' The appellant are a registered partnership firm engaged in the business of Dyeing and Printing cloth, On 31st August, 1978, the appellants issued an order, terminating the services of all the 10 employees in the Folding Department on the ground that it had been decided to close the folding and the packing sections on account of reduction of work in the said sections and the demand made by certain parties for stocks without their being packed. Eight of the employees of the folding section, which included the Vice-President, the General Secretary and a member of the Managing Committee of the Workers' Union in the appellants Mills. Challenged the orders of termination of their services before the learned Third Labour Court. The appellants resisted the grievance petitions of the said workmen, who are respondents in the present 8 appeals, on the ground that there had been continuous reduction of work in the folding Department resulting in persistent financial losses and consequently, there was no alternative but to close down the folding section. The learned Labour Court has held mainly on the view that it has taken of the enters in the record produced by the appellants, that the folding Department has continued all along to operate in the appellants Mills, and that the reasons given in the order of termintion of services of the respondents herein are false. It accordingly has directed the re-instatement in service of the respondents with full back benefits. Against this decision, the appellants have come up in appeal to this Tribunal.
2. 1 have heard Mr. Abdul Hafeez, who appeared for the appellants and Messrs All Amjad, Muhammad Shibli, Malik Noor Muhammad and Khalilur Rehman for the respondents. It was contended by Mr. Abdul Hafeez that the learned Labour Court's finding that the folding Department in the appellants mills had not been closed, is erroneous and completely against the weight of the evidence on the record. He further contended that the closure of the folding Department was a bona fide act and due to its uneconomic operation. On the other hand, the learned counsel and the representative of the respondents have strongly supported the impugned decision of the learned Labour Court and contended that the folding work has all along continued to be done in the appellants Mills and that the real reason for the termination of services of the respondents was not either the closing of the folding Department or its uneconomic operation, but was a pure act of victimization on the part of the appellants by reason of their opposition to the lawful trade union activities of the respondents.
3. The finding of the learned Labour Court that the folding Department in the appellants mills has throughout continued to be in existence and the folding work was all along being done in the appellants Mills is based upon the following circumstances which he has commented upon and noticed in the impugned decision :-
(a) The admission of Muhammad Ramzan, the Manager of the appellants Mills, that 3 persons were appointed in the folding department in October/November, 1979, on temporary basis, and his failure to produce the record showing the names of the persons working in the folding Department.
(b) Photo copies of the gate passes, dated 18th March, 1979, 21st March, 1979 and the packing slips, dated 20th March, 1979, 23rd March, 1979, indicating the folding and packing of the cloth in the appellants mills, and the inference to be drawn from the non-mention of these documents in the stocks registers produced by the appellants ;
(c) the admission of Muhammad Ramzan that the folding Department has not been permanently closed down ;
(d) the failure on the part of the appellants mills to produce documentary evidence in support of their contention that some of their customers do not like cloth to be folded at the appellants Mills ;
(e) the admitted non-mention in any other register/ledger of the debit entry of Rs, 50,000 in the ledger for the month of January, 1979, suggesting that perhaps the entry was fictitious ; the failure on the part of Muhammad Ramzan, Manager, to give the production capacity of the machines installed in the appellants Mills ;
(g) the non-mention of the names in the register of temporary workers for the year 1979-80 of Karim, Nathoo and Badruddin, who admittedly were employees and temporary workers of the appellants Mills ;
(h) the finding of pencil entries in the stock registers of the appellant. Mills as also the discrepancies in the said registers in regard to the purchase and sale of cloth for the months of February, 1978, and June, 1978 ; and (0 the non-mention in the cash register of the name of Broker Abdul Sattar, who has given evidence in support of the appellants that the folding Department in their establishment had been closed sometime in the year 1978 and that many of the customers of the appellants who used to place orders with the appellants through him had desired cloth to be delivered to them unfolded.
4. Now, the mere fact that the appellants had engaged 3 persons on temporary basis in October, 1979, for the purposes of doing the work of folding in their Mills, can neither be suggestive of the fact that the folding department had never been closed or that it was working continuously all along nor does it give right to the respondents for re-employment under Standing Order 14, as the employment of these 3 temporary workmen was after the expiry of one year of the termination of services of the respondents. It has frankly been admitted by the appellants' witness, Muhammad Ramzan, that as some of the parties had begun to place orders for dyeing and printing cloth with pucca and packed than, they had started limited folding work since October 1979, by engaging 3 workers only on temporary basis. The claim of the appellants regarding appointment of these 3 temporary workers since October, 1979, finds support from the appellant's register for attendance of temporary workers for the year 1979. The entries in that register for October, 1979, show that 3 persons by name, Ata Muhammad, Baboo and Khalid, were temporarily employed in the folding Department. This entry also eliminates the drawing of an adverse inference on account of the failure or in ability on the part of Muhammad Ramzan to give the names of these 3 temporary workmen. It may also be mentioned that initially it was not even the case of the respondents that the folding Department had not been closed down and had all along been working. No such assertion was made by the respondents in their various grievance notice or grievance petitions. In fact even in their amended grievance petitions, filed before the learned Labour Court on 1st October, 1979, all that is alleged by the respondents in this behalf was "that same job of folding which was carried out at the Respondent Establishment is now being carried by the respondent at a new place under the name and style of Messrs Sami & Co., just to defeat the object of Law and penalise the workers of folding Department of their Trade Union activities." This assertion in the amended grievance petition of the respondents thus is in complete conflict with the finding of the learned Labour Court and the subsequent stand taken by the respondents that the folding Department has all along been functioning in the appellant's establishment.
