1. DECISION ' JUSTICE (RTD.) ALI MUHAMMAD BALOCH (MEMBER).---By this single decision, I proposed to dispose of the above 44 appeals filed by the workers individually, as the cause of action of all the workers/appellants are same, therefore, Appeal No,HYD-193/2010 (L.A.83/2006) Muhammed Hassan is being treated as leading case.
2. ' These appeals were filed by the workers whereby they impugned the order dated 3-8-2006 passed by the learned Presiding Officer, Sindh Labour Court No,VI at Hyderabad and by the said order the grievance applications were dismissed. Initially, these appeals were filed before the High Court of Sindh, Hyderabad Circuit in the year 2006 and after coming into existence of this Tribunal, all the above appeals were received from the High Court of Sindh, Hyderabad Circuit and allotted new numbers to the aforementioned appeals.
3. ' Brief facts of the case are that the appellants were seasonal employee of the respondent factory for the last many years and they worked for the season 2003-04 and thereafter they were relieved after payment of their dues. On the start of next season for 2004-05 when they were not recalled, they approached the respondents for their reemployment, but they were refused to join the duty by the respondent. It is the case of the appellants that when they approached the respondents for joining their duties they were given letters in which it was stated that they were the contractual workers and they should join duty in such capacity, but the workers had refused and they were further compelled to resign from service as well as union membership and then they would be given contractual service, here once again workers/appellants have declined to accept the same and they were not allowed to join their duties hence appellants have sent grievance notice and approached to the learned Labour Court with a prayer that the respondents be directed to allow them the status as a "seasonal" worker and they should be given back benefits with a direction to allow them to resume the duty. Respondents have contested the case before the learned Labour Court by filing their written statement wherein they pleaded that the appellants were not a seasonal workers but they were temporary workers deployed only for a season vide appointment letter such as annexure "R/1" with reply statement and it was specifically mentioned that their employment was only for current season and they would not be entitled for reemployment in subsequent crushing season and they were relieved after clearance of their dues in full and final settlement. An Award was passed by the learned Labour Court to employ the workers for a particular season and not for another work, hence according to the respondents the -petition was not maintainable. Further the appellants/workers had no right guaranteed under any law, settlement or award, which is infringed and even the termination of service of the appellants was not in connection with any industrial dispute. Appellants have filed their affidavit in evidence and they were cross-examined by the learned Counsel for the respondents and on behalf of the respondents Admn. Manager Misbahuzzaman filed his affidavit in evidence and he was also cross- examined by the learned Representative for the appellants. Learned Labour Court had framed the following issues for the judgment of the case:--- A. Whether the petition is not maintainable under the law?
4. B. Whether the petitioner is entitled to the relief claimed?
5. ' After hearing the parties, learned Labour Court had dismissed the grievance petitions of the appellants with the following observations:--- "The Hon'ble Supreme Court in a case PIA v. Chairman Appellate Tribunal reported as 1980 PLC 975, has held that Standing Order only entitles the retrenched workmen to an option to rejoin the service of their employer and this would not entitle the worker to claim the benefits of his previous service with the employer. The Standing Order has imposed an obligation on the employer to give an opportunity to the retrenched workman regardless of the question whether the employment thus offered is of a permanent nature or of a temporary nature. Hence under above settled principle of law if the employer and given the offer of contract service available with him the petitioner should have accepted the same as they were not entitled to claim their previous service as a right, emoluments and privilege on their re-employment. Thus the petitioner has no right to claim the previous privileges as his employment if any was a fresh appointment with fresh terms and conditions.
6. ' In view of above the petitioner failed to establish his right and entitlement claimed in this petition, hence petition is dismissed."
7. ' Ch. Muhammed Ashraf Khan learned Counsel for the appellants advanced his arguments that the learned Labour Court had acted contrary to the specific provisions of the Standing Orders Ordinance, 1968 and have declared both the provisos of Standing Order 14 as redundant by holding that the employer instead of employing the appellants as required under proviso to Standing Order 14 had rightly employed the contract workers. It is an admitted position that the respondent establishment is a seasonal factory under section 4 of the Factories Act, 1934 and it is also admitted fact and so held by the learned Labour Court that the appellants are/were seasonal workers. Ch. Ashraf learned counsel for the appellants has further submitted that in view of saving clause in the I.R.O., 2002 the proceedings, despite repeal of I.R.O., 1969 continues. Additionally these cases were not under the Standing Order 12(3) but under Standing Order 14 which does not speak about the provisions of I.R.O., 1969 or I.R.O., 2002 section 46 of I.R.O., 2002 entitles a workman to approach to the Labour Court for the enforcement of any right guaranteed to him under any law, award or settlement for the time being enforce, therefore, the appellants are competent for the enforcement of right guaranteed under the Standing Order 14 of the Standing Orders Ordinance, 1968. As regards the point of temporary appointment, the appellants were workmen employed in a seasonal factory, therefore, the authorities relating to temporary/permanent appointment are irrelevant. Labour Court can examine the vires of termination, no unfair labour practice is involved, therefore, if some of the appellants prior to approaching the learned Labour Court had approached the learned NIRC, the case before the learned Labour Court is not affected at all. So that appeals of the appellants may be allowed and respondents be directed to reinstate the appellants with continuity and consequential benefits. Ch. Muhammed Ashraf Khan learned counsel for the appellants had relied upon the case-laws such as 1993 CLC 1029, 1998 PLC 83, 1989 PLC 1013, 2001 SCM R 1935 and SBLR 2006 SC 95.
