1. All these applicants were permanent workers in the respondent Mill. In October 1984 the workers of the mill formed a trade union under the name and style "Modern Textile Mills Employees Union" and after its registration, it applied for referendum. On coming to know about the formation of this union, the management started harassment amongst the workers and irk order to crush the union, it started contracting out sections of the mill to out side contractors. With a mala fide intention to crush this union, it terminated lot of workers on 10-3-1985 on a fictitious and a false ground of accumulation of damaged cloth. According to the applicants, in fact the termination was effected holding the applicants guilty of producing damaged and defective cloth and so the termination was in fact a dismissal and which was not warranted without any charge-sheet and enquiry etc. The Labour Directorate held necessary enquiries and came to the conclusion that the action of the management was wholly illegal. However, the management had re-opened the Weaving Section from 2-6-1985 but the applicants and others were offered only a fresh employment instead of re- instating them with continuity of service etc. A grievance notice dated 2-6-1985 was accordingly sent and then the applicants filed the present petitions for their re-instatement with back benefits.
2. The respondent in its reply statement questioned the jurisdiction of this Court and also maintainability of these petitions. On merits, it has been pleaded that after forming the union the applicants and others started harassment and incited the mill workers to stage agitation against the management. They also disallowed and stopped the contractor's labour with the result that the work in Folding/ Doubling/ Reeling and Bora Packing Departments was seriously affected and un- amended products accumulated. Due to the coersive activities of the applicants and others the respondent had no alternate but to close the Weaving Section. It has also been pleaded that due to the damaged cloth its sale in and outside the Country was stopped and so it was impossible for the respondent to keep running the Weaving Section any more. The termination of the applicants and others was thus quite proper and legal. It has also been pleaded that after negotiations with the CBA, an agreement dated 28-4-1985 was concluded and as per this agreement all the workers were re-employed with effect from 2-6-1985 onwards. Since the applicants had accepted this re- employment, they have no cause of action to bring the petitions.
3. Since the facts and grounds in all these cases are common, by consent of the parties all these cases were consolidated by order dated 7-5-1986. Accordingly, evidence was only recorded in the case of Mubarak Ali in Application No.76 of 1985 and this evidence is to be read as evidence in all these cases.
4. On behalf of the applicants only Mubarak Ali was cross---examined, though all the applicants have filed their individual affidavits in evidence. On behalf of the respondent M/s Syed Sarwaruzzaman General Manager, Major (Retd.) Sagheer Ahmad another General Manager and Col. (Retd.) Kazi Rameezuddin Manager, were examined. After evidence, I have heard Mr. M. Bashir Awan, Advocate for the Applicants, and Mr. Masood Ahmed Shaikh, Representative for the Respondent. I have also minutely examined the entire material on record.
5. It has been contended by Mr. Masood that these petitions are not maintainable on the sole ground that the applicants had voluntarily, as also in pursuance of agreement dated 28-4-1985, accepted fresh employment on 2-6-1985. According to him, this fresh appointment has confirmed that the previous termination, order was not only proper but was accepted by the applicants. Mr. Bashir, on the other hand, submits that by the present petitions the applicants have questioned the legality of the termination letter dated 10-3-1986 within the stipulated time and so these applications are quite maintainable. He proceeded to argue that the respondent has failed to prove that the applicants have accepted the first termination as also the fresh employment with effect from 2-6- 1985. In fact, according to him, the management has attempted to force the applicants to accept their employment afresh without continuity of service and has mis-interpreted the agreement dated 28-6-1985. He also submitted that the entire action of the management is based on mala fide and that even the agreement dated 28-4-1985 cannot be said to have been executed with a free will.
6. I have examined the evidence on record. Applicants were initially terminated on 10-3-1985 and they have challenged their termination through these petitions by sending grievance notices on 2- 6-1985, i.e. Within 3 months of the stipulated period. The management has pleaded that the applicants were employed afresh with effect from 2-6-1985. The record however does not prove the issuance of any appointment letter to the applicants or the service of such letters on them. The witnesses of the respondents have also showed their ignorance if the appointment letters with condition of re-employment were ever issued or served on the applicant. They also could not produce any documentary proof of the service of appointment letters. In so far as the submission of applications for fresh employment is concerned, the applicants have specifically denied making such applications and the respondent has also failed to prove that such applications were preferred by the applicants themselves. Assuming that such applications were signed by the applicants, though this fact has also not been established, fact remains that this application form was filled in by the management itself and if in it fresh employment has. Been mentioned, in view of the background of these cases, it cannot be argued that the applicants have themselves applied for re-employment and had accepted the same. Exh. R/41 in Mubarak's case shows the date of employment as 5-6-1985 though the employment was said to have been given on 2-6-1985. If the employment was given to the applicants on 2-6-1985, there was no necessity to issue appointment letters on 6-6-1985. This anomaly has also not been) explained and clarified on behalf of the respondent. In this view of: the matter, it cannot be urged on behalf of the respondent that the applicants have accepted their employment afresh from 2-6-1985 and so they cannot maintain these petitions. The effect of agreement dated 28-4-1985 will be discussed hereafter. The plea of non---maintainability of the petitions is thus repelled.