5. Coming next to the gate passes and packing slips, which appear as Exhs. R-1 to R-4 of the record of the learned Labour Court, it may be mentioned that they do not support the inference that any packing work was done by the appellants Mills, or in their oval establishment, The gate-passes show that the cloth was being sent to Moosa Lane, presumably for packing, as asserted by the appellants. It is an admitted position that prior to the year 1972, the work of folding was entrusted by the appellants to a Contractor, but subsequently, the employees of the Contractor in the folding departments were made direct employees of the appellants. As such, it was not unusual for the appellants, on the closure of the folding Department, to entrust any work of folding that might be required to be done, to a contractor. The mention of Moosa Lane in the gate-passes should be read in the light of the admitted position that the appellants establishment was originally located in Moosa Lane from where they had shifted to their present location in the SITE area. There thus was nothing unusual in the appellants sending the cloth for folding to Moosa Lane. The non-mention or reference in the stock registers of the appellants of the documents R/1 to R/4 is of no significance as the stock register contains no column for the showing of numbers, dates or other details of gate-passes or packing slips.
6. Undoubtedly, the appellants have failed to produce any documentary evidence in supports of their assertion that their customers were increasingly favouring delivery of unfolded cloth, but apart from the fact that it should not be lost sight of that such instructions are normally given orally or on the telephone, the assertion of the appellants in this behalf is supported by Broker, Abdul Sattar, who was examined by the appellants before the learned Labour Court. No doubt, he also was not able to produce any document showing that the persons for whom he had acted were not wanting to take delivery of cloth which was folded and that further the accounts books of the appellants do not contain his account or make mention of him, but this may be due to the fact that such business is transacted in cash and orally. In any case, the non-production of letters from the customers by the appellants or their witness does not falsify the claim of the appellants that the work in the folding department had diminished considerably, which contention will be discussed later.
7. 1 am also of the view that the learned Labour Court's suspicion and observations in regard to the so-called contradictions in the stock registers of the appellants are not warranted. In the first place, the pencil entries in the stock registers are only of the totals. This is not unusual in many firms as some times the totaling is inaccurate. As the other entries are all in ink, the pencil entries of totals are of no significance, for the figures of the entries can be totalled up independently of the pencil entries. Coming next to the entries in the stock registers for the months of February, 1978 and June, 1978, with which the learned Labour Court has found fault and considered them to be contradictory, it may be mentioned that except for the month of January, the entries for the other months in the stock registers do not show the opening balance but merely show the purchase and sale of cloth. It is true that entries in the stock register for the month of February, 1978, show the purchase of 69,680 yards of cloth and sale of 94,981 yards of cloth but the discrepancy is resolved by a reference to the entries in the stock register for the month of January, 1978, which show that in addition to the opening balance of 50,454 yards of cloth during the month of January, 1,56,134 yards of cloth were purchased, while only 98,383 yards of cloth were sold. This substantial cloth was left in balance at the close of the month of January, 1978. Similarly, whereas the entries in the stock register for the month of June while 73,560 yards of cloth were purchased during that month, a total of 80,054 1/2 yards of cloth were sold during this month, but this discrepancy is explained on looking to the entries in the stock register for the month of May 1978 which show considerable balance of cloth remaining with the appellants at the close of the month, keeping in view the purchases and sales during the month.
8. The learned Court has also drawn an adverse inference against the appellants by reason of no reference in any other account book of the debit entry of Rs, 50,000 appearing at page 1 of the appellants ledger for the year 1979. This entry appears in the account of Messrs Zeenat Corporation. It shows that on 25th January, 1979, a Cheque No, 615430 for Rs, 50,000 was issued to the said Corporation. The account with Messrs Habib Bank Ltd., appearing at the end of the ledger, shows that in the month of January, 1979 cheques of the total amount of Rs, 238,522.74 were drawn by the appellant on the Habib Bank Ltd. The drawing of the cheque for a sum of Rs, 50,000 at the Habib Bank, on 25th January, 1979, in favour of Messrs Zeenat Corporation has been confirmed by the Habib Bank Ltd.. By its certificate, dated 8th October, 1980, which was produced by Mr. Abdul Hafeez during the course of his arguments. Even if this, certificate is ignored, the very fact that not only the name of the party in whose favour the cheque is drawn is mentioned in the ledger but further even the cheque number has been given, should dispel any suspicion in regard to the said entry.
