DECISION ' These are six separate appeals filed by the appellant establishment against a common impugned order, dated 19-11-1987, passed by the Sind Labour Court No, HI at Karachi, who had allowed the grievance petitions of each respondent under section 25-A, I.R.O. 1969, directing their reinstatement in service with 50% back benefits. As, the facts and' legal points involved in all these appeals against common impugned order are same and similar, therefore, I would decide these six appeals by this single Decision.
2. Briefly stated the facts of these cases are that the respondents claimed to be the permanent employees of the appellant establishment for a period ranging from 4 to 16 years on their respective posts and were getting different emoluments. The respondents further claimed that as they were not getting their wages, allowances and other benefits including the facilities as per law and also as per announcements made by the Government from time to time, therefore, they had formed their Union which had annoyed the management resulting in their termination of services on a false pretext of lack of work and funds. The case of the respondents further was that the appellant management asked them to leave the union activities and when they had refused to do so, they were victimized as they were primarily laid off and thereafter their services were terminated and being aggrieved with this action of the management, they had served grievance notices upon the appellant management followed by their individual grievance petitions before the learned Labour Court under section 25-A, I.R.O.
1969.
3. The appellant management resisted all these petitions on the grounds that all the workers on one shift including the six respondents was closed due to financial crisis as their business was reducing day by day resulting in the losses of income and profit and it was not possible for them to continue with the workers of this shift and it was not correct that their services were terminated on account of their union activities. Thereafter, the appellant management claimed that as their services were lawfully terminated, so they could not maintain their grievance petitions which were liable to be dismissed.
4. Both parties filed their respective affidavits-in-evidence and they were duly cross-examined and thereafter, the learned Labour Court has passed the impugned order, hence, the present six appeals.
5. I have heard Mr. Mahmood A. Ghani, the learned Advocate for the appellant management and Mr. Abdul Qadir Jami, the learned Advocate on behalf of the :respondents and have also carefully perused the record and proceedings of the case, as well as the written arguments submitted by both the parties. Mr. Mahmood A. Ghani, the learned Advocate for appellant management has argued that the findings of the learned Labour Court are based more on surmises and conjectures and not on the evidence on record or the law in force and that it had failed to appreciate the evidence of the management where it was specifically mentioned that a huge loss of Rs, 22,43,069 was suffered by it for the year 1985-86. He further pleaded that the respondent deliberately did not care to ask the witness of the appellant management to produce the Balance Sheet in support of their claim of losses, which shows that the respondents were satisfied with the contention of the management. It was further argued that the learned Labour Court had erred in basing its conclusion about the financial position based on the bonus settlement, as it was agreed to be paid on the basis of Standing Order of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1%8 contemplating that if there was profit, bonus will be paid and further that ex gratia payment made by the management cannot by any stretch of imagination be construed as reflective of good financial position. It was also argued that it is incorrect to assume that the production is not correlated with profits. Mr. Mahmood Ghani, the learned Advocate for the appellant management has submitted that to avoid labour unrest and or further losses, management decided to grant financial facilities or make ex gratia A payments in spite of loss and that the grant of these facilities, therefore, ip so facto did not mean that the management had made profits. He contended that in the short recital and preamble of a settlement arrived at between the management and the union which the learned Labour Court has referred in its impugned order, the union itself had conceded that the financial crisis was being faced by the management due to and on account of adverse market conditions, tough competition, lack of orders and surplus age of employees. This is an admitted position that the appellant management was suffering financial losses due to lack of work and funds. To base the conclusion in the impugned order the learned Labour Court had to read the settlement, as a whole and not a clause of the settlement independent of or out of context. I see much force in these contentions of Mr. Mahmood Abdul Ghani, the learned Advocate for the appellant management. The respondents have miserably failed to establish victimization and or mala fide closure of one shift as there is neither documentary nor independent evidence on record except the bare words of the respondents. Therefore, it is crystal clear that the termination of services of the respondents was only account of closure of one shift due to lack of work and financial losses, being an admitted position by both the parties and not on account of victimization due to union's activities as there is also no evidence on record to establish that after the termination and or closure of one shift, the appellant management was getting work done from outside. It is also an admitted position that the B respondents were junior most persons in their respective categories and that no other worker was subsequently employed in their places. There is also an admitted position on record that all the respondents in their evidence before the learned Labour Court had themselves admitted rather confessed that the appellant management was in financial crisis, that after their termination, no other worker was appointed in their place, that after closure of one shift the appellant management was not getting the work done from outside and finally that they did not complain against their victimization on account of union's activities before any competent authority. Mr. Mahmood Abdul Ghani, the learned Advocate for the appellant management in support of his arguments has relied upon the cases, reported in 1964 PLC 593 at 596, 1981 PLC 380 at page 383, PLD 1976 Kar. 824 at page 827, 1966 PLC 306 at page 312, 1966 PLC 41 at page 42, 1961 PLC 1033 at page 1049, 1964 PLC 593 at page 600,1985 PLC 1286 at page 1289, 1965 PLC 216 at page 221, 1969 PLC 459 at page 462, 1979 PLC 59 at page 61, 1975 PLC at page 275, PLD 1978 Kar. 972 at page 978, 1968 S CM R 804 at page 809, PLD 1975 Kar. 279 at page 297 and 1973 PLC 351 at page 353. After a careful perusal of all these authorities I would hold that in view of the facts, circumstances and the legal aspects involved in the present appeals, these authorities are very much applicable and would hold as such.
6. On the other hand, Mr. Abdul Qadir Jami, the learned Advocate for the respondents, in support of his case has argued that the appellant management was given full opportunity to produce their Balance Sheet, Account Books etc., in support of their claim of alleged financial loss, but, they failed to do so and at the appellate stage, they cannot be permitted to make a request for an additional evidence. Further, he submitted that the respondents had also made an application before the learned Labour Court that the appellant management be directed to produce their accounts and that this application was on record. In support of this contention, Mr. Abdul Qadir Jami the learned Advocate for the respondents had referred me to an authority reported in PLD 1976 Karachi at page 169. In view of the admitted position of financial losses being sustained by the management not only by the C.B.A. Union at the time of reaching a settlement, but, also by each respondent in his evidence, I would hold that this authority is not applicable to the present cases, hence, it is distinguishable. Mr. c Abdul Qadir Jami, the learned Advocate for the respondents has further pleaded that in view of the admission of the appellant management that they had given the work on contract and were getting work to be done by the local contractors it is proved that it had made lame excuse of no work, no funds with a sole purpose to victimize the respondents workers. I see no force in this contention of Mr. Abdul Qadir Jami, the learned Advocate for the respondents particular in view of the confession on the part of each respondent during his cross-examination that he had not complained of any victimization before any competent authority and that the appellant management did suffer financial losses on account of lack of work and funds. Taking into consideration the facts, evidence on record, documents on file and all the legal aspects, I would hold that the services of these respondents were rightly terminated by the appellant management only for the reasons of D their financial crisis on account of lack of work and funds and that the respondents could not establish any victimization. As such, the termination of services of all these respondents is upheld and the impugned order is liable to be set aside.
7. For the reasons discussed by me above, I would set aside the impugned order and would allow all these six appeals. The result would be that the grievance petitions of all these respondents under section 25-A, I.R.O., 1969 would stand dismissed. The amount of back benefits, already deposited by the appellant management in each present appeal be immediately returned to the appellant management.