1. Muhammad Naeem and 7 others claimed themselves to have been appointed by one Bashiruddin in the industry known as Muslim Glass Bangles Industry. They continued to remain in the employment of the said industry even after his death. The name of this industry was subsequently changed as New Muslim Glass Bangles Industry and its name was further changed as National Glass Bangles Industry. It has been pleaded that neither the said Bashiruddin nor the present owners ever issued any appointment letters or service documents to any of these applicants. On 8-5-1987 workers of the present respondent were said to have formed a trade union by the name of National Glass Bangles Industry Workers Union and these 8 applicants became its members. It has further been pleaded that on 8-6-1987 they had performed 2 hours duty and at that time the Supervisors of the respondent stopped the applicants and other workers and turned all of them out of the factory. On the following day i,e, 9-6-1987 when they went to perform their duties, they found the factory as locked without any notice whatsoever. Accordingly, President of the said union Mumtaz All took all the workers of the respondent factory to the Labour Directorate, Hyderabad and there he submitted an application to the Assistant Director Labour (Inspection), Hyderabad. A show-cause notice was then issued to the respondent on the same day. It has been contended in the petition that since more than 50 workmen were employed, the termination of the applicants with effect from 9-6-1987 without any written order was violative of the provisions of Standing Orders Ordinance 1968. They have also alleged that they were also refused their earned wages from 1-6-1987 to 9-6-1987. Accordingly, they sent grievance notices and then filed the present petition for their respective reinstatement with consequential benefits.
2. Another petition has been filed by 31 applicants. Their plea is also the same as has been detailed hereinabove. However, in this petition they have pleaded that they were served with a joint termination order dated 4-6-1987 by post. This termination order was said to have been despatched on 11-6-1987 giving effect from 9-6-1987. According to this notice, 45 workers were terminated. Considering this as wholly illegal and unwarranted, a joint grievance notice was sent by them on 20-7-1987 and since their grievance was not redressed they have filed the present petition for their reinstatement with back benefits. Their grievance is that they were in fact locked out without any lawful justification; joint termination order was violative of the provisions of S.0.11-A; that though 45 persons have been shown to have been terminated but in fact only the members and the office-bearers of the union were actually terminated while rest were otherwise retained in the employment; the reasons advanced for such termination are false and untenable and so the impugned termination was not warranted by law.
3. In the reply statements filed in both these petitions the respondent has disowned 8 applicants of application No,1/1987 and has pleaded that except Muhammad Naeem, none of these applicants were ever employed by the respondent. In so far as Muhammad Naeem is concerned, he had worked from 2-3-1985 to 16-10-1986 and had resigned of his own accord and had also collected his full dues. Since the respondent has not admitted these applicants as its employees, it has been pleaded that this petition has been brought just to blackmail the respondent and so is liable to be dismissed. In regard to the applicants of application No,2/1987 it has been pleaded that the owner of the respondent is a Pardah Nasheen Lady and since her son, who was looking after the respondent, had refused to run this factory any more on her behalf, she herself was not in a position to control and manage the establishment and so she was compelled to lease out the same to an independent contractor. Accordingly, the services of these applicants were terminated alongwith others by a written termination order dated 4-6-1987 and which order was offered in person to the applicants with other workers. However, except four all the workers refused to receive the said order. Accordingly, this order was sent by post to each worker which was duly served on them. However, a copy of the said termination order was delivered to the Labour Officer (Factories)
4. Government of Sind on 4-6-1987. The respondent has also denied that it has converted Muslim Glass Bengles Industry or it has any knowledge about any Hajra Glass Bangles Industry. It also denied rest of the contentions of the applicants as made by them in the aforesaid application. It has also been pleaded that out of 45 terminated workers 13 or 14 are said to have already joined the new contractor.
5. In application No,1/87 Muhammad Naeem, Abdul Hameed, Mumtaz Ali, Mr.Muhammad Urs Soomro, Assistant Director Labour (Inspection) Hyderabad, and Mr. A.Sattar Daudpota, Assistant Director Labour (Registration) Hyderabad were tendered in evidence on behalf of the applicants, while one Mr.Muhammad Fazil Khan, an Attorney of the Lady Owner was examined on behalf of the respondent. In application No,2/87 Muhammad Ashfaq, and Mumtaz Ali applicants and M/s Soomro and Daudpota, Assistant Director were examined in support of the case of the applicants, while on behalf of the respondent M/s. Muhammad Fazil Khan, Attorney of the Lady Owner, and Shafique Ahmed, Contractor were tendered in evidence.
