DECISION These are to cross-appeals against an award given by the learned First Sind Labour Court, Karachi, dated October 4, 1971. The appeal by the Zebtun Textile Mills Limited (hereinafter called the Management) was filed on the 9th October 1971, and that by the Zebtun Textile Mills Labour Union (hereinafter called the Union) on 2nd November 1971. The learned Labour Court by the impugned swa rd ordered the re-instatement of 24 workmen and allowed them to months wages. The facts giving rise to the appeals, as stated in application of the Union under section 34 of the Industrial Relations Ordinance, 1969 dated 6th April 1971 (hereinafter called the Ordinance) briefly put are these.
2. The Union alleged that the Management had been depriving the workmen of their legal dues and facilities. The Management had also refused to pay wages for 7th and 17th December 1970, which were declared holiday by the Government of Pakistan. The workmen and the Union, it is alleged in para. 5 of the application, did their best to persuade the Management to see reason. That the Management on 19th March 1971. Humiliated the Union Officers, which resulted in strike. Through the intervention of the Assistant Commissioner and Sub-Divisional Magistrate, who called the parties on 25th January 1971, the strike was called of and the workmen reported for duty. The Management admitted the workmen of its choice to resume duty and refused the others. The Union filed a list of 145 persons, who, according to it, were refused employment. It may be mentioned at this very stage that Mr. S. P. Lodhi, the learned Representative for the Union stated that the list of 145 persons is not correct. It should be only 142.
3. It has been stated in para. 12 of the application that the Management had denied the right of employment guaranteed to the workmen and that no notice of charge-sheet was served on the workmen, who are alleged to have been dismissed by the Management. This amounts to the violation of the principle of natural justice. On these grounds the Union prayed for 5 reliefs, namely :
(1) To order the Management to abide by the decision arrived at before the Sub-Divisional Magistrate on 25th January 1971 :
(2) To declare the workmen concerned in the employment of the Mill ;
(3) To order the payment of wages from 26th January 1971 to the workmen concerned, who were disallowed to resume duty ;
(4) To order the Management to negotiate with the Union as decided on 25th January 1971, with regard to the wages for the strike period'; and
(5) Give any other relief that the Court may deem proper.
4. On behalf of the Management three preliminary points were taken as to the maintainability of the application under section 34 of the Ordinance. It was stated by the Management that notices of charge-sheet were sent through registered letters with acknowledgement due and also by way of precaution through ordinary post under Postal Certificates. A notice was also pasted on the gate of the Mill in respect of persons, who were charge-sheeted. The workmen were charged for resorting to illegal strike. After due enquiry, though ex parte, the workmen were found guilty and dismissed from service.
5. I propose to take up the appeal of the Management in the first instance.
6. Mr. M. A. Khan the learned Representative for the Management contended that the learned Labour Court should have dismissed the application on the ground that there was no denial of any right guaranteed or secured to the Zaibtun Textile Mills Labour Union. It was contended that it also cannot be said that the Management had dis-regarded any term guaranteed to the Union under any award or settlement. In this connection, it was alleged that the so-called decision of the Assistant Commissioner dated 25th January 1971, cannot cannot be said to be an award or settlement within the meaning of the definition given of these terms under section 2(ii) and (xxiv) in the Ordinance. It would be useful to reproduce the exact objections of the Management as given in its reply dated 15th April 1971. These run as under :-
(1) That this application purporting to be under section 34 of the Industrial Relations Ordinance, 1959 is Ipso facto not maintainable inasmuch as the reliefs claimed by the applicant do not arise from or involve enforcement of any right guaranteed or secured to the applicant by or under any law or any award or settlement.
(2) That the Application is also not maintainable on the ground that so industrial dispute was raised and or was in existence in accordance with law prior to the filing of this Application nor did any such dispute lead to be filing of the present Application.
(3) That in any case the alleged joint decision (Annexure `.A' to the Application) apart from not being a joint decision or commitment made before the Assistant Commissioner and Sub-Divisional Magistrate, Harbour, Karachi, is not a "settlement" in terms of section 2(xxiv) of the aforesaid Ordinance and therefore, the question of enforcement of any commitment thereunder does not arise.
