' SHAHID ANWAR BAJWA, J.--- Respondent No,2 filed grievance petition before Sindh Labour Court No,5, Karachi. In her petition under section 25-A of the Industrial Relations Ordinance, 1969 she stated that she was designated as Pedicurist but she was a permanent workman and her employment was terminated vide order dated 11-3-2002. She stated that her employment was terminated on account of her trade union activities. Learned Labour Court firstly held that plea of unfair labour practice cannot be raised before the Labour Court. Since objection was raised regarding grievance notice addressed to wrong person i,e, Manager under the Pakistan Hotels and Restaurants Act, it was observed by the Labour Court that since grievance notice was responded, therefore grievance notice was duly served. In view of its findings that unfair labour practice could not be adjudicated by Labour Court grievance petition was held not maintainable. It also held that reason given for termination of employment was valid reason. Consequently, grievance petition was dismissed vide judgment dated 22-12-2006. Being aggrieved by the order passed by the Labour Count an appeal was filed before this Court which appeal by operation of law was transferred to the Sindh Labour Appellate Tribunal and the appeal has been allowed vide decision dated 15-12-2010 and respondent No,2 was ordered to be reinstated in service with full back- benefits. Learned Appellate Tribunal held that Labour Court can adjudicate question of unfair practice and grievance petition was held to be maintainable. Learned Appellate Tribunal next held that appellant had been illegally removed from employment. This constitutional petition has been filed to challenge the order passed by Sindh Labour Appellate Tribunal.
2. Mr. Mehmood Abdul Ghani learned counsel for petitioners made the following submissions:---
(i) Respondent No,2 was not employed as workman. In this regard learned counsel extensively referred to cross-examination and affidavit-in-evidence.
(ii) Appeal filed in this Court was barred by time. Learned counsel pointed out that appeal was presented to office in time and office raised certain objections and those objections were complied with on 2-4-2007. Therefore, appeal was barred by time and, he relied upon Bank of Punjab v.
Punjab Labour Appellate Tribunal, Lahore and 2 others (2010 PLC 519), Lahore Development Authority v. Muhammad Rashid (1997 SCMR 1224), Ahmed Jan and others v. Qazi Azizul Haq and others (2009 SCMR 1022). That Sindh Labour Appellate Tribunal did not attend to this objection. He submitted that termination of employment of respondent No,2 has not been in consequence of an Industrial dispute and, therefore, she is not workman and cannot maintain grievance petition.
Learned counsel relied upon Messrs Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48), Coca Cola Mazdoor Union v. Registrar of Trade Unions and others (SBLR 2012 Sindh 522), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213), Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others (2001 SCMR 1928), Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited, Karachi and others (2008 SCMR 1377), Messrs Wah Industries Limited, Wah Cantt., District Rawalpindi v. Punjab Labour Appellate Tribunal Lahore and 2 others (1998 PLC 1) and Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited, Karachi and others (2008 PLC 355).
(iii) That company is Pakistan Services Limited and it has not been sued and, therefore, grievance petition is not maintainable. Learned counsel submitted that grievance notice was issued to the Manager/ employer registered under section 2(h) of the Pakistan Hotels and Restaurants Act, 1976 and, therefore, it was not valid grievance case. Learned counsel relied upon Allied Bank of Pakistan Limited through Attorneys 2 others v. Muhammad Bashir Khan (2006 PLC 39), (2001 PLC (C.S.) 768, Khushal Khan v. Muslim Commercial Bank Ltd. and other (2002 SCMR 943) and Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2007 PLC 64).
(iv) That judgment was not announced by the Tribunal in open Court. In this regard learned counsel relied upon Nisar Ahmed v. Presiding Officer, Punjab Labour and another (PLD 1976 Lahore 1162).
(v) He submitted that Sindh Labour Appellate Tribunal has passed judgment primarily on sympathetic consideration and it could not do that. He relied upon Messrs Dalmia Cement Ltd. v.
Dalmia Cement Factory Workers Union and others (PLD 1958 SC 153), Bannu Woollen Mills v.
Chairman, Industrial Court, West Pakistan, Lahore and others (1966 PLC 306), National and Grindlays Bank Limited, Chittagong and others. v. The East Pakistan Bank Employees' Union Chittagong and others (1961 PLC 1013) and Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and others (1960 PLC 80).
