ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal is directed against the judgment of learned District and Sessions Judge/1st Labour Court, Balochistan, Quetta dated 13-10-2009 wherein the grievance application of respondents was allowed.
2. It will be pertinent to mention here that initially this appeal hasbeen returned by this Tribunal by means of order dated 29-10-2010 wherein C.P. No,211 of 2010 filed before honorable High Court of Balochistan and the order impugned was suspended on 5-5-2010. On 27-3-2012 the Honorable High Court of Balochistan disposed of the said Constitution Petition in following term:--- "In view of the constitution of the Labour Appellate Tribunal, the present petition has become infructuous. Since the memo. Of the appeal has wrongly been returned to the petitioner by the appellate Tribunal, therefore the petitioner is directed to resubmit fresh memo of appeal with in the 15 (fifteen) days before the appellate Tribunal, and on receiving the same, the appellate Tribunal should provide an opportunity of hearing to both the parties and thereafter. To decide the appeal strictly in accordance with law and on its own merits within one month."
' After services of notices to the respondents on 9-5-2012 the learned counsel for appellant through an application requested that the name of respondents Nos.5, 12 to 14 and 17 be deleted on the ground that they patch .Up the matter with the appellants and requested for some time for negotiation with remaining respondents. Again on 31-5-2012 another request was made for adjournment for negotiation, with the respondent and ultimately on 5-6-2012 on failure of negotiation, arguments heard.
3. For disposal of this appeal the brief facts are that the respondents/applicants filed an application under section 41 of IRA 2008 before learned Labour Court with allegations that they were the permanent employee of different capacity of Messrs United Mineral Company. It was stated that they were performing their duties in Lease No,7 Sanjadi Quetta. Further stated that on 5- 3-2009, their services were terminated by means of a publication in Daily Sang. Being aggrieved grievance notices were issued and on refusal they approached learned Labour Court which was allowed by means of order impugned.
4. The learned counsel for appellant contended that the appellant closed the work on the said Mines temporarily by fulfilling the legal requirements. Secondly c mended that the respondent were not worker. Next contended that the closure of Mines was due to non-supply. Lastly contended that the grievance application was not entertainable before learned Labour Court for the reason that earlier the respondent approached NIRC and their petition is already pending.
5. The learned counsel for respondent on the other hand contended that it has not been proved that the Mines was closed temporarily. Secondly contended that respondents/applicants fully established their claim by producing Siraj Gul and Muhammad Zarin and their statements had not been rebutted by means of producing any evidence. Next submitted that the learned Labour Court with regard to the status of respondent decided issue No,2. Lastly contended that that Petition before NIRC is in respect of unfair Labour Practice which is a separate issue.
6. Taking into consideration the arguments of the learned counsel and carefully examined the available record in the light of Standing Order Ordinance, 1968. The learned counsel for appellant stated that whole establishment was closed therefore the respondents are not in title for reinstatement and in support of her contention referred a judgment passed by Sindh Labour Appellate Tribunal reported in 2001 PLC 312 wherein held, "S.Os.11-A, 12 and 14--- Closure of establishment.--- If whole establishment was closed down, employer was not under obligation to reinstate any employee or give him any benefit."
' This referred authority is not help for the reason that in referred authority for closing establishment permission had been granted by Labour Court. Secondly the appellant/petitioner approached the Labour Court and Appellate forum after so many years when the establishment was not in existence. Where as in the case in hand no such permission obtained from Labour Court and till the moment the establishment is in existence.
7. It is an admitted fact that the appellant has not obtained permission from Labour Court according to section 11-A which is reproduced as under:- "11-A closure of establishment.--- Notwithstanding anything contained in Standing Order 11, on employer shall terminate the employment of more than fifty percent of the workman or} close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics of civil commotion.
Explanation.--- 'Close down' in this Standing Order includes lay-off workman beyond fourteen days where such lay-off results in closure of an establishment but does not include lock---out declared, commenced or continued in accordance with the provisions of the Industrial Relations Ordinance, 1969 (XXIII) of 1969).
' With regard to reproduced section 11-A, a judgment reported in 2001 PLC 543 wherein held, S.O. 11- A ---Closing of establishment---Employer while taking various steps toward closing down the establishment even before moving an application under S.O. 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or there after could not close down the whole of the establishment without obtaining permission of the Labour Court as mandated by said S.O. 11-A in pre-emptory language---Words "Prior permission of the Labour Court in this behalf" in the S.O. 11-A had provided beyond any controversy that the permission of Labour Court must precede and not follow the closing down of the whole of the establishment."
' In the light of section 11-A of Standing Order Ordinance and above coated judgment the appellant/respondent violated the mandatory provisions.
8. The learned counsel for appellant highly objected that grievance application was not entertainable before learned Labour Court for reason that a petition of respondents/applicants was pending before NIRC. The jurisdiction of NIRC is with regard to unfair Labour practice meaning thereby that the proceedings before NIRC are criminal in nature whereas proceeding before learned Labour Court are that of civil. This situation/legal issue also discussed in above referred judgment wherein a petition was filed before NIRC against their termination by closing of establishment and the same was objected that jurisdiction of NIRC was confined with the cases of unfair Labour practice where the worker were victimized by employers due to Labour activities.
Therefore this objection is not sustainable.
9. The learned counsel contended that the learned Labour Court wrongly assumed that the respondents/applicants fall within the category of worker. Though the learned Labour Court while deciding Issue No,2 with regard to this objection discussed the same in detail but even otherwise from perusal of memo. Of appeal the job/designation of respondent mention before their name, it self-explain the position/status of respondent that they definitely fall with in the category of worker.
Furthermore neither any evidence brought by appellant in support of his plea nor any such suggestion put in cross-examination of witnesses of respondents/applicants, therefore this objection is ruled out.
10. It is very interesting that during pendency of grievance application before learned Labour Court some of applicants withdrawn their application on the ground that their matter has been solved by the appellant. Thereafter during the pendency of appeal the learned Counsel for appellant by means of application dated 9-5-2012 requested for deleting the names of respondents Nos.5, 12 to 14 and 17 on the ground that their grievance has been settled. The agreement between the appellant and above deleted respondents indicates that the company/appellant admitted their claim and the deleted respondents received their all dues and benefits. Further more during pendency of appeal 2/3 times the learned counsel for appellants requested for adjournment on the ground that the offer is also extendable to remaining respondents but the negotiation failed.
The objection of learned counsel for appellant that the respondent were employees of Jouisar. As stated in para supra that all act has been performed by appellant and nothing brought on record in support of their contention. Further more their termination were also published in Daily Jang on behalf of appellant. The learned counsel produced a clipping of Daily Mashriq dated 5-5-2012 wherein a requested was made on behalf of company/appellant for negotiation with the remaining respondents which negate the contention of the appellants.
11. In the light of law/authorities and discussion made here in above the order/judgment of the learned Labour Court is neither arbitrary nor perverse to invite interference by this Tribunal in appeal. Therefore order impugned dated 13-10-2009 passed by leaned District and Session Judge/1st Labour Court Balochistan Quetta is upheld. Consequently appeal is dismissed. In view of the circumstance of the case the parties are left to bear their own cost.
12. The copy of order along with original record of trail court be sent to trial court. Case after completion be consigned to record.