7. In order to dispose of the contentions of the learned Representatives for the parties, it is necessary to reproduce section 34 of the Ordinance. It reads as under :- "Any collective bargaining agent or any employer or workmen may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any award or settlement."
8. Mr. M. A. Khan, the learned Representative for the Management relying upon the above provision of law, contended that on a perusal of the application under section 34 of the Ordinance, it cannot be said that any right guaranteed to the Union had been flouted by the Management. Section 20 of the Ordinance refers to "Registration of federation of Trade Unions." Section 22 of the Ordinance deals as to which Union can be said to be collective bargaining agent and also where there are to Unions, about the election of collective bargaining agent. Under sub-clause (I2) of section 22 of the Ordinance the collective bargaining agent in relation to an establishment or group of establishment shall be entitled to:--
(a) Undertake collective bargaining with the employer or employers on matters connected with employment, non---employment, the term of employment or the conditions of work ;
(b) represent all or any of the workmen In any proceedings ;
(c) give notice of, and declare, a strike in accordance with the provisions of this Ordinance ; and
(d) nominate representatives of workmen on the Board of Trustees of any welfare institutions of Provident Funds, and of the Workers Participation Fund establishment under the Companies Profits (Workers Participation) Act, 1968.
9. On a perusal of the provisions of the Ordinance, it, cannot be said that any right guaranteed to the collective bargaining agent, as such, bad been denied by the Management. Mr. Lodhi, the learned Representative for the Union, however contended that the identity of the workmen is merged in that of the collective bargaining agent and therefore, it can be legitimately said that the right guaranteed to the workmen was guaranteed to the Union. In other words, if the workmen were dismissed without show-cause notice or were refused to resume duty the Union should be taken to have been dismissed without show-cause notice or refused to resume duty. It is difficult to accept this contention in the face of the clear provision or section 34 of the Ordinance. Under section 34 of the Ordinance the collective bargaining agent and workmen have been given separate right to invoke the assistance of the Court for enforcement of the right guaranteed to it or him. In this appeal however, it is not necessary to give any categorical finding on this question of law, as I am of the view that no useful purpose can be served by disposing of the application on this technical ground when the workmen, who were interested to pursue the application have till appeared before the Court and were subsection to cross-examination by the learned Representative of the Management. If the application was dismissed by the Court on this technical ground, the workmen would have filed separate application under section 34 of the Ordinance before the Court for redress of their grievances. The individual workmen, who were interested to ask for relief did file their affidavits in support of their grievances and were subjected to cross-examination. I will treat their affidavits to be their individual applications under section 34 of the Ordinance.
10. From the perusal of para. 12 of the application under section 34 of the Ordinance which reads as under, I am of the view that the workmen have a right guaranteed that a notice of the charge- sheet should be given to them and that they should not be refused to resume duty without any ground provided under the Standing Orders Ordinance or under the Ordinance. Paragraph 12 runs as under :- "That the Employers of the respondents are reported to have issued so-called charge-sheets and by staging drama of so called Enquiry given their action the cover of dismissal from service but in fact the same in lock-out and unlawful and unwarranted denial of right of employment which is guaranteed and secured to the workmen."
11. It is sufficient to say, as would appear from the opening para. Of the Memo : dated 25th January 1971, that the decision was a mere record of the differences between the parties, which had led to the strike by the workmen. The opening paragraph reads as under :- "At a meeting of the Representatives of the Labourers and the Management of Zaibtun Textile Mills the following point were raised as disputed between the to parties resulting in the present strike."
12. Admittedly, this Memo. Is signed only by the Magistrate and not by the parties. The Memo : therefore, cannot be said to be an award or settlement.
13. The learned Court ordered the re-instatement of 24 persons in all. It ordered 16 workmen to be re-instated on the ground that they were not dismissed by the Management. The learned Court ordered the other 8 workmen to be re-instated on the ground that either they were not present on the day of the strike or had gone to resume their day on 27th January 1971. Toe learned Court observed that the Management having taken back all those workmen, who reported for duty on 27th January 1971, these workmen should else be deemed to have resumed duty on 27th January 1971.