(vi) Learned counsel next submitted that evidence was to be recorded orally by the Labour Court but affidavits-in-evidence were filed. He relied upon Shandad Baloch and 3 others v. Pakistan Herald Company (2000 PLC 636), Sunil Masih v. Smt. Elizabeth Dalisy Masih and another (AIR 2001 Mad 226) and Rachapalli Abbulu and others v. State of A.P. (AIR 2002 SC 1805).
(vii) Learned counsel submitted that Collective Bargaining Agent raised industrial dispute regarding termination of employees including respondent No,2. He submitted that an employee should not be allowed to sail in two boats, therefore with raising of industrial dispute grievance petition had come to an end. He relied upon Popular Tabaco Co. Workers' Union v. Second Sindh Labour Court, Karachi and 2 others (1979 PLC 62) and Messrs International Laboratories Employees'
Union v. Sindh Labour Appellate Tribunal (PLD 1976 Karachi 292).
(viii) On the question of workman learned counsel relied upon Muhammad Sadiq v. Punjab Labour Court No,1, Lahore and another (PLD 1988 SC 633), Sabir Mehmud Bhatti v. Chairman, Sindh Labour Appellate Tribunal (2000 PLC 476), Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and others (1992 SCMR 2166) and Managing Director, Shahi Bottlers (Pvt.)
Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others (1993 SCMR 488). Learned counsel submitted that cross-examination has not been considered by Sindh Labour Appellate Tribunal. He relied upon Allay Yar v. General Manager, Railways Headquarters, Lahore and another (2001 SCMR 256), Ghulam Muhammad v. Government of the Punjab through Secretary, Industries, Lahore and others (2000 PLC 235) and Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589).
(ix) Learned counsel next submitted that the hotel was suffering financial loss and in this connection he referred to documents regarding financial position. He relied upon United Bank Limited through President v. Shamim Ahmed Khan and 41 others (PLD 1999 SC 990) and Muhammad Serajuddin v. Labour Appellate Tribunal and another (1983 PLC 1286).
(x) Learned counsel submitted that no special treatment can be given to office bearer in respect of performance of duty or application of labour laws. He relied upon Messrs Saifee Development Corporation Ltd. v. Inamur Rehman (1969 PLC 459), Hafiz Ghulam Yasin and 27 others v. Federation of Pakistan through Secretary Defence, Islamabad and another (2011 PLC (C.S.) 292), Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others (1990 PLC 213) and Sikandar Hayat v.
Sindh Labour Appellate Tribunal, Karachi and 2 others (1991 PLC 508).
(xi) Learned counsel submitted that since explicit reason regarding termination of employment has been given termination is valid. He relied upon Karnaphully Paper Mills Ltd. v. Karnaphully Paper Mills Workers' Union and others (1961 PLC 991); Messrs Shaheen Airport Services v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1992 PLC 284), Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others (1990 PLC 213).
(xii) Learned counsel submitted that Sindh Labour Appellate Tribunal observed that only personnel officer came in witness box and General Manager did not appear in person. Learned counsel submitted that it is discretion of a company to decide as to who is to be produced as his witness.
He relied upon Lal Khan v. Punjab Labour Appellate Tribunal and another (1995 SCMR 1758).
Regarding back benefits learned counsel relied upon Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others (2004 PLC (C.S.) 1151), Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 PLC (C.S.) 1083) and Akir Qamar and another v. General Manager (Administration) Passco and others (2007 PLC (C.S.) 534).
(xiii) And lastly learned counsel submitted that Labour Court can grant compensation and in this regard he relied upon Balochistan Engineering Works Ltd. v. Abdul Hameed and others (2007 SCMR (1160=2007 PLC 426)
3. Mr. Ch. Abdul Latif Saghar learned counsel for respondent No,2 submitted that certified copy was delivered on 16-1-2007 and appeal was filed 12-2-2007 and objections raised were merely formal.
Learned counsel submitted that Health Club is still in existence and such record was not produced in Court. Regarding industrial dispute learned counsel submitted that respondent No,2 was not a party. He submitted that she was a workman. Leaned counsel submitted that grievance notice was properly addressed. Regarding back-benefits, learned counsel submitted burden was duly shifted upon employer. Learned counsel relied upon Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087).
