DECISION This appeal is directed against the decision of the learned Third Labour Court, given on 9th December, 1982, dismissing the grievance petition of the appellant challenging his dismissal from service, on the grounds, firstly, that the Standing Orders Ordinance is not applicable to the workmen employed in the respondent mills inasmuch as less than fifty workers are employed therein, and secondly, that the domestic enquiry against the appellant was validly conducted and no illegality appears to have been committed by the Enquiry Officer. The learned Labour Court repelled the contention of the appellant that he had been gate stopped with effect from 16th September, 1981 and observed that there was no evidence in support of this plea save the bar word of the appellant. The learned Labour Court further considered that there was no substance in the plea of the appellant that the person who had filed the written statement on behalf of the respondent establishment was not examined and the case of the appellant should stand on its own legs.
2. The facts giving rise to this appeal, shortly stated, are that the respondents are engaged in the business of weaving and manufacturing cloth and for this purpose they have a factory located at the S.I.T.E. Karachi. The respondents, for the purposes of their business, have engaged a number of workmen. The appellant was one of the weavers engaged in the respondent mills. It appears that on 27th September, 1981 a charge-sheet was issued to the appellant alleging that he has been unauthorisedly absent from his duties since 16th September, 1981. Similar charge-sheet were issued to three other weavers, namely, Muhammad Marzooq, Jehan Sher and Sher Bahadur. All these charge-sheets were sent by registered post to the addresses of the appellant and the three other weavers as available with the respondent mills. The charge-sheets, however, were returned undelivered with the endorsement that persons of that name were not available at the addresses indicated. The manage--ment, accordingly; by letters, dated 3rd October, 1981, sent copies of the charge-sheets alongwith covering letters of that date to the appellant and the three other weavers and these charge-sheets appear to have been duly served upon the appellant and his companions. . On the other hand, the case of the appellant is that there was a lockout in the respondent mills with effect from 16th September, 1981 and they were not allowed to enter the mills or work therein. A domestic enquiry based on the charge-sheets of 27th September, 1981, was held against the appellant and his three co-workers and on the basis of the report of the Enquiry Officer, the appellant and his three co-workers were dismissed from service vide orders, dated 15th November, 1981. In the domestic enquiry four witnesses were examined on behalf of the management namely, Qoowat Khan, Master Muhammad Nazir Khan, Ali Rehman's and Ahmed Saeed. They supported the allegations in the charge-sheets that the appellant and his three co- workers had absented themselves from their duties without leave for a period exceeding ten days.
In defence the appellate and his three co-workers examined two witnesses, namely, Anwar Minhas and Fazal Karim, who stated that they had been informed by the appellant and his co-workers that they have been removed from their duties and that there were negotiations between 17th September, 1981 to 25th September,. 1981 before the Conciliation Officer of the Labour Department for the re in-statement of the workers but the management refused to take back the workers and wanted that the workers should settle their accounts and be paid of, and accordingly, the negotiations broke down. On the basis of the report of the Enquiry Officer dismissal orders, dated 15th November, 1981, were issued to the appellant and his three co-workers. Dissatisfied with the said orders ail the four of them filed a joint grievance petition before the learned Third Labour Court . In those proceedings, the appellant and his three workers filed their affidavits but as only the appellant and co-workers Sher Bahadur presented themselves for cross-examination,. Their evidence alone had been considered by the learned Labour Court while the affidavits of the remaining two co-workers, who did not offer themselves for cross--- examination, have been kept out of consideration. Only the appellant has preferred an appeal while his three co-workers appear to have been satisfied with the decision of the Labour Court