7. Reverting to the merits of these cases I would state here that as per the pleadings of the respondent it is quite evident that the termination of applicants was effected because of their alleged illegal activities, detailed in paragraph 7 of the reply statement read with paragraphs 6,7, 11 and 12 of the affidavit of Mr. Sarwaruzzaman. If these averments are examined it is crystal clear that the formation of the union by the applicants was not at all acceptable and so it had no option but to dispense with the services of all such persons who were challenge to the management. Since they could not make out any case of misconduct against them, they had to create a ground of accumulation of cloth to have an easy way to get rid of those workers. This is also evident from the trend of cross examination of the witnesses of the respondent.
8. The plea of the management to justify termination is apparently one, and which has repeatedly been advanced by Mr. Masood throughout the proceedings, that the un-mended cloth to the tune of Rs. 30/35 Lacs had accumulated in the mill premises and its sale in and outside Pakistan had been stopped. This ground has to be proved by the respondent and I am of the firm view that the management has miserably failed to prove it and on the contrary, it has been established by the evidence of the respondent itself that all this was done only to crush the union in the establishment.
9. The star witness of the respondent is Mr. Sarwaruzzaman, General Manager, and who has signed the reply statement as well. He showed his complete ignorance about the factual position but since he has been examined by the respondent as its main witness, his entire evidence would be of much importance. In reply to one question in his cross-examination, he states "it is incorrect that 400 persons were removed on the ground that about 5 Lacs meter damaged cloth was lying in the stock and was not saleable in market". This assertion/ denial on the part of Mr. Sarwaruzzaman would show that there was no stock of cloth and that the termination of 400 workers was not on the ground of accumulated stock or that the cloth was not being sold out. This reply alone has shattered the whole case of the respondent. I would proceed further and would find that this very witness had also stated that 5 Lacs meter cloth would be produced in about 20/25 days with an average of 25,000 meters per day. According to him, if machine produces defective cloth, its production 4s stopped immediately and the production cannot be re-started till defect is removed.
10. In view of his evidence, if the machines were producing defective cloth, it should not have been permitted to be accumulated and arrangement should have been made to first sort out the defects. This was however not done and as asserted by applicant Mubarak, the concerned workers who check and sort out the defects were removed and the cloth was deliberately stored to make out a case for the termination of the workers who formed the CBA. The other witness Mr. Rameezuddin has also admitted that none of the workers was charge sheeted when they were stopping the contractor's labour or were inciting the other workers to stage the agitations against the management. He also could not produce any complaint of the contractor complaining that the applicants and others were stopping its labours from entering into the mill. This also confirms that in fact there was no apparent grievance against the applicants or workers and that the accumulation of stock was not due to the workers of the mill. Even, as stated above, the cloth was allowed to be accumulated by the management itself to remove the workers. The management has failed to produce any documents whatsoever to show that the accumulation was in the routine course and that it had lost the market and that its product was not accepted any where or it could not send to the market for sale. It has also produced no evidence whatsoever to show that there was none amongst the terminated workers who could sort out the un-mended cloth or that the accumulation took place because of the non---cooperation of the workers. Merely showing some complaints to SHO etc., would not be sufficient to show that the workers had been responsible for such accumulation. Moreover, such reports relate to the period after termination and if it is relied upon by the management, the applicants have also rightly referred to various complaints appeared in newspapers as also the report of the Labour Directorate which specifically held the impugned action as wholly illegal and mala fide. Without going further into the evidence on record, I would conclude by referring to important admission made by the General Manager of the respondent Major (Retd.) Sagheer Ahmed to the effect that the actions of the management were initiated and taken with a view only to crush the union activities in the mill. This specific assertion any admission of the respondent witness has not been assailed on behalf of the respondent nor this witness was declared hostile. This specific admission shattered the whole case of the respondent and it has been proved to the hilt that the impugned termination of the applicants was actuated by mala fide and the termination in fact amounted to dismissal and which was without any enquiry etc. The judgment reported in 1976 SCMR 448 can thus mutatis mutand is be made applicable to the facts of these cases.
11. A.E./958/Lb.S