orders dated 10-3-2005 are illegal.
(D) Direct the respondent-Company to reinstate the applicants in service with full back-benefits.
(E) Any other relief under the circumstances of the case."
' Appellant-Company filed replies to the applications controverting the allegations levelled in the grievance petitions/ applications along with preliminary objection that grievance petitions/applications are not maintainable as the same were filed by the respondents under section 46 of Industrial. Relations Ordinance, 2002 read with section 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 whereas the services of the respondents/applicants were terminated under section 12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by giving them letter of termination with one month's notice pay. The learned Labour Court out of the pleadings of the parties framed the following issues:--
(1) Whether the lay off of the workers in the factory and thereafter the termination of the applicants were illegal?
(2) Whether the applicants are entitled for the relief as claimed?
(3) Relief?
' The learned Labour Court after completing the legal formalities such as recording evidence of the parties disposed of the grievance petitions by holding that the lay off of the workers commenced with effect from 13-1-2005 to 14-3-2005 was not illegal and the workers including the applicants were laid off in accordance with law and that they have rightly been terminated from their services, hence the applicants are not entitled for any relief as claimed. Respondents being aggrieved filed Labour Appeals Nos.27 to 49 of 2006 under section 48 of IRO, 2002 in the High Court of Balochistan.
The learned High Court accepted the appeals of the respondents vide impugned judgment dated 15-11-2007. The appellant/petitioner being aggrieved filed C.Ps. Nos.6-Q to 28-Q of 2007 before this Court which were fixed on 23-1-2008 and leave was granted in the following terms:- "After hearing learned counsel for the petitioner, we find that case for grant of leave to appeal is made out to consider, inter alia, the following questions:--
(1) Whether the respondents' termination was simpliciter termination provided for under Standing Order 12(1) or it was a retrenchment or downsizing under the provisions of Standing Order 13(2)?
(2) Whether the learned Judge in Chambers of the High Court of Balochistan, has failed to appreciate that on account of strong international competition, the petitioner-Company, having suffered severe financial losses, had to stop production of their main product i,e, the Staple Fiber thereby resorting to lay off in the Factory and the action so taken, was justified in the circumstances.
' Leave to appeal is accordingly granted in all these petitions. Operation of the impugned order shall remain suspended till further order."
3. The learned counsel for the appellant submits as under:--
(i) That the learned High Court had erred in law to reverse the finding of fact recorded by the Labour Court without adverting to the reasoning of the Labour Court.
(ii)The appellant had terminated the services of the respondents under section 12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, learned High Court was not justified to reverse the findings of the learned Labour Court by holding that respondents were laid off under section 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968
(iii) The learned High Court had erred in law without adverting to the real controversy between the parties as the services of the respondents had been terminated under section 12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by giving them letter of simpliciter termination with one month notice pay.
(iv)The learned High Court has also failed to appreciate that the said termination is simpliciter termination provided under section 12(1) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by fulfilling the requirements under section 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is not retrenchment or downsizing made under the provisions of section 13(2) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(v)The learned High Court, has accepted appeals of the respondents without appreciating the important fact that the appellant-Company was suffering from severe financial losses.
(vi)The learned High Court failed to appreciate that there is strong international competition, as the finished product namely staple fibers of China and Korea are low-priced than the appellant- Company's staple fiber and due to very high cost inputs, it had become difficult for the appellant- Company to survive.
4. We have given our anxious consideration to the contentions of the learned counsel of the appellants and perused the record. The contentions which are raised before us are exactly the same which were raised by the appellant before the High Court. The learned High Court had rejected the same after judicial application of mind. The learned High Court had reappraised the evidence on record and reversed the finding of the Labour Court with cogent reasons regarding financial losses of the appellant-Company as well as application of Standing Order 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The operative part of the impugned judgment is reproduced as under:-- "The Company did not produce any record about production of staple fibre, its demand and available stock. So much so that there is no evidence to show that the production of staple fibre was stopped. Furthermore, the Company did not produce the annual audit report to prove that the company was facing financial losses on account of lack of demand of staple fibre. The copies of statements R/1 and R/2 produced by the company stating the profit and loss account (unaudited) for 9 months period ending on 31-3-2005 does not support the plea of company. The said statement does not indicate that any decline in the income was on account of lack of demand of staple fibre. In such view of the matter the ground on which the applicants/workers were removed could not be sustained by the company. The findings of the learned Labour Court/trial Court in said regard cannot be agreed as no evidence worth reliance was produced by the company to prove that the company was facing financial loss on account of lack of demand of staple fibre to justify reorganization of the company by reducing manpower.