14. As regards 16 persons, who were ordered to be re-instated on the ground that they have not been dismissed from service, Mrs. M. A. Khan the learned Representative for the Management, contended that 5 of those persons, namely, Fazal Karim, Shamsher, Qalandar, Munawar and Bakhtpur Khan, were only badli and, therefore, the Management could dispense with their services under Standing Order 12 of the Standing Orders Ordinance without recourse to notice or charge- sheet.
15. Fazal Karim in his affidavit stated that he had been is service of the Mill for about 6 months.
Shamsher in his affidavit stated that he had been in service of the Mill about one year. Qalandar stated that he was 1n service of the Mill for about 4 months. Munawar stated that he was in service of the Mill for about 3 months. Lastly, Bakhtpur Khan is in affidavit stated that he had long service to his credit. He did not give specific period of bit service with the Management.
16. I have gone through the cross examination of Fazal Karim, Shamsher, Qalandar and Munawar. I am satisfied that they cannot be said to be badli. If the Management challenged what they stated, they could have easily proved from their record the persons in whose place these 4 persons were appointed. A badli under Standing Order 1 means, "a workman who is appointed in the post of a permanent workman or probationer who is temporarily absent."
17. It must be in the knowledge of the Management and a matter of record as to which workman was temporarily absent and in whose place these persons were appointed.
18. So far as the case of Bakhtpur Khan is concerned, he stated in his cross-examination as under:- ----- "I was just employed on 25th November 1971. It is not correct that my services were terminated on the 21st of January 1971 as the Mill was closed. It is correct that I was re-employed front 18th February 1971, and worked up to 22-2-1971. But it is not correct that I was re-employed as badli worker. It is not correct that I did not report on 27-1-1971. I did report for duty but I was refused work."
19. In 'the case of Bfakhtpur Khan, I would accept the statement of Rahat Ali that he is a badli. There is nothing in the cross-examination of Rahat Ali to suggest that Bakhtpur Khan was not a badli The fact that he was employed on 25th November 1971 and then again re-employed on 18th February 1971 would lend support to the statement of Rahat Ali that he was only a badli. It seems to me that he was employed when some permanent workman absent. The learned Court could not treat Bakhtpur as a permanent workman entitled to re-instatement.
20. Mr. M. A. Khan, the learned Representative for the Management contended that Shamshad admittedly was suffering froth Leprosy and when he reported for duty he asked for light work, which the Management was not able to provide him. The relevant portion of the cross-examination of Shamshad reads asunder :-- "I was working in the Mill since September 1969. I was suffering from Leprosy. I was a weaver. I was informed while on duty. I requested for light work as per advice of the Doctor."
21. In the case of Shamshad it was a simple termination of employment within the meaning of Standing Order 12. The Management was entitled to terminate the services of Shamahad as he was suffering from Leprosy and was unable to perform his usual, on one month's wages calculated on the basis of average wages earned by him during the last 3 months.
22. In the case of the rest of 10 persons out of 16, it was contended that as they had abandoned service, the Management did not take any step against them. I would maintain the order of the learned Court in respect of 10 persons on the ground that had there been anything to proceed against these 10 persons, the Management would have taken the same step which it had taker: against the others, who had bean dismissed from service. To give an opportunity to the Management now to proceed against these 10 persons may be abused by the Management. I would therefore maintain the order of the learned Labour Court in respect of these 10 persons.
23. So far as the rest of the 8 persons, who had been ordered to be re-Instated by the learned Court as they had reported for duty on 27th January 1971, I have heard Mr. M. A. Khan the learned Representative for the Management and I do not see any reason to modify the award. I have gone through the statement of all the 8 persons and their cross-examination. I am satisfied that Mohammad Khan had reported for duty after the expiry of his leave on 31st January 1971 while 7 others had also reported for duty on 27th January 1971.
24. Mr. Lodhi, the learned Representative for the Union, contended that 24 persons, who have been awarded to months' wages should have been granted all back benefits. In the circumstances of the present case, which I would presently mention, the learned Court was quite justified in granting only to months' wages.
25. The admitted position is that the workers had gone on strike. The question is as to whether the strike was illegal. Under section 2(xii) of the Ordinance "illegal strike" means strike declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance."