4. Mr. Mehmood Abdul Ghani while exercising his right of reply referred to balance sheet available at Page 123 and submitted that giving of bonus is immaterial. It has to be seen whether company was suffering a loss or not.
5. We have considered submissions made by learned counsel for the parties and have also gone through record as well as case cited at the bar.
6. Mr. Mehmood. Abdul Ghani's contention that respondent No,2 was not employed as workman was of a two-fold contention. His first contention was by reference to definition of workman given in section 2(xxix) of the Industrial Relations Act, 2008. Said Section is in the following words: "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire of reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
7. It was contended by the learned counsel that since employment of respondent No,2 has not been terminated in consequence of an industrial dispute neither her termination has led to an industrial dispute she was after termination, no longer worker for the purpose of Industrial Relations Act, 2008 and therefore she is not entitled to maintain this grievance petition. Leaned counsel relied upon Messrs Coca Cola Beverage's case (supra). In this case after referring to extensive case-law including Muhammad Saleem, Board of Governors Aitchison College and Muhammad Nawaz Bhatti cases (supra) and many other, the following position was summarized:--- "24. To summarize the above discussion:
(i) A worker who has been dismissed, discharged, retrenched, terminated or otherwise removed from employment no longer falls in the definition of workman except as stated herein below;
(ii) If such dismissal etc., has taken place in consequence of industrial dispute or has led to an industrial dispute then such person is included in the definition of workman;
(iii) but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relation Act, 2008;
(iv) Such dismissed etc, workman comes to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue any provision contained in the I.R.A.; M Such Person is therefore, not a workman and is not entitled to participate or vote in any referendum or balloting under section 24;
(vi) He cannot participate in any election of the Union except when he falls within the 25% of outsiders who are permitted to be office-bearers of the union. Such outsides are not permitted to be member of the Union. Therefore they can become office-bearers without being members.
Since they are not members they cannot vote in any such election.
(vii) Pendency of grievance petition in a Labour Court or proceedings before N. I.R.C. does not affect status of such a person.
(viii) However, if interim order has been passed by a Court of law and the employer has acquiesced in the order the employer cannot challenge participation by such a workman in such proceedings."
8. The Supreme Court in Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others (1998 PLC 172) conclusively laid down law in the following words: "9-A. The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of section 25-A of the Ordinance. The words "and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redressal of such grievance the procedural provisions of section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3). However, the Legislature has provided for a different definition of the term "workman" in clause (i) of section 2 of the Standing Orders Ordinance."
9. Therefore, if the petitioner is workman as defined in section 2(i) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, even if IRA of 2008 is not applicable to the establishment where respondent No,2 was employed, even if IRA is applicable to that establishment and even if she is not workman for the purpose of definition as given in Industrial Relations Act, 2008 she is entitled to maintain grievance petition because her fight flows out of Standing Order 12(3) which order itself provides for maintenance of grievance petition.
10. Second limb of arguments of Mr. Ghani was with respect of definition of workman given in section 2(i) of Standing Orders Ordinance, 1968 which is in the following words:--- 'Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
11. Therefore, it has to be seen whether petitioner was doing any manual or clerical work, be it skilled or unskilled. In her grievance petition, petitioner stated that she was workman as per Standing Order Ordinance, 1968. In her affidavit-in-evidence she stated that "I used to attend ladies customers/guests alone to meet their whole demands just as massaging/pedicuring them, to provide the towels to provide them clothes and also provide assistance/held in changing of such clothes during exercise carried out in the club and also provide/supply them material for making their baths and also used to cleaning/moping the floor, bathroom besides any other duties of such like nature during such ladies customers/guests hours from 10-00 a.m. to 3-00 p.m. and to deliver back used/dirty towels to laundry for washing and also used to attend room where whenever I was called/ordered and the other work as directed by my superior. My whole duty was manual." In her cross-examination she stated that "it is correct that at the time of termination I was pedicurist. Voluntarily says that in addition to my duty I was also performing duty of messtur (massager). It is correct to suggest that pedicurist is supervisory job. It is correct that today I have informed the Court during cross-examination that I was also massager. It is correct that I have given my job description in Para 7 of my affidavit in evidence. It is correct that I have not disclosed details of duty as per 7 in my grievance notice or grievance application. Voluntarily says that when respondents mentioned in the written statement that my job was supervisory therefore details of my duties were given by me in affidavit in evidence. In affidavit in evidence of employer it was stated as under:-- "The nature of her duties were not essentially of manual or clerical for it involved initiative/imagination which includes specialized and artistic skill to do the pedicuring job of female customers. Not every female can perform the work of pedicuring."
