DECISION This is an appeal against the order of learned Sindh Labour Court No,VII at Sukkur, dated 3-11-1988, whereby the grievance application of the appellant was dismissed.
2. The brief facts leading to this appeal are that the appellant claimed to be appointed as General Clerk in the respondents establishment and his services were governed by the statutory Standing Orders, but, his services were terminated on 3-44986, in order to punish him for trade union activities in violation of provisions of section 47 of the Industrial Relations Ordinance, 1969, when Industrial Dispute No,4/1985 was pending before the IInd Labour Court at Karachi for adjudication.
After serving grievance notice upon the respondents, the appellant filed grievance petition which was resisted by the respondents on the ground that it was not maintainable and that no grievance notice under section 25-A, I.R.O. 1969 was served upon the branch manager. It was further averred that the establishment of Brooke Bond was governed by the Shops & Establishment Ordinance, 1969, as it was employing less than 20 workers and, therefore, the Standing Orders Ordinance would not be applicable. It was further averred that the appellant was found guilty of misconduct in the domestic enquiry and was rightly dismissed from service and was not punished for any trade union activities.
3. The learned Labour Court came to the conclusion that because only 5 persons were working in the concerned branch of the respondents where the appellant was employed at the relevant time, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable and further that the proper enquiry, after issuing charge-sheet, was held by the respondents. The main contention of the respondents is that 20 persons were not working in the branch of the respondents where the appellant was working, therefore, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would not be applicable. It is further contended that the branch where the appellant was working was registered under the Shops & Establishments Ordinance, therefore, the application under section 25-A, I.R.O. 1969, would not be maintainable. The appellant has admitted in the cross examination that in the branch 10 persons were working. He further stated that total number of workers under Branch Manager including salesmen and godown keepers of other godowns was 60 to 70 in the year 1986-87. It appears that the I respondent is a big company having branches at various places. The question that requires for consideration is whether each branch could be considered as a separate establishment or the company as a whole would be considered as one establishment.
4. In the case of Muhammad Aqil v. Sind Labour Appellate Tribunal reported in 1978 PLD Kar. 649, a Division Bench of the Sind High Court interpreted the 'establishment' as defined in the Industrial Relations Ordinance, 1969, as under:- "Establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service."
Their Lordships, therefore, held that-- "from the aforesaid definition it would appear that an employer may have more than one establishment, for example, offices in a commercial area, shops in business area or one or more industrial units in an industrial area and the expression 'establishment' would include not whole of the establishments of an employer but each of them individually. That an employee may have more than one establishments for carrying on his industry or for the purpose of his industry is clearly envisaged by provisions contained in the then section 22-A of the Industrial Relations Ordinance, 1969, reproduced hereunder: "22-A. Collective Bargaining Agent for institutions with more than one establishment.--(1) Where an employer carrying on an industry has, for the purpose of that industry, more establishments than one, any registered Trade Union which fulfils such conditions as may be prescribed in this behalf may make an application in such manner and to such authority as may be prescribed for being declared as the Collective Bargaining Agent in relation to all such establishments and, upon such an application, there shall he determined in the prescribed manner a Collective Bargaining Agent for such establishments.
(2) Where a Collective Bargaining Agent has been determined under subsection (1) for the establishments referred to therein, the Collective Bargaining Agent determined, if any, under section 22 for any one or more of such establishments shall not undertake collective bargaining in respect of matters relating to the terms and conditions of employment applicable to workmen employed in any of such establishments."
5. Accepting this view, a Division Bench of Sind High Court in the case of Messrs Ihsan Sons Ltd. v.
Abdul Razzak Habib and others, reported in 1987 PLC 390, observed as under:.
6. "We are of the view that the mere fact that a company, individual or association of individuals runs or sets up separate establishments at different places would not authorise treating all such establishments to be one establishment either for the purposes of the Industrial Relations Ordinance or the Standing Orders Ordinance even if there was a provision for transfer of staff from one establishment to another. The petitioner has also invited our attention to the provisions of Sind Shops and Establishment Ordinance. He has also drawn our attention to the certificate issued by the competent authority in this behalf. This clearly shows that the head office is separate and distinct entity. In view of this we accept the second contention of the learned counsel for the petitioner and hold that the head office is a separate and distinct entity.
6. In 1979 PLC 362, a learned Single Judge of Sind High Court at Karachi observed that "workman having worked as mechanic in a workshop employing four workers in all, is not an employee of Industrial or Commercial establishment within meaning of Standing Orders Ordinance. There was no provision in the Shops and Establishments Ordinance for the reinstatement of the employee whose services have been terminated though under section 12 of the said Ordinance, there is a specific forum where a claim has to be filed for one month's wages in lieu of notice." The learned Counsel for the appellants has relied upon the cases reported in PLD 1977 SC at 237 and 383 wherein their Lordships have held that the salesmen of the Brooke Bond Pakistan Limited were workers within the definition of workman as defined in I.R.O. 1969. However, their Lordships have not discussed the question as to whether a workman working in different establishment of Brooke Bond Pakistan Ltd. would be considered to be working in one establishment or separate establishment.
As a matter of fact, this question was not in issue before their Lordships in the above cases.
7. The evidence of the witness, Muhammad Afzal of the respondents that in the branch where the appellant was employed less than 20 workers were employed and that that establishment was registered under Shops & Establishments Ordinance, 1969, has not been challenged or shaken in the cross-examination of this witness. In view of section 1(4) the Standing Orders Ordinance would be applicable only to the establishment where 20 or more workers were employed on any single clay in a year and, therefore, it would not be applicable to the establishment of the respondents where the appellant was working at the relevant time. The view taken by their Lordships of the Sind High Court is binding upon this Tribunal.
8. In view of the above circumstances and legal position, I find no merit in this appeal which is accordingly dismissed