8. ' Mr. Mehmood Abdul Ghani learned counsel for the respondents advanced his arguments that it is now here alleged or established that their termination was in connection to an industrial dispute or that it has led to industrial dispute. At the close of 2003-04 seasons, appellants have cleared dues in full and final settlement and they have ceased to be aggrieved. Learned Labour Court in industrial dispute No,202/2002 31(2) of I.R.O., 2002 has given Award accepting the claim of the company against which no appeal was filed and management was allowed to employ temporary workers during crushing season. Crushing season of 2004-05 commenced on 1-11-2004, whereas, the grievance notice was allegedly served by the appellants on 13-12-2004 beyond the period of thirty days, therefore, the grievance applications which were filed before the learned Labour Court was time barred. Through Award given by the learned Labour Court under Demand No,15 learned Labour Court permitted the respondents to employ workers during the each crushing season with no obligations to employ the same person during the next season. In 1992 PLC 572 a Division Bench of the Hon'ble High Court of Sindh referring to 1990 PLC 325 have held that there is no specific provision in Industrial Relations Ordinance about filing cross-objections, but respondents would be entitled to support the order of the learned Labour Court even on grounds different from the one on which the learned Labour Court has based its decision. More or less the same view was taken by the Hon'ble Supreme Court of Pakistan in 2003 SCM R 74 wherein the Hon'ble Supreme Court interpreting Order XLI Rule 32, C.P.C. Have held that the respondent who does not file appeal or cross-objections against an order can nonetheless support and order on any of the grounds even if decided against him, on consider of justice in appeal. In view of these authoritative decisions of the Hon'ble Supreme Court of Pakistan and the Hon'ble High Court of Sindh, even the grievance petitions based on invalid grievance notices was not maintainable in the learned Labour Court and hence the appeals also be dismissed. The Hon'ble Supreme Court of Pakistan has also held that it is a basic principle that if a mandatory condition for exercise of jurisdiction by a Court is not fulfilled, then the entire proceedings which follow are illegal and suffers from want of jurisdiction. According to the Hon'ble Supreme Court of Pakistan, a Judge must wear all the laws of the country on the sleeves in his robe and failure of Counsel to properly advise would not be a complete excuse in the matter. In view of the above decisions of the Hon'ble apex Court the grievance petition itself was not maintainable and even on this ground all appeals are liable to be dismissed. Mr. Ghani has relied on the point of appointment on temporary basis. No right or lien on permanent basis, employment right to employ temporary recognized in the Standing Orders Ordinance, 1968 as 2001 SCM R 1935, 2000 SCM R 879. On the point of affidavit in evidence of applicant is defective. Now where details how much is in personal knowledge and how much based on information. Nor source of information given as 2000 PLC 636, 1996 CLC 1119. On closure of season they cease work. They are not retrenched hence not entitled to employment in next season as reported in 2009 PLC 83 and AIR 1996 SC 332. Another citation advanced by the learned counsel for the respondents i,e, 2009 PLC 83 - Ghulam Mustafa v. Shahmurad Sugar Mills, wherein the Hon'ble High Court of Sindh in the context of the claiming to be seasonal workers having worked, during the season of 2003-04 appellant had demanded that he should be given similar employment during the seasons 2004- 05 the Hon'ble Judges observed as under:- "It is not disputed that the appellant was the seasonal worker employed by the respondent for a particular season and he was employed for crushing seasons of 2003-04 and after the end of the season his serves were automatically terminated because of nature of his appointment. The appellant did not produce any evidence to show that prior to the crushing seasons of 2003-04 and after the aforesaid crushing season he was ever appointed by the respondent as a seasonal worker. In absence of any documentary evidence to show that he was continuously working in every crushing season in the mill of the respondent, the said assertion of the appellant appears to be false and fallacious averments without supporting from any independent document.
9. Admittedly, the appellant worked as seasonal worker for the crushing season of 2003-04 and his services were terminated after the end of the aforesaid seasons of 20th March 2003 thereafter the appellant served grievance notice under section 46(1) of the I.R.O. 2002 on 1st December, 2004 which shows that after 20 months from the date of termination of his earlier appointment he served notice on respondent belatedly. There is no sufficient reason or explanation put forward by him in support of his claim. Accordingly to section 46(1) of I.R.O., 2002, the grievance notice must be served by the employee on the employer, on his illegal termination from the service within thirty days from the date of termination of his service and after expiry for the said thirty days, if the requisite notice has not been served, the grievance of the worker could not be termed to be a lawful and the learned Labour Court has all powers to non-suit the worker who is guilty of limitation for service of the requisite notice. The learned Lower Court rightly observed that the grievance notice was served by the appellant on the respondent after 20 months from the date of his termination from his seasonal work and no illegality or irregularity has been pointed out by the learned counsel for the appellant in the finding of the learned Lower Court, which are based on appraisal of whole evidence available on record in arriving the said conclusion that the application filed by the appellant before the learned Lower Court was hopelessly time barred and I do not find any reason to interfere in the findings of the learned Labour Court."