12. Reading of the above indicates that firstly petitioner was not employed in supervisory capacity and secondly she was working in the health club, performing various duties which she mentioned in her affidavit in evidence. While filing affidavit in evidence or while leading evidence establishment did not even state that the things stated by her were not required to be done by her in health club or if they were required to be done in health club then someone else was doing the same. Therefore respondent No,2, by stating her duties, and with no specific denial by the employer successfully established the case that her duties were manual and clerical in nature and, therefore, she was workman for the purpose of Standing Orders Ordinance, 1968. Learned counsel for petitioners relied upon Muhammad Sadiq's case (supra). Petitioner was employed as confectionary cook. Both the Labour Court and Labour Appellate Tribunal concurrently found that the petitioner was workman but Single 'Judge of the High Court disagreed. Supreme Court observed that natures of the duty at the time of termination were of supervisory character and not that of workman. No supervisory powers or exercise of supervisory functions have been established in the present case. Learned counsel next relied upon Sabir Mehmud Bhatti's case (supra). Said Sabir was employed as typist/storekeeper in hotel and was then promoted and designated as Assistant Purchase Manager. Facts are clearly distinguishable. Learned counsel next relied upon Fazal Beg's case (supra). Supreme Court observed that it would appear to be travesty of thought to say that a Jamadar drawing about 4 or 5 hundred rupees per month at the relevant time was not a workman. Appeal of the employer was dismissed. Learned counsel next relied upon Managing Director, Shahi Bottlers (Pvt.) Limited's case (supra) which is of a Public Relations Officer and is, therefore, distinguishable. Learned counsel relied upon Allay Yar's case (supra) where it was observed that appellate forum is required to examine each and every aspect of matter. Next case relied upon by the learned counsel was of Ghulam Muhammad's case (supra) where scope of powers of the Labour Court and Labour Appellate Tribunal were held to be co-extensive. Last case relied upon by the learned counsel for petitioners is Gul Rehman's case (supra) which is in respect of power under section 115, C.P.C. Above case-law clearly is distinguishable and the above discussion on evidence produced before the Labour Court below clearly indicates that the respondent No,2 was employed as workman.
13. Next contention of learned counsel for petitioners was that appeal was filed on 10-2-2007 whereas impugned order challenged in appeal was passed on 22-12-2006 and period of 30 days is prescribed in section 54(3) of the Industrial Relations Act, 2008 for filing of appeal. This aspect was successfully met by Mr. Abdul Latif Saghar learned counsel for respondent No,2 by pointing out that certified copy was delivered on 16-1-2007. When confronted with this position learned counsel submitted that though appeal was filed within time but office objections were raised and those objections were complied with on 2-4- 2007 and, therefore, appeal was barred by time. Learned counsel relied upon Bank of Punjab's case (supra). In the reported case appeal was returned by the office of High Court because of objections and was re-filed after period of limitation was over.
Learned counsel next relied upon Lahore Development Authority v. Muhammad Rashid's case (supra). In this case also appeal was returned for removing objections and was re-filed after period of limitation was over. Learned counsel relied upon Ahmed Jan's case (supra). In this case an application for review was filed beyond 30 days therefore same was dismissed. Supreme Court did not interfere.
14. A perusal of third of above three cases indicates that it was review and not appeal with question of limitation. As far as first two cases are concerned, there memo. of appeal was returned by the High Court and then it was re-filed after removing objection. In the present case memo. of appeal was never returned by the High Court and, therefore, case is distinguishable. Since the appeal was filed within one month of the certified copies having been provided appeal was not barred by time.
Consequently, this contention by the learned counsel for petitioner is overruled.
15. Next contention of learned counsel for petitioners was that grievance notice was addressed to Manager under section 2(h) of the Pakistan Hotels and Restaurants Act, 1976 and, therefore, it was not a valid grievance notice. Learned counsel relied upon Muhammad Bashir Khan's case (supra).