26. The admitted position is that the procedure prescribe for taking restort to strike under the Ordinance was not followed. The strike by the workmen was, therefore, illegal. The Management would have proceeded against all the workmen who had participated in the illegal strike. On the other hand, the Management in order to maintain happy and cordial relationship with the workmen gave them several options to resume work In view of the fact that the Management was always ready and willing to take back workmen even though they had resorted to illegal strike, to months wages on re-instatement was a sufficient compensation to the workmen.
27. In the result, so far as the appeal of the Management is concerned the award Is modified only as regards the re-instatement of Shamshad and Bakhtpur Khan. They are not entitled to re- instatement. I would like to make it clear, in order to avoid future trouble between the Management and the workmen, that In case 22 persons who should have been re-Instated after excluding Shamshad and Bakhtpur Khan, if they bad not already been re-instated, they will be entitled to the wages for the, period from 4th October 1971 the date of the award till they are re-instated.
28. I now propose to take the appeal of the Union. Mr. S. P. Lodhi the learned Representative for the Union, raised to main contentions before me. He contended in the first place :hat there was no service of the charge-sheet on the workmen, who are alleged to have been dismissed from service.
In the second place, he contended that there was no illegal strike within the meaning of the definition gift under section 2(xii) of the Ordinance. I propose to dispose of these to contention separately.
29. Mr. Lodhi contended that there was no service of the charge-sheet through registered letters, as admittedly, all of them were returned un-served, except to of the notices which were received not by the workmen to whom they were addressed, but by someone not known to the addressee. He therefore, submitted that no presumption can arise under section 114 of the Evidence Act as to the service of these notices on the workmen to whom they were addressed. So far as notices that were sent simultaneously with the registered letters by post, they were --denied by the workmen to have been received by them. The Management had produced Certificate of Posting of these letters.
30. I would now take up the question whether the service on the dismissed workmen was sufficient or otherwise. Rabat Ali Labour Officer of the Management filed his affidavit. He stated in para. 10 as under :- "That copies of the charge-sheets were sent at the home address contained in their personal files and as disclosed by the concerned workmen the charge-sheets were sent by registered post A/D and under Certificates of Posting. Copies of the charge-sheet were also pasted at the gate."
31. Rahat Ali was cross examined at length by Mr. Lodhi, the learned Representative for the Union. It is noteworthy that I no question was put to Rahat Ali challenging that the addresses to which the letters were sent either through registered post of through ordinary post, were not correct addresses and therefore, the workmen could not receive the letters. On the other hand, on behalf of the Management questions were put to many of the workmen to establish that letters were sent to correct addresses as given by the workmen. Where a letter is proved to have been properly addressed and posted there is a presumption that it reached the addressee in due course. To raise a presumption of it due delivery to the addressee all that has to no proved is that the letter was properly addresses and pasted. It is true that no such presumption can arise in case of registered letters, as they were returned un-served. It is, however, noteworthy that though the addresses were correct, but not even one of the letters addressed through registered-post was received by any of the workmen, except to, which were also received by some one who were not known to the addressees. This is a very unusual circumstance If a letter is returned the presumption is either that the addressee refused it or that he could not be found. Ordinarily the Postman visits the addressee once or twice to deliver the latter If he does not and the addressee his returns the registered letter.
In the case of the registered fetters, I would hold that no presumption would arise that they were served on the workmen to whom they were addressed. So tar as the letters sent throe h ordinary post and under Postal Certificate are concerned, the addresses being correct, the presumption would be that the letter was received at the the when it could be delivered in the ordinary course of post. On production of a Certificate Posting the Court can presume due despatch and receipt of this letters. It is true that the workmen have denied to have received the letters ever through ordinary post. Mere denial, however by the workmen of the receipt of these letters is not sufficient to rebut the presumption of their receipt by them. It is very surprising that though the letter was addressed correctly, but none of to workmen admitted to have resolved them. Moreover, Bakhat Rawan stated in para. 8 of his rejoinder-affidavit dated 20April 1971, as under:-- "That I make categorical statement that till 27-1-1971, there was no charge-sheet to any workman. It was after several days that some workmen received the same and the respondents also continued issuance of the same which in fact were not delivered or sent at all."
