By this judgment I propose to dispose of C. P. No. 12 of 1986, C.P. No. 29 of 1986 and C.P. No. 30 of 1986.
2. The common facts giving rise to these petitions are that the respondent No. 2 in each of these petitions (hereinafter referred to as 'the employer') filed an application before the Third Labour Court, Karachi (respondent No. 1), under Standing Order 11-A, inter alia praying, that the employer be given permission to close down its establishment and terminate the services of its employees on payment of their legal dues. Although in the proceedings before the learned Labour Court, the Collective Bargaining Agent (respondent No. 3) was made a party, but the petitioners, who were employed as workmen in the establishment, filed applications before the Court for being imp leaded as intervenors in the case. Such applications were, however; rejected by the learned Labour Court, holding that for determination of the employers case under Standing Order 11-A individual workers could not be necessary or proper parties.
3. Being aggrieved by such orders the petitioners have now impugned the said orders in these constitutional petitions.
4. In the counter-affidavits respectively filed on behalf of the employers, it has been contended that Standing Order 11-A nowhere provides that the C. B. A. Union or individual workmen are to be made parties to the proceedings there under, therefore, the prayer made by the petitioners was completely misconceived. It has also been contended that in any case, the petitioners were being represented by their collective bargaining agents which was in terms of section 22(12)(b) of the I.R.O., therefore, the petitioners had no genuine grievance and the prayer made by the petitioners for being joined as intervenors was mala fide and was made with a view to delay the proceedings pending before the learned Labour Court.
5. I have heard Mr. S.A. Wadood and Mr. M.L. Shahani on behalf of the petitioners and Mr. Khalid Anwar, Mr. Munawar Malik and Mr. Ali Amjad on behalf of the respondents.
6. The learned counsel appearing on behalf of the petitioners have raised the following contentions: (1)that since the question of termination of employment of the petitioner was involved in proceedings before the Labour Court, the petitioners were necessary parties and as such they should have been joined as intervenors to such proceedings, (2)that the right to continue to be in service was guaranteed to the individual workman under the law, therefore, the C . B. A . Could not espouse the petitioners' cause before the Labour Court and (3)that refusal by the Labour Court to join the petitioners as intervenors in the proceedings before it amounted to violation of the principles of natural justice as nobody could be condemned unheard.
Reliance was placed by the learned counsel on Vattam Ramakrishnayya v. Vattini Satyanarayana and others AIR 1929 Mad. 291, Haji Abdul Wahab v. Karachi Municipal Corporation PLD 1956 Kar. 391, National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965 (W.P.) Kar. 633, Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCMR 714, Islamic Republic of Pakistan v. Mr. Abdul Wali Khan PLD 1975 SC 463, Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak P L U 1959 SC (Pak) 45, Karachi Pipe Mills Ltd. v. Sind Labour Appellate Tribunal and 2 others PLD 1984 Kar. 503, Ghulam Rasool and 2 others v. Additional Settlement Commissioner, Central Settlement Cell and others 1985 SCMR 1832 and Messrs Faridsons Ltd., Karachi v. Government of Pakistan PLD 1961 SC 537.
7. Mr. Ali Amjad, learned counsel appearing for the C. B. A., respondent No. 3 in all these petitions did not contest the case as put forth on behalf of the petitioners, but on the contrary supported the contentions raised on their behalf. Thel petitions were, however, vehemently opposed by Mr. Khalid Anwar and Mr. Munawar Malik, learned counsel appearing on behalf of the employers. According to Mr. Khalid Anwar, the power exercised by the Labour Court under Standing Order 11-A is a statutory power as compared to judicial power, and since no provision exists in Standing Order 11-A, providing for right of hearing to an individual workman, the Labour Court was under no obligation to join the petitioners as parties to the said proceedings. Reliance was placed by the learned counsel on Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681. The contentions raised by Mr. Khalid Anwar were fully supported-by Mr. Munawar Malik who adopted the same arguments as advanced by Mr. Khalid Anwar.
8. Turning to the cases cited on behalf of the petitioners, in AIR 1929 Mad. 291 it was observed by the High Court of Madras that what the Court ought to see, when a person applies to be made a party to a suit, is whether there is anything which cannot be determined owing to his absence or whether he will be prejudiced by his not being joined as a party. In Haji Abdul Wahab v. Karachi Municipal Corporation it was held that even third parties who were interested in the dispute could be joined as parties to the dispute under Order 1, rule 10(2), C.P.C. In National Bank of Pakistan v. Syed Muzammal Hussain, the erstwhile High Court of West Pakistan, Karachi Bench, while interpreting the provisions of Order I, Rule 10(2), C.P.C., held that a person is said to be legally interested in the matter if he can say that it may lead to a result that will affect him legally. Similar view was taken by the Supreme Court in the case of Ghulam Rasool and 2 others, Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others and Islamic Republic of Pakistan v. Mr. Abdul Wali Khan.