6. Since both these cases are based on nearly the same facts except that in the first case the applicants have not been admitted to be the employees of the respondent, I have heard Mr. Shaikh Wahid Bux, Representative for the Applicants, and Mr.Abdul Ghani Khan, Advocate for the Respondent in both these cases. I have also minutely examined the material on record. These cases are accordingly proposed to he decided by this common order.
7. I would first dilate upon application No,1/1987 wherein the applicants have not been admitted to be the employees of the respondent.
8. Mr. Wahid Bux has submitted that all these applicants were old employees right from the days of the late husband of the present lady owner, as they had joined one Muslim Glass Bangles Industry and which was inherited by the present lady owner and she had changed its name as New Muslim Glass Bangles Industry and then as National Glass Bangles Industry. According to him, neither late Mr. Bashiruddin nor the present lady owner had ever issued any appointment letters or other service documents to any worker in any of these establishments and so no documentary proof could be brought on record to prove the employment of the applicants. He submitted that the services of the applicants have otherwise been established by the evidence of Mumtaz Ali who was not only a co-worker but is also the President of the registered trade union of this establishment.
9. Moreover, according to him, when the application for registration was moved before the Registration Wing of the Labour Department, the names of these applicants were mentioned in the list of the workers of the respondent factory and at least one Hameed applicant was also shown as Propaganda Secretary of this newly formed union. According to him, if these applicants were not in the employment of the respondent, their names could not have been mentioned in the list of workers or the office-hearers at the time of submission of the application for registration. He proceeded to argue that not only this but even in application Ex.A/28 and which was moved on 9- 6-1987 before the Assistant Director Labour (Inspection) Hyderabad against the illegal lock-out of the applicants and others the names of the present applicants have also been mentioned and which confirms the employment of the present applicants. In regard to applicant Naeem learned Representative submits that this Naeem was also an old employee from the days of late Mr. Bashiruddin and had never resigned from his employment. According to him, the so-called resignation and the payment voucher are forged documents and so they are to be excluded from consideration.
10. Mr. Ghani, on the other hand, submitted that this application in fact is not maintainable in law because the applicants were never employees of the respondent and further that they all also did not appear in this Court nor tendered themselves for their cross-examination. They also did not authorise anyone to depose on their behalf in this Court. Accordingly, he submits that at least the application relating to these applicants except the two Muhammad Naeem and Abdul Hameed is to be dismissed on this score alone. He also submitted that relevant registers have also been produced in this Court and the names of any of these applicants do not find place in this register.
11. He also submits that if the service documents were never issued to the applicants, they ought to have complained against it anywhere and if they remained silent for years together, they cannot be permitted to take up this fake plea of non-issuance of service documents at this belated stage for the first time in this Court. He also submits that in any case the applicants have not led even any oral independent evidence to prove their employment with the respondent. According to him, Muhammad Naeem and Abdul Hameed are the applicants herein whereas Mumtaz Ali is already aggrieved and highly interested witness against the respondent inasmuch as he is one of the applicants in the other application and is also in the habit of frequently appearing against the respondent in various Courts. Accordingly, no reliance can be placed on such a highly interested witness. As to the application for registration and names of the applicants in such application, Mr. Ghani submits that such an application would not advance the case of the applicants for the simple reason that it was moved only after the termination of the actual workers of the respondent.
12. He submits that the union was said to have been formed on 8-5-1987 but admittedly no application for registration was made by them until workers of the respondent were terminated.
13. Accordingly, such an application would be of no legal consequence for the purposes of their case.
14. In regard to Naeem it has been argued on behalf of the respondent that he had not only voluntarily resigned from the respondent establishment but had also collected his legal dues as per R/1 and R/2 and which documents have been placed on record in original. Therefore, he has no right to maintain this petition.
