These are petitions under Section 33 of IRA, 2012 filed against the (retrenchment orders) dated 02 03.2012 alleged by petitioner 05.03.2012) above two petitions having common question of facts an law are being decided through this single order .
2. Briefly facts of the case as contended by the petitioner are that petitioners were employed in the respondent establishment a workmen on 01.06.2010 and on 1995 respectively . On 05.03.2012 where petitioners reported for duty they were gate stopped and not allowed to enter into factory premises. Whereupon petitioners were informed by the Security Officials that the Factory has been closed and no officer is prese nt in the office except Security Officials. The petitioners since 05.03.2012 continuously reported for their duties alongwith other workers, neither written order of termination has been served upon the petitioners nor requisite permission for retrenchment has been obtained. Petitioners served grievance notice on 17.03.2012 through registe red post and the respondents in response to the grievance notice through letter No. 30.03.2012 received by the petitioners on 01.04.2012 disclosed that services of the petitioners have been retrenched on 02.03.2012. Retrenchment order if any is illegal against the law and has been passed in violation of Industrial & Commercial Employment (Standing orders) Ordinance 1968 And that retrenchment order was not served upon the petitioners. That respondent establishment is a trans- provincial establishment having its offices at Karachi, Kotari, Sahiwal, Peshawar and Mandra Rawalpindi. And as such seniority list of whole establishment must have been combined having common balance sheet and annual report and juniors to the petitioners are till working in the establishment and the establishment has not followed the principle of last come first go. That the representative of District Labour Office visited the Factory on 05.03.2012 to 07.03.2012 and prepared a report in this regard which shows the malafide; contention of respondent management negated the reason for retrenchment and lockout, the petitioners contends that impugned order is illegal, malafide against law and facts of the case and that petitioners are jobless since their oral termination order dated 05.03.2012 have prayed that while accepting the petitions retrenchment order may kindly be set aside with all consequences ef fects and the petitioners may be reinstated into service with full back benefits.
3. Respondents were summoned entered appearance and filed reply Statement while raising preliminary legal objections on maintainability of the petitions, contended. that petitioners have willfully and deliberately suppressed the material facts, that they are Members of trade union namely Jeeway Pakistan Workers Union Lakson Tobacco Company which is provincially registered trade union with the Registrar of Trade Unions, Rawalpindi and is in possession of certificate of CBA issued by the said Registrar , and same is existing under the Punjab Industrial Relations Act, 2010, and petitioners are also. members of said trade union, while pre-condition is affiliation with the trade union which in the present case 'is not trans-provincial and once the said pre-Condition is fulfilled then only the question of trans-provincial establishment arises and there is no provision of IRA, 2012 which allows a trade union registered with the provincial Registrar of trade unions or individual having membership or claiming trade union activities with the provincially registered trade union to file grievance. As such leeway Pakistan Workers Union Lakson Tobacco Company has ceased to be a lawfully constituted and existing trade union. In the case of illegal lockout by the employer remedy is it term of Section 44 of IRA, 2012 which has not been followed and instead of District Labour Office, Rawalpindi was approached, as such on this plea present grievance petition is not justifiable and is liable to he dismissed. That petitioners have not claimed violation of any award or settlement while relying on law of Industrial & Commercial Employment (Standing orders) Ordinance 1968. That no valid and proper grievance notice has been served by the petitioners which is condition president for filing the grievance petition, and that pleading has not been verified on oath, as required under the oath act 1873, and. petitioners ate being represented by a labour representative who is practicing the legal profession in violation of legal practitioner in Bar Council Act; 1973, as such petition has been filed incompetently . That retrenchment is of only less than 50% workers was deducted and 90 out of 93 retrenched individual have cleared their legal dues as full and final settlement and only three including petitioners have, filed individual grievances and remaining more than 50% workers are performing Work, as such petition has become infructuous and no impugned order has been annexed with the petition, which was in the positive knowledge of the petitioners and that no right guaranteed or secured to the petitioners under any law award or settlement, for the time being enforced has been infringed, calling of enforcement, and that petitioners have not alleged in their petitions that grievance was in connection with any industrial dispute or same has led to any industrial dispute as such the grievance petitions are not maintainable. On merits the contention of petitioner .on merits were vehemently; denied and controverted.
4. On divergent pleadings of the parties were directed to produce their respective evidence petitioners himself appeared as PWs/1 and produce documents Exh P/1 to P/10. On the other hand respondents produced Qaiser Yaqoob was R W/1 who produced in his evidence documents R/1 to R/13.