9. I consider the inability of the Manager, Mohammad Ramzan to give the production capacity of the machines installed in the appellants mills as of no significance except that perhaps it displays want of technical competence on the part of the Manager. Similarly the non-mention of the names of Karim, Nathoo and Badruddin in the register of temporary workers for the years, 1979 and 1980 is of no consequence, though it has been admitted by Manager, Mohammad Ramzan, that they were at one time employed in the appellant's Mills, since it has not been shown when the said persons were employed in the appellants Mills. It was submitted by Mr. Abdul Hafeez, the learned representative for the appellants, that the said persons were employed before, 1979. As there is nothing on record to contradict his contention, it may well be true.
10. The above detailed examination of the grounds on which the learned Labour Court has found the account books of the appellants unworthy of credence, and its assumption based on such finding that the reasons given by the appellants for the termination of services of the respondent are false and fictitious, neither justify such finding of the learned Labour Court nor its assumption based thereon. On the other hand, there appears to be tangible evidence on record to show that the business of the appellants Mills was progressively diminishing. In his affidavit before the learned Labour Court, Manager, Mohammad Ramzan has shown the figures in the appellants Mills of the production of the cloth from the years 1975 to the year 1978. These figures, which are based on the R. T-3 statements, countersigned by the competent Officer of the Excise Department, Government of Pakistan, show that whereas the total production of the cloth of the appellants Mills in 1975 was 26,63,253 yards, is the year 1978, it was reduced to only 1,138,989 yards. In consequence of the reduction of this work, the total number of workmen in the appellants mills, which stood at 100 in the year 1975, was reduced in the year 1979 to between 30 to 40 workmen, Looking to the production of work, the reduction in the workmen and the winding up of the production Department cannot be considered to be unjustified. It was claimed by the learned counsel representing the respondents that the R.T.-3 statements produced by the appellants are based on the stock registers which show only the purchase and sale of the cloth but do not show the quantity of cloth folded or packed. If the total production of the cloth by the appellants Mills was reduced in the year 1978 to about 40% of what it was in the year 1975, there could not but have been a substantial decrease of work in the folding Department. The appellants Mills cannot thus be said to have been unjustified in closing down the folding Department. Merely because the appellants restarted work in the folding Department on a limited basis and for a short span of time cannot lead to the inference that the appellants all along had been running their folding Department or that the appellants were actuated by improper motives in closing down the said Department. It is true that 3 of the repondents were office-bearers of the union in the appellant's establishment, but there is nothing to suggest that there was any prior animosity or ill-will between the Management and the Union. In fact it has been asserted by Manager, Mohammad Ramzan, and not contradicted by the respondents, that the union in the appellants mills is still functioning and that the management have concluded an agreement with the union in the year 1979. It is thus not established that the appellants were actuated by mala fides in terminating the services of the respondents.
11. Mr. Mohammad Shibli, who appeared for the respondent Ale Nabi, also sought to argue that the appeals of the appellants are not maintainable as no appeal lies against an order of the learned Labour Court passed under clause (3) of Standing Order 12 read with section 25-A, I. R. O. This contention was sought to be founded upon the decision of a learned single Judge of the Lahore High Court in the cases of Saeed Mukhtar Hassan & 2 others v. Punjab Labour Appellate Tribunal & others (1) and Pakistan International Airlines Corporation v. Punjab Labour Appellate Tribunal (2). I have considered these judgments in the case of Syed Mujahid Hussain v. Pakistan Security Printing Press, decided on 22nd October, 1980, and relying on the contrary judgments of the Lahore High Court itself in the cases of Shahi Bottles Ltd. v. Khushi Mohammad (3) and Cotton Trading Corporation v. Rana Shabbir Ahmad (4) have held that appeal to this Tribunal lies against a decision of a Labour Court given under clause (3) of Standing Order 12 read with section 25-A, I. R.
0.
12. For the reasons discussed by me above, I am of the view that the discharge of the respondent, in the instant case, was in accordance with the provisions of clauses (1) and (3) of Standing Order 12 and does not appear to be in violation of any provisions of the said Order. 1, therefore, find myself unable to uphold the decision of the learned Labour Court. I would accordingly set aside the impugned decision and allow the appeal in respect of all the 8 respondents. {{FOOT NOTE}} (1)PLD 1979 Lah. 743 (2) PLD) 1979 Lab. 415
(3) 1979 PLC 424 (4) 1981 PLC 981 {{FOOT NOTE}}