DECISION These six appeals are directed against the single order of the learned Sindh Labour Court No, 1, dated 4-1-1989. As the points of law and fact involved in all the six appeals are same I will dispose them of with this single decision.
The respondents/workmen Peer Khan, Mohammad Nabi, Mohammad Miskeen and Kala Chand claim to be workmen of employer M/s. Bismillah Silk Industries. They alleged that they formed a Union and filed the application for the registration before the Registrar of Trade Unions on 8-4-1986 and sent such intimation by registered post to the employer whereupon the employer called them on 10-4-1986 and asked them to desist from forming their Trade Union and on their refusal their services were terminated by oral order. Aggrieved by this action of the employer the above-said respondents/workmen filed two grievance petitions bearing No, 12 of 1986 and 157 of 1986 before the learned Labour Court under section 25-A claiming their reinstatement and back benefits. Prior to that on 15-4-1986 they sent notice by registered post to the employer on their address which was returned by the Postal Authorities with the endorsement that the occupants of the premises, shown in the address, state that there was no factory of such name in the premises . The notice issued by the learned Labour Court on the employer was first returned unserved by the bailiff but next time it was accepted and one Mohammad Farooq appeared before the learned Labour Court and raised objection, that there was no factory by the name of Bismillah Silk Industries in the premises bearing Plot No, ST/43, Block 7, Federal 'B' Area, Karachi but there was Naheed Silk Industries in the said premises. The learned Labour Court, however, allowed the grievance petition of the aforesaid respondents/workmen and ordered their reinstatement without back benefits.
Aggrieved by this order, said Mohammad Farooq filed Appeals Nos. 24, 56, 57 and 58, all of 1989 against the order of reinstatement of aforesaid respondents. Respondents Kala Chand, Mohammad Nabi and Peer Khan filed Appeals Nos. 70 and 71 of 1989 against the order of the learned Presiding Officer denying them back benefits.
3. I have heard Mr. Mohammad Khursheed Ahmed Siddiqui for Mohammad Farooq and Mr. S.P.
Lodhi, representative for the workmen and also gone through the record and proceedings of the case.
4. All the four workmen filed affidavits in support of their claim and thereafter two grievance petitions were amalgamated and ordered to be tried together. It appears that three workmen tendered themselves for cross-examination by learned counsel for Mr. Mohammad Farooq, while Mohammad Miskeen, respondent did not tender himself for cross-examination. The respondents also examined Mr. Azam Panhwar, Controller Billing of K.E.S.C. and Abdul Waheed.
5. The main objection of Mr. Khursheed Ahmed Siddiqui is that there was no service of grievance notice upon the employer as the grievance notice sent by the registered post was returned undelivered. It may be noted that the employer himself viz. Bismillah Silk Industries have not come in the Court to deny the service of notice or the relationship between the parties or the contention of the workmen that they were removed from service by oral order. In this matter the main question for consideration before the learned Labour Court was whether Bismillah Silk Industries existed on the given address or not. This appears to be the question at issue in appeal even before this Tribunal.
6. The respondents/workmen have stated on oath in their affidavits-in-evidence that Bismillah Silk Industries does exist on the given address and that they were the workmen of said Industries till their services were terminated by oral order on 12-4-1986. Mr. Azam Panhwar, Controller Billing of K.E.S.C. has stated, that the said Industry is situated on the said address and two meters were installed at this plot in the name of respondent Industry on 30-1-1976 and that position continued till the day he was examined on 17-4-1987. He has produced extract of record Ex. A.W. 2/1 and statement of account pertaining to January, 1987 as Ex. A.W. 2/2. Abdul Waheed, who was examined by the respondents has not supported the respondents and has stated, that there was no such Industry on the said plot. He has been declared 'hostile' and was allowed to be cross- examined by the workmen. It may also be pointed out that as against this positive evidence on oath of the workmen and the documentary evidence produced by Mr. Azam Panhwar there is no evidence on oath led by the employer or even by the petitioner/intervenor Mohammad Farooq.
Even he did not come to give evidence on oath that said Industry does not exist in the said plot.
7. Mr. Khursheed Ahmed Siddiqui has relied upon the Certificate of Registration issued in favour of Naheed Industries by the Shop Inspector, Karachi Division which was produced alongwith the objection. The objection of Mr. Mohammad Farooq filed in writing, in reply to the grievance petition, cannot be taken into consideration, as the same cannot be treated as evidence because neither these objections are verified on oath, nor Mohammad Farooq has examined himself on oath or tendered himself for cross-examination. This photstat copy of the Certificate issued by Shop Inspector has not been properly proved but has simply been produced alongwith objections of Mohammad Farooq. Be that as it may, this certificate shows, that Naheed Silk Industries was registered on 13-3-1986 and 'down-below' the date given is 13-4-1986. It further shows, that this factory was registered in Shed No, 2 of Plot No, ST/43 implying thereby that there are other Sheds in the said plot in which Naheed Silk Industries is not situate. Even from this certificate, which is not free from doubt, it cannot be said that Bismillah Silk Industries do not exist in the other Sheds of this plot or it did no exist on the entire plot prior to the alleged registration of Naheed Silk Industries in March or April, 1986. As already pointed out, there is no positive evidence on oath by Mohammad Farooq and the employer has not chosen to contest the petitions. Mr. Khursheed Ahmed Siddiqui has relied upon the statement of Abdul Waheed who has denied existence of Bismillah Silk Industries. According to respondents Abdul Waheed was also employee of the employer and it is argued by Mr. S.P. Lodhi and such question was also put to the witness that he turned hostile at the instance of Mohammad Farooq or the employer.