3. As already indicated, the learned Labour Court has held that the total number of employees in the respondent establishment at the relevant time was less than fifty and hence it has taken the view that the Standing Orders are not applicable to the respondent establishment. The learned Labour Court did not rely upon the claim of the appellant that as many as eighty employees were working at the relevant time in the respondent mills, as the appellant and the other three co- worker had given contradictory statements not only as to the number of persons employed in the respondent establishment but also in regard to the number of looms in the respondent mills. The learned Labour Court particularly referred to the evidence of the appellant, who in his affidavit had claimed that there were fifty looms in the - respondent mills but in his cross-examination admitted that in fact there were only 23 looms in the respondent mills. It is obvious that in a factory having only 23 looms fifty or more persons cannot normally be employed particularly when the usual practice is for one weaver to operate three or four looms. The learned Labour Court also has referred to the fact that the appellant and his co-workers had not given the names of the other workers engaged in the respondent mills. In view of this overwhelming evidence, including the fact that the respondent mills had been submitting returns for the relevant period in respect of the Workers' Children Education Cess indicating the total number of workers to be 40-42, Mr. Yousaf Khan, the learned counsel for the appellant did not contest the finding of the learned Labour Court that the number of employees at the relevant time in the respondent mills was less than fifty. The learned Labour Court , however, misconceived the law in holding that because the number of employees in the respondent mills was less than fifty, the Standing Orders Ordinance is not applicable to the employees therein. The second proviso to subsection (4) of section 1 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provides that only the provision of Standing Orders 10-B, 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not be applicable to industrial establishments wherein not more than forty-nine persons were employed during the relevant period. A It has been held by the Supreme Court in the case of Al-Hussain Silk Mills v. Presiding Officer, ' Sind Labour Court (PLD1981SC39) that the provisions of clause (5) of Standing Order 12 are not attracted in the case of an industrial establishment employing less than fifty workers and in such cases termination of services for misconduct does not require the following of the procedure prescribed in Standing Order 15, as the said Standing Order is not applicable to such establishments. ANA,
4. Mr. Yosuf Khan sought to argue that since the other Standing Orders, excepting those specifically excluded by the second proviso to- sub-- section (4) of section 1 of the Sind Industrial and Commercial Employments (Standing Orders) Ordinance, 1968, are applicable to the respondent mill, notwithstanding the fact that it may be employing less than fifty persons the dismissal orders must fulfil the requirements of clauses (1) and (3) of Standing Order 12. Clause (1) requires that in the case of a permanent workman whose services are terminated, except for misconduct, he has to be either given notice of one month for the termination of his services or wages in lieu of notice.
Since the services of the appellant had been terminated on the ground of misconduct such notice or wages in. Lieu of notice would not appear to be a requirement of law.
5. As regards clause (3) of Standing Order 12 it provides that the order terminating the services of a workman must be in writing and such order should state explicitly the reasons for the termination of services. Both these requirements have been fulfilled in respect of the order, dated 15th November, 1981, which has been passed in respect of the appellant. Not only is the order in writing but it details the reasons for the termina--tion of his services. Mr. Yosuf Khan attempted to argue that the order does not state the reasons for the termination of services but a bar perusal of the order clearly indicates that his contention is without substance.
6. Although the provisions pf Standing Order 15 are not applicable in the instant case a domestic enquiry in record with the provisions of the said Order was held against the appellant and in that enquiry there was tangible evidence to show that the appellant had absented from his duties without leave for a period exceeding ten days. Mr. Yosuf Khan attempted to show that the appellant had attended his duties on 16th and hence on 27th October, 1981, when the charge-sheet was issued to the appellant, he had not remained absent from his duties for a period exceeding ten days even if the allegations against the appellant are believed. I have already indicated that the charge-sheet, dated 27th September, 1981;, was sent by registered post to the appellant but it was returned back with the postal endorsement that its delivery was refused and hence it was sent for a second time to the appellant with the covering letter, dated 3rd October, 1981. As such, even if the contention of Mr. Yosuf Khan is accepted that the appellant had attended duties for part of the day on 16th September, 1981 the appellant until 3rd October, 1981 had remained absent for a period exceeding ten days.