This case is of employee of bank. It was held that grievance notice served on appellate authority and not upon the punishment authority would not valid grievance notice. Same was held by the Supreme Court in Khushal Khan's case (supra). Learned counsel relied upon Almas Ahmed Fiaz's case (supra), this case is totally on different point. In the present case grievance notice as above was issued to Manager/employer (registered under section 2(h) of the Pakistan Hotels and Restaurants Act, 1976), Pearl Continental Hotel, Karachi. Grievance notice was replied by General Manager Pearl Continental Hotel, Karachi. Letter of termination was also issued by the General Manager Pearl Continental Hotel, Karachi. Since grievance notice was replied by the competent authority i,e, incharge who terminated employment of the respondent No,2 in first place, objection regarding non-service of the grievance notice on the terminating authority becomes, in view of this particular fact, hyper technical. It is consequently repelled.
16. Learned counsel next submitted that judgment was not announced by the Labour Appellate Tribunal in open Court and, therefore; was not a valid judgment. Learned counsel relied upon Nisar Ahmed's case (supra) where it was observed as under:--- "10. An examination of the above provisions of law and the judgments would go to show that where a law provides for writing, announcing and signing a judgment, all that must be done in that way, in order to give validity to the judgment. All official acts are to be done in writing and more-so in case of judgments and orders of Courts and Tribunals, particularly when there are specific provisions as to how they are to be written and delivered. There are separate provisions for altering or amending judgment after it has been signed. These provisions make it absolutely clear that after a judgment has been announced and signed, a Judge cannot alter or review it except in accordance with law. The Court is then functus officio as the previous proceedings stand concluded. These restrictions, however cannot apply to an oral announcement as it is not in a crystallized form. It is to be written out and it can be changed, amended or modified any number of times before it is actually finalized.
11. The next contention raised by the learned counsel for respondent No,2 was that as, in any case, the Labour Court did sign or did write and sign a judgment fulfilling all the requirements, the same can now be made operative and effective. The subsequent act of the Labour Court, however, would also suffer from the same shortcoming, as the written judgment was neither publicly announced nor a notice of the same given to the parties."
17. It may be noticed that it was alleged in that case that judgment was announced orally without writing or without signing it. In the present case judgment of Tribunal states date of decision as 15- 12-2010 and the same date is stated as the date of announcement. It is true that in Ground 'A' of this petition it is stated that judgment was announced orally and without any written order.
Learned counsel for respondent No,2 has contended that judgment was written and signed on same date when it was announced. In view of what is written at the 'end of judgment that it was announced on the date which is stated to be date of judgment, we do not think any interference is called with impugned order on this count.
18. Learned counsel for petitioners next submitted that Sindh Labour Appellate Tribunal passed judgment on sympathetic grounds. Learned counsel relied upon the cases of Messrs Dalmia Cement Ltd., Bannu Woollen Mills, National and Grindlays Bank Limited, and Sui Gas Transmission Co. Ltd. (supra). There is no cavil with proposition advanced by the learned counsel that Labour Court or Labour Appellate Tribunal are required to decide lis before them on merits and in accordance with law and not to act as benevolent despots. In the present case learned' Sindh Labour Appellate Tribunal has scrutinized evidence and grounds for termination and has thereafter decided the matter. Therefore, in context, objection is not relevant.
19. Learned counsel next submitted that no oral evidence was recorded by the Labour Court: affidavits in evidence were filed by the parties and thereafter cross-examinations were conducted on the basis of those affidavits in evidence. Learned counsel relied upon judgment by the Sindh Labour Appellate Tribunal in Shandad Baloch's case (supra). It was a revision application by which permission to substitute affidavit in evidence by filing new one was sought which was turned down by the Labour Court on account of lack of sufficient reason. Learned Sindh Labour Appellate Tribunal observed as under:---
6. 'There is no provision in the Industrial Relations Ordinance, 1969 which makes a provision of accepting evidence of the parties by means of affidavit. The provisions of Civil Procedure Code, 1908 have been made applicable under section 36(2) of the I.R.O., 1969 specifically mentioning the powers "of enforcing the attendance of any person and examining him on oath." There is no provision in the Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1969 and Standing Orders Ordinance, 1968, which provides the acceptance of the affidavit-in-evidence in the matters of grievance application under section 25-A of the I.R.O., 1969 and the standing Orders Ordinance, 1968.
