IJAZ ANWAR, J.--- Since there is close unanimity between W.P No .371-P/2011 and W.P No .371- P/2011, therefore, these are being disposed of by way of this single judgment.
2. Facts of the case, succinctly, are that Abdul Rashid and others, the respondents Nos,1 to 31 herein, hereinafter referred to as "employees" were the employees of M/S Habib Hotel and Restaurant the petitioners herein, hereinafter referred to as "employer" and their services were terminated, vide order dated 10.2.1997. Aggrieved of the same, the employees filed a grievance petition under section 25-A (10) of Industrial Relations Ordinance, 1969, which was contested by the employers by filing written reply. The learned Presiding Officer, Labour Court, Mardan, Camp Court at Peshawar, after recording pro and contra evidence, vide judgment dated 5.7.2004, accepted the grievance petition in the following terms:- "Termination of petitioner who, according to list of Hotel employees Ex.PW 1/2, Ex PW 1/3, Ex.PW 1/4 and lists Ex.PW 3/1, Ex.PW 3/2 produced by Senior Assistant, EOBI (PW-3) were serving in the respondent hotel under respondent from 10.2.1997 is held illegal. Their petition is accepted but instead of their re-instatement (as the establishment in question is no more in existence), it is directed that each petitioner be paid compensation equal to 12 months pay along with the with- held allowances. Parties are left to bear their own costs. File to R.R after completion."
3. Being not satisfied with the judgment of Labour Court, the employer filed Labour Appeal No, 26/2004, while the employees filed Appeal No,27/2004 against the judgment of Labour Court. The learned Labour Appellate Tribunal, Khyber Pakhtunkhwa, vide judgment dated 11.10.2010, disposed of both the appeals in the following terms:-- "In this view of the matter, while dismissing Appeal No, 26/2004 filed by employers-appellants and allowing Appeal No, 27/2004, by employees-respondents, the impugned judgment dated 5.7.2004, passed by Labour Court, Mardan, Camp Court, Peshawar, is modified and while maintaining the same to the extent it declares the termination order as illegal, the latter portion of the same is reversed and employers-appellants are directed to re-instate the respondents-employees on their respective posts with all consequential service benefits till such time the establishment is closed in accordance with law and the services of the respondents are terminated."
4. Still not satisfied, the employers filed the above referred writ petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for setting aside the impugned judgments, passed by learned Labour Court as well as Labour Appellate Tribunal, Khyber Pakhtunkhwa, dated 5.7.2004 and 11.10.2010 respectively.
5. Mr. Aamir Javed, Learned counsel for the petitioners argued that due to loss in the business, the establishment of the employer, i,e,, Habib Hotel and Restaurant, was closed on 20.1.1997 as a result the services of the employees were terminated on 20.2.1997 and as such, they are no more the employee of the hotel from 20.2.1997, because subsequent thereto, the hotel was converted into market and, now, it has been rented out by the employers/petitioners. Learned counsel referred to the statement of the witnesses and contended that before filing of grievance petition, service of grievance notice upon them has not been proved. He also referred to Section 11-A of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968, and contended that where no permission is obtained from Labour Court prior to the closure of their establishment, no penal action is prescribed except the one given in section 7 of the Ordinance, ibid, which is only to the extent of fine, however, in no circumstances, the employees can be ordered to be re-instated. He referred to the judgment of Labour Court and contended that in peculiar circumstances, the judgment of the Labour Court was reasonable as compensation equal to 12 months pay along with withheld allowances were decreed, however, learned Labour Appellate Tribunal re-instated the respondents-employees with all consequential service benefits till such time the establishment is closed, in accordance with law. He lastly argued that when the establishment is closed, how the employees, can be reinstated in closed establishment. He placed reliance on 2008 PLC 316, 2001 PLC 312, 1993 PLC 308, 2000 PLC 661, 2001 PLC 211, 1995 PLC 101 and 1988 SCM R 1725.
6. Mr. Bilal Ahmad Kakazai, learned counsel for the respondents, argued that where the law has prescribed a specific mode for the closure of establishment, any deviation therefrom shall entail the consequences as provided under section 12 of the Standing Order ibid, whereby the procedure for termination of service of the employees is provided and when no such procedure is followed, as in the case of the respondents, the consequences that would be followed for re-instatement along with all consequential service benefits and the learned labour appellate tribunal has rightly held so.