8. Mr. Khursheed Ahmed Siddiqui relied upon a decision of this Tribunal in Appeals No, 39 to 47 of 1987 filed by 9 workmen against Bismillah Silk Industries situated on Plot No, ST-43 Block 7 of Federal B Area, Karachi. It appears from the decision that the respondent establishment did appear before the Labour Court and successfully resisted the applications on the ground, that there was no relationship of master and servant between them. It does not appear from the decision, that the establishment denied its existence. In these matters also, the workmen claimed that their services were terminated by the establishment on 1986. However the appeals of workmen were dismissed because appellant the workmen had admitted in the cross-examination that they were not employees of respondent establishment and did not know why the petitions were filed and that the same did not bear their signatures. This decision impliedly shows the existence of Bismillah Silk Industries on the said plot as the establishment appeared and resisted the applications in 1986 before the Labour Court and in 1987 before this Tribunal. Therefore the conclusion of the learned Labour Court, that the said Bismillah Silk Industries did exist on the aforesaid plot does not appear to be incorrect.
9. Having come to the conclusion, that the establishment did exist on the aforesaid address, the question that require consideration is whether the grievance notice sent by registered post on the said address can be considered to have been properly served. It is not disputed, that the grievance notice was sent by registered post on the said address, but it was returned back with the endorsement that the occupants of said plot stated that the aforesaid Industries do not exist there.
Such a statement by either establishment or their employees present on the plot, while refusing to accept the registered envelope would amount to refusal of acceptance of the notice and would be considered as proper service. The workmen do not have any other agency to effect service upon the employer, except through registered post which they did send but which was refused by the employer or its employees. In any opinion there is sufficient compliance of the provision of service of notice as laid down in section 25-A, I.R.O., 1969. Having come to the conclusion that there was service of notice, I need not discuss the case-law cited by Mr. Mohammad Khursheed Ahmed Siddiqui, that no grievance application can be filed without service of notice. Mr. Khursheed has further contended. that workman Mohammad Miskeen did not tender himself for cross- examination therefore his case should have been dismissed. It may be pointed out, that Mohammad Miskeen had filed the grievance petition jointly with two other workmen namely Peer Khan and Mohammad Nabi, who both have been cross-examined. Furthermore the establishment did not appear to cross-examine that said Mohammad Miskeen and therefore his failure to tender himself for cross-examination by some other person, who claims to be intervenor would not adversely affect the claim of Mohammad Miskeen against the establishment of employer.
10. Mr. Khursheed Ahmed Siddiqui has also relied upon the order of the learned Labour Court in a Criminal case filed by workman Peer Khan under section 53(1) of I.R.O., 1969 against Mr. Farooq and two others for terminating the services of the office-bearers of Trade Union during the pendency of the registration proceedings of Union before the Registrar. The learned Presiding Officer was of the opinion that the complainant had failed to prove his case against the accused and, therefore, acquitted them. Mr. Khursheed was unable to point out in this judgment any finding by the learned Presiding Officer that Bismillah Silk Industries did not exist. The mere fact that one of the workmen could not prove the criminal charges against Mohammad Farooq and two others would not disentitle them from seeking remedy under section 25-A against their employer.
11. The contention of the workmen that they were employees of the establishment and that their services were terminated by oral order has not been rebutted by any other evidence on record. The workmen have averred in their grievance notice, that establishment employed 22 workers meaning thereby that they did not employ 30 workers. Mr. Khursheed contends, that under the circumstances Standing Orders Ordinance would not be applicable. Under section 1(4)(a) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 it would be applicable to every industrial or commercial establishment employing more than 20 workers.
However under second proviso Standing Orders 10-B and 11 and clauses (6) and (8) of Standing Orders 12 and 15 shall not apply to any establishment employing not more than 49 persons. Thus Standing Order 12(3) would be applicable which provides that services of no workman shall be terminated without any order in writing giving reasons for termination. Termination of service of respondents was therefore illegal and barred under Standing Order 12(3).
12. For the aforesaid reasons the appeals Nos. 24, 56, 57 and 58 of 1989 filed by the establishment or Mr. Mohammad Farooq are dismissed.
13. Mr. Khursheed Ahmed Siddiqui contended that the workmen were not entitled to back benefits because they have not given evidence to the effect that they were sitting without job. He had relied upon such decisions of learned Labour Appellate Tribunal Punjab reported in 1988 PLC at pages 267 and 511. With due respect to the opinion of learned Labour Appellate Tribunal Punjab if services of a workman are illegally terminated, he is entitled to back benefits. It may also be pointed out that in their grievance petition the respondents have specifically claimed back benefits. No doubt there is no evidence to show, that they were not gainfully employed during the intervening period, but at the same time there is no evidence that they were gainfully employed. Under the circumstances I allow the appeals filed by the 3 workmen and allow them back benefits.
Mohammad Miskeen has not filed any appeal against the order of learned Labour Court denying him back benefits. The orders of this Tribunal are to be implemented by the employer within one month of the passing of this order.