32. The statement of Bakht Rawan, who is the General Secretary of the Union and had made the application under section 34 of the Ordinance cannot be lightly treated. Bakht Rawan having admitted that some of the workmen did receive the charge-sheet is In direct contrast with the statement of the workmen, who denied to have received the charge-sheet. At any rate, no reason has been suggested as to why the Management could not have served the charge-sheets on the workmen. If the charge-sheets had been served the workmen would have appeared before the Enquiry Officer to plead either that they were innocent or to admit the charge, In most of the cases the workmen were charged for having gone on illegal strike. The workmen knew that it would be almost impossible for them, as I would later on show, to prove that they had not gone on illegal strike and, therefore, they avoided appearing before the Enquiry Officer.
33. Even if it was held that the service was insufficient and therefore, the enquiry was bad in law, it would be open to this Court to re-instate the workmen, who had been dismissed and to allow the Management to hold fresh enquiry. In the circumstances of the present case, it would be merely a farce to order re-Instatement and fresh enquiry. It is open to the Court, on the evidence on record, to find out whether the charges levelled against the workmen were proved or not. I have no doubtth about the workmen, who had been charged for having taken recourse to illegal strike, that the charges were established.
34. The position taken by the Union in the application under section 34 of the Ordinance filed on 6th April 1971 is that the workmen had gone on strike. In this connection. I would reproduce paragraph 6 of the application. It runs as under :- "That this belligerent, humiliatory and highly unreasonable attitude and misconduct on the part of the employers of the respondents caused a furore among the workmen of the Mills and they went on spontaneous strike."
35. The opening para of Annexure `A' filed by the Union along with the under application under section 34 of the Ordinance reads as under :- "At a meeting of the Representatives of the Labourers and the Management of Zaibtam Textile Mills the following points were raised as disputed between the to parties resulting in the present strike.
36. It is only an afterthought on the part of the Union to allege that the workmen did not go on strike. It will be illegal strike if it is commenced without taking recourse to the provisions of the Ordinance. The admitted position is that no notice was given by the Union under section 26 and section 28 of the Ordinance. I would hold that the strike was illegal and, therefore, those who participated in the same were guilty of misconduct. The workmen no doubt denied in their affidavits to have participated in the strike. They, however, cannot be believed in view of the affidavit of Bakht Rawan dated 6th April 1971, who admitted the contents of the application under section 34 of the Ordinance of the same date. I would confirm the finding of the learned Labour Court that the strike was Illegal.
37. The Union filed a list of 145 persons alleging that they were refused employment by the Management. Mr. Lodhi, the learned Representative for the Union, stated that 3 workmen have been entered twice, i.e. The workmen at Serial Nos. 81, 87 and 136. He further stated that 6 workmen, i.e. At Serial NOS. 1, 17, 39, 41, 50 and 72 had been paid their dues by the Management and had left. He submitted that 13 workmen out of 142, I.e. Serial Nos. 79, 95, 97, 101, 102, 103, 112, 113, 120, 121, 130, 138, and 140 had been re-instated by the Management in April 1971. Mr. Lodhi further submitted that 20 of the workmen, Le. Serial Nos. 31, 57, 58, 61, 64, 74, 76, 93, 115, 117, 118, 122, 123, 127, 128; 129, 131, 132, 137, and 139 were not available, lastly Mr. Lodhi conceded that 7 workmen at Serial Nos. 62, 92, 104, 106, 124, 126, and 133 filed their affidavit in support of their grievances, but were not available for cross- examination He said that 12 of the workmen, i.e. . Serial Nos. 10, 20, 70, 82, 83, 91, 108, 110, 111, 114, 127, and 144 have filed no affidavits in support of their grievances. It is thus clear that those who had been paid of, taken back in service not available, those who pled affidavits but were not cross- examined and those who filed no affidavits, are not interested fn the relief asked for by the Union.
Their total number comes to 58. The Court had re-instated 24 of the workmen, I.e. At Serial Nos. 16, 29, 32, 42, 53, 54, 55, 56, 77, 78, 80, 85, 89, 90, 98, 99, 105, 109, 116, 125, 134, 141, 142 and 143. The total number of workman whose cases need not now be considered by this Court is 82. Thus the workmen whose cases have to be considered by this Court are 60; who are at Serial Nos. 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 18, 19, 21, 22, 23, 24, 25, 26, 28, 30, 33, 34, 35,36, 37, 38, 40, 43, 44, 45, 46, 47, 48, 49, 51, 52, 59, 60, 63, 65, 66, 67, 68, 69, 7l, 73, 75, 84, 86, 38, 94, 96, 100, 107, 119, 135 and 145.