20. Learned counsel also relied upon Rachapalli Abbulu's case (supra). It was a case relating to criminal trial and is, therefore, distinguishable. Learned counsel next relied upon Sunil Masih's case (supra). It was case relating to charge of adultery. Therefore, it is also distinguishable.
21. Section 53(2) of the Industrial Relations Act, 2008 provides as under:--- "(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of---
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects; and
(c) issuing commissions for the examination of witnesses or documents."
22. A reading of above indicates that the Labour Court has necessary power for enforcing attendance of any person and examining him on oath. Under C.P.C. there are two provisions, in this regard one is Order XVIII Rule 4 which states that evidence of witness shall be taken orally in open Court in person and under the personal direction and superintendence of Judge. On the other hand, Order XIX, Rule 1 provided that Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that affidavit of any witness may be read at the time of hearing on such conditions as the Court thinks reasonable. Thereafter it is provided that if any party desires that such witness i,e, one who has produced affidavit can be cross-examined.
In present case affidavits in evidence were filed and both the counsel cross-examined other party without any objection to the affidavits in evidence. When they appeared for cross-examination affidavit was recalled and reaffirmed. In presence of such positions objection by the learned counsel loses it force.
23. Learned counsel next submitted that Collective Bargaining Agent submitted industrial dispute in which it raised industrial dispute regarding termination of employment of employees including respondent No,2. Contention of learned counsel was that an employee should not be at liberty to sail in two boats. In Popular Tobacco Co. Workers' Union's case (supra) it was observed that if a workman seeks to avail two remedies he cannot be allowed to raise industrial dispute at the same time and file grievance petition under section 25-A. It may be pointed out that order was passed in 1974 and for reaching its conclusion Division Bench relied upon Messrs International Laboratories Employees' Union's case (supra). Later one was also petition of 1974 decided in September, 1975.
Definition of Industrial Dispute given in section 2(xiii) of the Industrial Relations in the following words:--- "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Act, or any award or settlement for the time being in force; (underlining added)
'The underlined part was added in 1974. Therefore in law termination in case where Standing Order 12(3) is applicable cannot be subject of industrial dispute. Therefore, contention of learned counsel is without any substance.
24. In termination order following are stated to be reasons for termination:--- "You are employed as Pedicurist in the Health Club. Due to decline in the customers related to your expertise, the hotel has decided to abolish this post, as a part of overall reorganization and achieving viability of operations. In view thereof, and for the aforesaid reasons, your services are hereby terminated w,e,f, March 12, 2002 (after close of working. hours) and you stand relieved as from the aforesaid date and time, on payment of one month's salary in lieu of notice.
' You are advised to collect your legal dues on any working day from Accounts Department after completing necessary formalities."
25. Reason given is three folds; firstly, there is decline in customers related to expertise of the, respondent No,2; secondly in view of re organization the post is abolished and thirdly additional reason is that it was to make operations viable. Mr.Ghani referred to firstly published accounts of Pakistan Services Limited, the company which owns Pearl Continental Hotels. Accounts indicates that during the year 2002 there was profit after tax of Rs,84.891 million and in 2003 there was profit of 32.889 million, therefore, as far as company is concerned, it has profitable operation. However, then Mr. Ghani also referred to profit and loss account of Karachi Hotel which according to him suffer loss of Rs,56 million in 2002. We cannot place much reliance either on the account of company or on the account made in respect of Karachi Hotel. Firstly for the reason that Auditor who audited the account and Finance Manager were not produced as witnesses in respect of company accounts. As far as accounts for Karachi Hotel operation are concerned, no document whatsoever has been placed on record as to on what bases account were separated and no auditor has been produced in respect of these accounts also. Reliance was placed by learned counsel on United Bank Limited through President v. Shamim Ahmed Khan's case (supra). It is a case of retrenchment of person for reason that bank was suffering loss. It is not relevant to of petitioner because, as observed above, auditor has not been produced, base of separation of accounts (considering fact that financial expenses are in respect of whole company, management expenses and many other factors relating to accounts and separation thereof have neither been placed on record nor proved through cogent evidence.