5. Arguments heard record perused.
6. The petitioners contention is that they were terminated through an oral order of termination dated 05.03.2012, these petitions were filed on 29.05.2012 and Exhibit P/5 dated 10.03.2012 produced by the petitioners shows that petitioners were in positive knowledge of the retrenchment order on 3rd of March, 2012. Petitioners' trade union Jeeway Pakistan Workers Union Lakson Tobacco Company G.T Mandra is registered with Registrar of Trade Unions, Rawalpindi vide Exh R/2 and not with Registrar of Trade Unions of NIRC. This fact has been suppressed by the petitioners in their petitions. During the evidence petitioners has admitted "it is correct that I claimed to be members of jeeway Pakistan Workers Union registered in the respondent establishment. Vide Exh R/4 termination letters were served on the petitioners, Philips Morris Pakistan Ltd. filed an application for permission to terminate more than 50% workers and to closed down the establishment through petition bearing No. 29 of 2015 and vide order dated 27.04.2015 as per pars 4 of the order which is reproduced below: "In support of contention of the applicants the applicant has produced oral as well as documentary evidence. As per Exh P all the workers have opted to sign voluntary separation scheme (VSS) which has been brought on record, other factors like old machinery and financial losses have also brought on record which could not be rebutted in cross examination and if in rebuttal no evidence has been brought on record by the CBA, as such no option is left in circumstances of the cases except to accept the application filed by the applicant for closure of the establishment. No mala fide has been brought on record against the employer and in view of VSS signed by the employees which shows that prayer of employer is based on bonafide and through production of authenticated accounts have shows heavy losses continued year by year and failure of efforts for improving the condition of business shows that no longer feasible and profitable business as such in circumstances of the case application filed by the establishment under Section 1 1(A) for closure of establishment is allowed."
7. For retrenchment under standing orders ordinance no prior notice of termination is required for termination due to retrenchment, and retrench employees has failed to prove that the terms and conditions of their employment required prior notice to be given to them for termination of their services, as such act of retrenchment could not be regarded as illegal. In view of the above no permission was requisite for termination of the employees.
8. As per order dated 27.04.2015 passed by the labour Court No. 6 Rawalpindi voluntary separation scheme was signed by all the workers and out of 93, 91 workers have received their dues in full and final settlement and severed all their connections with the factory and have not filed any case and no violation of the VSS has been alleged, which took place with the consent of the rest of the employees and factory was closed after due permission as such allegation of illegal lockout also does not arise.
9. Petitioners have served the grievance notice to Factory Manager Philips Morris Ltd addressed to designation and not the legal entity i.e. respondent No. 1. Subsequently arrayed as a party and the petitioners during cross- examination admitted as under: "It is correct that grievance notice was served by me to Factory Manager . It is corre ct that no grievance notice was served to the respondent company except the one served to the Factory Manager".
10. As such grievance notice served by the petitioners could not be treated as grievance notice, in this regard 2002 SCMR 943 is relied upon and if proper and valid grievance notice is not served by the petitioners their petitions fails.
11. The Factory has been closed no violation of standing order 11 has been pointed out and that order has attained the finality . The factory has been closed and if petitioners are orders to be reinst ated in service no effect can be given by the respondents to such direction on account of closure of establishment. The petitioners during cross examination has admitted as follows: "It is correct that I was appointed for respondent Mandra Factory It is correct that I was never transfer to any other factory like Kotari, Karachi, Sahiwal and Mandra. It is correct to suggest that no evidence of appointment of persons mentioned in para No. 14 of my affidavit have been filed nor I can filed. It is correct that I did not served any grievance notice for re-employment".
12. The petitioners during the evidence has failed to prove that retrenchment order Exh R/5 was not served upon them and petitioners have not questioned the service of the same to the RW. Petitioners during cross examination admitted that "it is correct that out of 93, 91 has cleared their legal dues alongwith ex-gracia except for myself and one another and no workers has been reemployed"
13. So for as CMA. No. 7B(272)/2018 is concerned it has been filed on 07.12.201 8 while case of petitioners was already matured and fixed for final arguments after closure of evidence and was adjourned for final arguments on 17.06.2015, and petitioners after completion of their evidence got recorded their statement on 07.01.2015 that I closed evidence of the petitioner in the instant application, only request is to allow production of additional evidence no material has been mentioned or the documents intended to be produced, hence the CMA having no merits is also hereby dismissed.
14. What has been discussed above I have come to the conclusion that petitions filed by the petitioners under Section 33 of IRA, 2012 having no merits are merit dismissal are hereby dismissed, nor order as to the cost, files be consigned to the record room after due completion. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.