7. We have considered the submissions of learned counsel for the parties and have gone through record of the case.
8. Under section 46(4) of the Industrial Relation Ordinance, 2002, the powers of the Labour Court is prescribed. It is reproduced as under;-
46. Redress of individual grievances.---
(5) In adjudicating and determining a grievance under subsection (3), the Labour Court shall go into all the facts of the case and pass such orders as may be just, and proper in the circumstances of the case.
Similarly, under Section 11-A of the Industrial and Commercial Employment (Standing Order)
Ordinance, 1968, a specific mode has been provided for closure of establishment, the non- compliance or doing any act by the employer in contravention to the Standing Order has been made punishable with fine. The question about non-compliance of the mandatory provisions of Standing Order i,e,, 11-A, came up for hearing before the superior courts in a number of cases. In the case titled A&B Beverages Ltd. Shama Labour Union through President v. Registrar of Trade Union, Government of Sindh (2008 PLC Karachi 316), it was held that where the company is no more in existence, how can the employees be re-instated against such closed establishment.
In the case of Qalandar Khan v. Messrs Union Cold Storage Co. Ltd. through Chairman (2001 PLC Sindh 312) while relying on 1993 PLC 2008, supra, it was held that employer having completely closed down its establishment, even if employees were ordered to be re-instated in service, no effect could be given by the employer to such direction on account of such closure of establishment. In Salahuddin and others v. Sindh Labour Appellate Tribunal and others (2000 PLC Karachi 661), it was held that seeking permission from Court, as above, is mandatory. Its Object is primarily to safeguard the interest of workman and also to ensure that without justification running establishments are not closed down. In the instant case, due to changed circumstances, respondent No,3 abruptly relapsed as such the establishment was closed down and in the absence of any mala fide such closure cannot be questioned. Similar view was taken in the cases of Tajim Khan v. Messrs Darbar Soap Worker (2001 PLC Sindh 211) and Riaz Hussain Khurram v.
Muhammad Safdar Khan and another (1995 PLC 101). In the case of Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal (1988 SCM R 1725), honorable, the apex court held that the determining factor would not be the closure of establishment but the abolition of the post on which the terminated employee was posted and it can be questioned only when there is evidence or apprehension of the employee that others were appointed. In fact, this was not the case of the petitioners.
9. What we gathered from the judgments of the superior courts on the question of closure of the establishment is that bona fide of employer is to be seen while closing down the establishment. It is in the evidence that the petitioners-employers took possession of the hotel after protracted litigation from the then owners of the hotel in the year, 1993. Since they sustained financial loss, therefore, could not carry out the business of the hotel resulting into closure of the hotel and issuance of order of the termination of the employees. The bona fide of the petitioners- employers about the closure of the hotel has not been questioned anywhere by the employees. Therefore, as per dicta laid down in the above judgment, when there is no post against which the employee can be retained, it would be rather unreasonable to thrust employees on the petitioners against a non- existent hotel. The judgment of the learned Labour Appellate Tribunal to this extent is not sustainable.
10. Learned counsel for the petitioners has not seriously contested the judgment of the Labour Court rather he at many occasions termed it to be reasonable in the given circumstances of the case. The Labour Court vide its judgment and order dated 5.7.2004, while allowing the grievance petition, has granted compensation equal to 12 months pay along with the withheld allowances, and it was because of the fact that at the relevant time the Industrial Relation Ordinance, 2002 was in the field. Section 46(5) provides that;-
46. Redress of individual grievance: (1)
(2)
(3)
(4)
(5) The Labour court, in case the termination of services of a workman is held to be wrongful, may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent, if admissible, in lieu of re-instatement of the worker in service.
The learned Labour Court while allowing the grievance petition had relied upon section 46(5) of the Ordinance, ibid; however, the judgment was not implemented till date. The petitioners have not deposited the 12 salaries at the relevant time and the respondents faced the agonies of this protracted trial for the last 20 years, therefore, we while setting aside the judgment of the learned Labour Appellate Tribunal dated 11.10.2010 maintain the judgment of Labour Court dated 5.7.2004, however, with slight modification that the respondents shall be paid salaries for the period of fifteen (15) months at the rate of present minimum wages i,e,, Rs,15000/,- per months. The amount already received by the respondents, in the Labour Court shall be adjusted accordingly.
Both the writ petitions are disposed of in the above terms.