In Karachi Pipe Mills Ltd's case it was held that since the rights guaranteed or secured to a worker under any law or award or settlement have to be enforced in accordance with the provisions of section 25-A and not section 34 of the Industrial Relations Ordinance, the C.B.A. Cannot espouse the cause of such workman. In Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak and Faridsons Ltd., Karachi v. Government of Pakistan, it was held by the Supreme Court that it was the requirement of the principles of natural justice that no one could be dealt with to his material disadvantage without an opportunity of being heard and making his defence. However, in the case of Collector, Sahiwal and 2 others, cited by Mr. Khalid Anwar, it was held that if there was no mandatory provision in a statute for notice or a provision for notice was merely of directory nature, then, whenever violation of the principles of natural justice is alleged, the Court may first call upon the party alleging the same to prove prejudice.
9. Whatever be the case, but the most point in these petitions is, whether any vested right of the petitioners could be affected by the proceedings pending before the Labour Court. However, before determining the same, it would be worthwhile to reproduce Standing Order 11-A which is embodied in the schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 as follows: -- "11-A. Closure of establishment.--Notwithstanding anything contained in Standing Order 11, no employer shall terminate the employment of more than fifty per cent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.
Explanation--Close down in this Standing Order includes lay-off of workmen beyond fourteen days where such lay-off results in closure of an establishment but does not include lock-out declared, commenced or continued in accordance with the provisions of the Industrial Relations Ordinance, 1969 (XXIII of 1969)."
10. Before Standing Order 11-A was inserted in the Schedule to the above-said Ordinance, the employer could close down the whole of his establishment without prior permission of the Labour Court in that behalf. However, after insertion of the said Standing Order in the above-said Ordinance by section 6 of Ordinance XXIII of 1973, perior permission of the Labour Court became necessary. The words "terminate the employment of more than fifty per cent of the workmen------ ------.." were inserted in 1976 by further amendment of Standing Order 11-A by Act XI of 1976.
11. It will thus be seen that but fur Standing order 11-A, the employer was at liberty to close down his entire establishment or terminate the services of more than fifty per cent of the workmen employed therein. Even after insertion of Standing Order 11-A in the above said Ordinance the employer is at liberty to terminate the services of fifty per cent of the total number of workmen employed by him. The purpose of Standing Order 11-A, therefore, does not appear to be to prevent the employer from terminating the services of his workmen arbitrarily, but to verify the bona fides of the employer vis-a-vis his need to close down the establishment, if the intention was to safeguard the employment of workmen then there is no doubt in my mind, that the legislature would have imposed a complete embargo on termination of services of all the workmen employed in the establishment without permitting the employer to terminate the employment of fifty per cent of his workmen. In other words, the legislature could not have laid down a dual policy for two different sets of workmen by permitting the employer to dispense with the services of fifty per cent of his workmen without prior permission from the Labour Court, but making it incumbent on the employer to seek such permission in respect of the rest of the workmen. In South British Insurance Employees Union v. The Sind Labour Court No. 4 and others 1975 SCMR 49, it was held by the Supreme Court that application to Labour Court for permission to close down the establishment need not be the first step in the process but the same could well be the last step in the process. It, therefore, consequently follows that the law as it then was permitted the employer to terminate the employment of almost all of its workmen and then apply to the Labour Court for permission to close down the establishment.
12. In view of such a position, can the petitioners claim any vested right to be made a party in the proceedings before the Labour Court? I have already pointed out, the purpose of inquiry before the Labour Court appears to be only to determine whether the employer has bona fide reasons to close down the establishment or terminate the services of more than fifty per cent of the workmen employed by him. There is therefore, no vested right of the petitioners which was likely to be affected by the proceedings pending before the Labour Court. Ordinarily, the employer should be at liberty to close down his establishment and terminate the services of his workmen if the exigencies so require. However, it appears that the legislature has imposed certain restrictions on the right of the employer to take such action, making prior permission of the Labour Court necessary in this respect. It is noteworthy that Standing Order 11-A does not provide for giving of notice to the individual workmen concerned or even the C.B.A., therefore, the object behind joining the C.B.A. As party to the proceedings before the Labour Court appears to be to enable the Labour Court to ascertain true facts so that nothing is concealed there from and not that it may espouse the cause of individual workers. No doubt, the employer has sought permission from the Labour Court to terminate the employment of all the workmen working in the establishment, but when such permission is granted and as a consequence thereof, the employment of the petitioners is terminated, the petitioners have an appropriate remedy in the form of section 25-A of the I.R.O. If they feel aggrieved by the termination of their employment. The observations made by the Supreme Court in 1971 SC M ft 681, to which I have just referred, therefore, apply in full force to the facts of the instant petitions.
13. I am, therefore, firmly of the view that no vested right of the petitioners is likely to be affected by the proceedings pending before the Labour Court and the learned Labour Court has rightly rejected 1 their prayer to be joined as parties to the proceedings before the same.
14. For the aforesaid reasons there appears to be no force in these petitions and the same stand dismissed. There will, however, be no order as to costs, in view of the nature of points involved in these cases.
M. Y. H.