' Adverting to the other limbs of the matter, the plea of the applicants/workers that they being senior workers were removed and junior workers were retained was not disputed by the company and it was pleaded that the removal of the applicants was under Standing Order 12(1) and not under Standing Order 13. Admittedly the company has not removed/discharged all the employees working in the factory and there is no evidence that section of the factory was closed or that employees of a particular group performing specified nature of work were removed. The evidence rather showed that some of the employees were picked and their services were terminated without taking into consideration the seniority of the workers being removed and workers whose services were retained. The evidence available on the record reflects that the applicants were senior while junior workers performing similar nature of work were retained. In such eventuality provisions of Standing Orders 12(1) could not be made applicable which in my view could be applied when all the employees of a particular section or all the employees performing work of particular nature were to be removed but not in the case where some of the employees were removed and other employees performing similar nature of work were retained as in such circumstances the provision of Standing Order 13 was applicable, limiting the choice of the employer to choose and pick the workers for their removal from service, as under Standing Order 13, where any workman is to be retrenched and he belongs to a particular category of workman, the employer shall be retrenched the workman who is the last person employed in the category. In such view of the matter termination of services of the applicants retaining juniors workers of same category is found to be in violation of provisions of Standing Order 13.
' In such view of what has been discussed hereinabove it is held that the termination of services of the applicants/workers on ground of reorganization was not justified as the respondents/ workers on ground of reorganization was not justified as the respondent-Company failed to prove the ground for reorganization while the removal was also not within purview of Standing Orders 12(1) as the circumstances of the case attracted provisions of Standing Order 13 and the respondent- Company violated the principle laid by tending Order 13 by removing the senior workers and retaining junior workers of same category. Hence the order dated 10-3-2005 of the respondent- Company about termination of service of the applicants/workers is set aside. The applicants/workers specifically pleaded that after termination of their services they were not employed elsewhere and their plea could not be proved to be innocent, hence the applicants/workers are found to be entitled for back-benefits, accordingly the applicants are reinstated with back-benefits."
' We have re-examined the evidence on record in the interest of justice and fair play. In case fact and circumstances of the cases are put in a juxtaposition, then it is crystal clear that the respondents' services were terminated on the purported ground under Order 12(1) of West Pakistan Standing Orders Ordinance, which is merely a device adopted by the appellant Messrs Pakistan Synthetic Limited to avoid holding of retrenchment in terms of Order 12(3) and Order 13 of the Standing Order. Therefore, the same cannot be construed as termination simpliciter within the purview of Standing Order No,12(1). In the light of the legal position as explained above, it seems to us that the learned Judge in the. High Court was right in holding that as there had been a disregard of the principle contained in Standing Order No,13 in regard to the retrenchment of the employees, the orders made by the appellant. It is also settled-law that it is an unfettered right of an employer to order his affairs for the proper running of his establishment as long as the same is in conformity with Standing Order 12(3) and Order 13 of the Standing Order. The learned High Court had given finding of fact qua financial position of the appellant, therefore, action of the appellant is without lawful authority. It is also settled-law that manner of exercising power, I in violation of law, is also termed as mala fide as law laid down by this C Court in Agha Shorish Kashmiri's case PLD 1969 SC
14. The mode provided by law is to be strictly followed under the mandatory provisions of Standing Order 12(3) and Order 13 of the Standing Order. It is also settled law by now that retrenchment must be in D good faith/bona fide and not to victimize employees or as a cloak to get rid of employees, therefore, learned High Court was justified to go into the question to see bona fides of the retrenchment. Learned High Court had given finding of fact that the termination in question was mala fide or in colourable exercise of power, therefore, action was not taken by the appellant due to measure of economy as stated by the appellant.
5. It is settled proposition of law that this Court would not normally go beyond a finding of fact recorded by the learned High Court, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally if the finding could be demonstrated to be physically impossible. This being the practice and rule of the Court in civil appeals, the burden lies rather heavily on the appellant to show that the findings recorded by the High Court are not sustainable on the record and should be interfered with by us. It is also settled principle of law that this Court while exercising power under Article 185(3) of the Constitution has no jurisdiction to substitute its own finding in place of finding of the learned High Court. Keeping in view the aforesaid principle laid down by this Court we have re-examined/reappraised the evidence on record and we do not find any infirmity or illegality in the impugned judgment. The learned counsel for the appellant has failed to point out any piece of evidence which was misread by the learned High Court while recording finding of fact against the appellants. The learned High Court had given finding of fact on the controversy in question after reappraisal of the evidence with cogent reasons keeping in view the principle laid down by this Court in various pronouncements as evident from the finding of fact recorded by the High Court reproduced hereinabove. The learned counsel of the appellant has also failed to raise any substantial question of law of public importance. Even otherwise constitutional jurisdiction under Article 185(3) is discretionary in character keeping in view the circumstances of the cases in hand. We are not inclined to exercise our discretion in favour of the appellant as law laid down by this Court in various pronouncements. See Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 F SCMR 1462.
6. In view of what has been discussed above we do not find any merit in these appeals, therefore the same are dismissed with no order as to costs.