26. Learned counsel is perfectly correct in arguing that it is exclusively right of employer to decide which way of conduct of his business. He is right to re-organize his business. This principle has been upheld by the Supreme Court in Shamim Ahmed Khan's case (supra) and it was enunciated in Parry & Co.v. Judge Second I.T., Calcutta (AIR 1970 SC 1334). Even if organization is making profit it does not mean that organization cannot re-organize its operation to achieve better efficiency of working. Retrenchment of workers can be for a variety of the reasons, one of them being of suffering of loss but even if organization is profitable it can still resort to retrenchment for bona fide reasons of re-organization.
27. If is to be seen whether job has been abolished or not. Distinctions by the Labour Appellate Tribunal between job and post is not relevant in labour matters. It may be relevant in service matters where elaborate procedures exist in service laws for creation of its but such distinctions do not occur in the field of labour and, therefore, these distinctions by learned Labour Appellate Tribunal do not appear to be warranted in the circumstances.
28. We are also not impressed by conclusion arrived at by the Labour Court that it cannot deal with question of unfair labour practice. Such power is specifically provided for the Labour Court in section 25(13) of the Industrial Relations Act, 2008. However, since Labour Appellate Tribunal has not accepted this logic of Labour Court we need not say anything further in this regard.
29. Whether job was actually abolished or not is the key question. Relevant part from the evidence led by the employer is as under:--- "9. That due to disturbed international situation and decline in Hotel business due to lack of travelling and tourism and more specifically pursuant to 11th September, 2001 incidents in USA and subsequent developments and in case of the applicant particularly as she was employed as Pedicurist in the Health Club, there has been constant decline in the customers availing this facility in the Health Club. That from July 2001 to. March 2002 not a single customer has visited the Hotel for availing Pedicuring services. Proof of this non-business area of the Health Club of the Hotel has been filed as Annexure-R/4, along with Preliminary Legal Objections and Reply Statement. The said decline in the female customers which related to the expertise of the applicant was explicitly stated in the letter of termination, which was issued to the applicant which has been filed as Annexure-A along with the petition. As part of overall re-organization and to achieve viability of operation in various spheres of business of the respondent Hotel, the respondent decided to altogether abolish the post of "Pedicurist". Pursuant to her termination no Pedicurist in the respondent Hotel has been admittedly employed. In regard to the decline in hotel business, un-rebutted report in the English Daily Nation dated 27-6-2002 has been filed as Annexure-R/5 along with Preliminary Legal Objections and Reply Statement, and further are filed as Annexure-R/6 (9 pages) which supports the principle position as regards decline in the overall Hotel business in Karachi."
' In the cross-examination it was stated as under:--- "It is correct that we have not produced register which bears record of the customers of club in this Court despite direction vol. says that the same has been displaced. It is correct that no report for displacement of Register was made the office. I see Ann. R/3, and say that the form filled in by applicant himself show her workmanship as massager, maniqurer and pedicurist. It is correct that the vouchers submitted along with the objection in place of register are irrelevant in this case. It is correct the ledger book AG 47A is always in triplicate. It is correct that out of three one voucher is kept by the office and second copy to the accounts office. I cannot say whether third copy is kept in personnel department. It is not in my knowledge that on the basis of these vouchers the customers are charged. Charges are mentioned in these vouchers."
30. Mr. Saghar referred to vouchers available at Pages 81 to 225 and pointed out that there are names of female guests also in these vouchers. The respondent No,2 was designated as Pedicurist and was working in the Health Club. She has stated her nature of duties in Para 7 of her affidavit in evidence (quoted above) which has not been rebutted through evidence by the employer. It is settled law that designation is not material but the work actually being done by person is relevant for deciding the issue. It is contended by the employer that occupancy by the foreign dropped due to clement law and order situation no one can dispute that. It is also in evidence that Health Club facility for female guests and Member of the club were continued. No list of female clubs with charge of duty has been placed on record to establish that respondent No,2 in terms of category was different from other female employees of Health Club. If she is treated in same category no evidence has been produced that she was junior most. In any case, it is a question of fact decided by the Labour Appellate Tribunal and High Court while exercising constitutional jurisdiction cannot settle disputed questions of fact.
31. Regarding back benefits Mr. Ghani argued at length and submitted that it is respondent No,2 who has been responsible for delay in disposal of grievance petition before the Labour Court because she has sought many adjournments. No document have been enclosed with the petition by the learned counsel to substantiate such contention and, therefore, obviously, it cannot be gone into in these proceedings.
32. Result of the above discussion is that this petition is dismissed.