38. I will in the first instance take up the cases of 4 persons namely, Sultane Room (Serial No. 84), Kaki (Serial No. 86) Amanullah (Serial No. 88) and Hazrat Ahmad (Serial No. 94). These persons were charge-sheeted but no enquiry was held against them. Rahat All in respect of these 4 persons, who are mentioned in List `F' produced by him, stated in para. 16 of his affidavit as under :- "That 14 workmen as per list annexed herewith marked 'F' who had been charge-sheeted but against whom no enquiry was held as they were not considered to be ring leaders and whom the Management was prepared to take back on duty did not report for work on 27th of January 1971. Or any the therefore despite the fact that they were given opportunity to do so till the 10th of March 1971 . . . . ."
39. All these four persons have filed their affidavits. Hazrat Ahmed stated that he had reported for duty on 27th January 1971, but the Gate-Keeper told him that he would be allowed to resume duty only if he signed the paper of apology. In cross-examination, he denied the suggestion that be did not go for work ors 27th January 1971. Amanullah stated that he had fallen ill on 9th January 1971 and remained ill till 4th February 1971 after obtaining Fitness Certificate from the Medical Officer. He was allowed to resume duty on 5th February 1971. In cross-examination, he denied the suggestion that he had not reported for duty. Sultane Room stated that he reported on duty on 27th January 1971, but he was asked to sign an apology letter by the Jamadar. He again went to reseme duty on 17th April 1971, but he was not allowed to do so. It was also suggested to him in cross-examination that he did not -go- to resume duty on 27th January 1971. Lastly Kaki stated that he reported for duty on 27th January 1971 but was asked to sign an apology letter by the Jamadar. He again reported for duty on 17th April 1971 and was issued Attendance Card to report for duty at 3 p.m. He stated in his affidavit that later on he was told that he was to work as a badli, Which he was not prepared to accept. He has not been cross-examination in respect to his statement that he was asked to work as badli. I would accept the statements of Amanullah, Sultane Rome, Hazrat Ahmad and Kaki, that they had gone to report for duty on 27th January 1971 or 17th April 1971 but they were not allowed to do so. They are to be re-instated. So far as the question of wages is concerned, in the circumstances of the present case I award them wages from 4th October 1971 the date on which the learned Labour Court hive its award, till the date that they are re-instated.
40. I have gone through the charge-sheet and the Enquiry-Report regarding the workmen, who have been dismissed for having gone on an illegal strike. These workman have filed affidavits arid have also been cross-examined on behalf of the Management. They deny to have gone on illegal strike and also stated that they had gone to report for duty on 27 January 1971, but they were asked by the Jamadar to sign a paper which purported to be an apology letter, before they could` tie allowed to work. So far as the question of strike is concerned, I have already held that the workmen had gone on strike, which was illegal. So far as the question of apology letter is concerned I agree with the learned Labour Court that this is a afterthought. No such plea was taken in the application under section 34 of the by Collective Bargaining Agent. In these circumstances, do not see any reason to take a different view than what has been taken, by the learned Labour Court.
41. In the result, I would modify the award in respect of Sultan-e-Rome, Hazrat Ahmad, Amanullah and Kaki, who are to he re-instated forthwith. They will be entitled to their wages from 4th October 1971 till the date that they are re-instated. The award by the learned Labour Court was given on 4th October 1971.
42. While disposing of these appeals I must observe, considering the plight of the workmen, that the Labour Courts and the Appellate Tribunal, however, much they may desire, are not expected to be guided by the straightened circumstances of the workmen, but only by law. In the circumstances of the present case, however keeping in mind the attitude of the Management by keeping the door open from the to the for the workmen to resume duty, I hope the Management will be generous to repeat the offer. My advice to the workmen is that if the offer is repeated, they should accept it forgetting the past. The Management must be aware of the effort that the present Government is making to overcome economic difficulties. Harmonious relationship between the labour and the Manage--ment, I am sure, will improve the economy of the Conntry. It is my pious hope that the Management will do its best to re-instate as many workmen as possible. th