10. ' Heard Ch. Muhammed Ashraf Khan learned counsel for the appellants and Mr. Mehmood Abdul Ghani learned Counsel for the respondent sugar mills. Both learned Counsel for the parties have also advanced their written arguments/synopsis.
11. ' I have thoroughly gone through the record and proceedings of the case as well as written arguments of the parties and have come to the following:--- It is not disputed that the respondent mill is exclusively engaged in manufacturing sugar which comes within the definition of "seasonal factory" under the provision of the Factories Act, 1934. It is not disputed that the appellant workers were employed for a particular season and at the end of season their services were terminated. So, there is no dispute regarding termination of service at the end of season which was made by issuing written order and after giving them legal emoluments, the only dispute is regarding right of re-employment which is given to a seasonal worker under Standing Order 14 of the Standing Orders Ordinance, 1968. It is the case of the workers that they were being employed for every season for many years, therefore, they are permanent workers. No doubt, under proviso of Standing Order 14 of the Ordinance, 1968 the seasonal workers who have been retrenched in one season and report for duty within ten days of resumption of the work in the immediate following season shall be given preference for re-employment by the employer, but it is a well settled law that expression word "reemployment" in the Standing Order 14 means fresh employment and not the reinstatement and previous service of the workers on re- employment cannot be taken into account for determining their right, emoluments and even privileges for their reemployment. The above views were expressed by the Hon'ble Supreme Court of Pakistan in the case of Pakistan International Airlines v. Chairman, Sindh Labour Appellate Tribunal, reported in 1980 PLC 975. The Hon'ble Supreme Court of Pakistan in this case repelled the contention that even if there is no vacancy or is a vacancy of temporary nature, the employer is under obligation to employ the retrenched workers on permanent post where they were at the time of retrenchment and held that it would be unjust and injustice and absurdity are, not to be lightly attributed to the legislation. In another case of Abdul Sattar and others v. Sui Northern Gas Pipe Line Limited, reported as 2001 SCM R 1935 the Hon'ble Supreme Court of Pakistan had observed that, "when job of the employee as worker was for specified work or season and on its completion his services were liable to be terminated than they cannot claim themselves to be permanent workers or workmen in terms of schedule appended to section 1(b) of the Standing Orders Ordinance, 1968."
12. Further, it is also held that, "where a nature of job against which a person was engaged was likely to be completed within period of nine months and if the work had taken more time after expiry of that period such worker would be a temporary worker."
13. Thus, in view of the above observations of the Hon'ble apex Court, the appellant workers are seasonal workers as temporary workers and they cannot claim reinstatement of their service as a matter of right. The terms and conditions of previous service could not be allowed to be counted as a right for re-employment. No doubt, the seasonal workers have been given right of preference for re-employment, but that right of re-employment is contigent upon employer proposing to take into employment any other new person or juniors to the appellants in the employment and such right is not absolute, but, depends upon the needs of the employer, because preference is only claimed when the employer propose to take into the employment any person then they have to give preference to the retrenched workers on vacancy. The above views were held in a case of lqbal Ahmed v. Second Sindh Labour Court and others reported in 1980 PLC 316 by the Hon'ble Division Bench of our High Court. In that case it was further observed that, "it would be indeed very unreasonable to compel an employer to employ all the retrenched workers even if he does not need them, be it by reason of domination of work or being engaged in a venture different from the earlier."
14. ' I have gone through the record and proceedings minutely and has noted that during cross- examinations of the workers before learned Labour Court they deposed as under:--- "We had filed a case before the NIRC. It is a fact that similar case is also filed in this Court and the same case was also filed before NIRC on the same ground.... We did not give grievance notice immediately after the end of season in which we worked last ... We did not file any case for recovery of full and final settlement ... We have not given the names of persons junior to us who are still working in the mills ... I have produced a letter of appointment of last season in which I had worked.
15. I have not produced any other letter of appointment along with my petition and affidavit and last letter is sufficient .... I have received dues at the end of season for which I was entitled as annexure R/2. It is correct that I had not given any grievance notice after receiving my dues annexure R/2... It is a fact that I did not approach mills management for my appointment before 15-10-2004 ... It is correct that I did not inform in writing to the management that I am member of union.
16. ' The case-laws as referred by the learned Counsel for the appellants are distinguishable.
17. With the above observations and discussions, I came to the conclusion that the learned Labour Court appraised the whole evidence available on record as well as the case-laws on the subject and after examining of the same came to the conclusion that the appellants were not entitled for re-employment and the said findings appears to be well-reasoned and the learned Counsel for the appellants has failed to point out any illegality to upset the findings of the learned Labour Court on factual aspect of the matter, therefore, I do not find any merit to interfere in the judgment passed by the learned Presiding Officer, Sindh Labour Court No,VI at Hyderabad, which is maintained and all the, above appeals are hereby dismissed.