15. This application dated 12-8-1987 has been filed in this Court by 8 persons jointly. I have gone through the entire record but I do not find any document to show that any person was authorised by them to depose on their behalf in this Court. Of course Mr. Wahid Bux has been authorised to appear, conduct and plead their cause in this Court but he has not appeared as witness on behalf of the applicants. Except Muhammad Naeem and Abdul Hameed none have appeared in the witness box nor they have tendered themselves for cross-examination. The respondent has specifically denied their employment with it and so the burden was on individual applicants to prove their employment with the respondent. Since except the two referred to above rest of the 6 have neither appeared in this Court nor led any evidence oral or documentary to prove their employment with the respondent, the application relating to their cause is liable to be dismissed on this score alone.
16. 'All the applicants in the application have pleaded that they were employed by one Mr. Bashiruddin in Muslim Glass Industry and they continuously worked till their impugned termination. It has specifically been asserted in para 6 of the affidavit of the attorney of the respondent that the present respondent factory was installed and established in July 1984 as per the registration certificate Ex.R/7 and that the present owner of the respondent had nothing to do with any Muslim Glass Industry or New Muslim Glass Industry etc. The applicants have no doubt denied this assertion of the respondent but they led no evidence whatsoever to prove that they are not only in continuous employment from the days of Muslim Glass Industry but this respondent establishment was not independently established and registered by registration certificate Ex.R/33. In view of an authentic registration certificate, genuineness of which having not been disputed, mere uncorroborated oral version of the applicants that this respondent factory is the same which was previously run by Mr.Bashir in the name of Muslim Glass Industry or that the applicants were in continuous employment, cannot be accepted. Not only this but in, view of the authentic Government document the applicants have been falsified in their assertion that they were in continuous employment. When the industry was itself created and established in July 1984, there was no occasion for the respondent to have employed these applicants prior to its establishment.
17. However, as stated above, the applicants have brought no oral or documentary evidence in regard to their employment anywhere and so simply because they now assert their employment with the respondent, cannot be believed.
18. Mr. Wahid Bux has placed much emphasis on the registration application Ex.A/31 as also the complaint against the respondent said to have been moved on 9-6-1987 as per A/28. I have examined both these documents as also the relevant evidence of the responsible Officers of the Labour Directorate examined by the applicants themselves. Application dated 9-6-1987 (A/28) bears the signatures of only 40 persons though according to the applicants more than 50 persons were employed in the respondent factory and all of them had accompanied with Mr. Mumtaz to the Labour Directorate against the lock-out made by the respondent. Why others have not signed this application, has not been explained in this Court. In any case, even this application is not signed by M/s. Muhammad Naeem, Ishtiaq and Zahid Ali. It has also not been explained in this Court why these three applicants did not sign this complaint and why they did not go to the Labour Directorate to complain against their alleged lock-out. This fact also goes against these applicants and more particularly against Muhammad Naeem who now claims that he remained in continuous employment of the respondent upto the impugned lock-out on 9-6-1987. If this Naeem was factually in the employment and had not resigned, he must have joined the other workers in making complaints against the respondent. In any case, mere signatures on a complaint would not ipso facto prove the employment particularly when none from the Labour Directorate ever made any attempt to verify from the respondent or its record if any of these applicants were ever in the employment of the respondent. Both the Officers of the Labour Directorate have categorically admitted that they never bothered to make such enquiry. On the contrary, it appears that this complaint dated 9-6-1987 was simply filed without any action. I have also summoned the original file pertaining to this complaint from the Labour Directorate but such file was not produced in this Court except the original application, show-cause notice etc. and which has been got produced during the course of evidence by Mr. Wahid Bux. Accordingly, this complaint dated 9-6- 1987 cannot be used in favour of the employment of the applicants.
19. In so far as the application for registration A/31 is concerned, suffice it to say that such an application is also of no legal consequence. As per the endorsements on this application A/31 as also the note sheet of the relevant file, it appears that this application was in fact presented before the Registrar on 11-6-1987 and then it was processed on 13-6-1987. The workers of the respondent had already been terminated and if such an application for registration was moved after such termination or closure of the factory, and if the names of any of the applicants were inserted in the list of members etc. such inclusion will be considered to be an after thought and might have been included in order to make out a case for their employment. If the union was actually formed on 8- 5-1987, there was no reason for the members of the union to have remained silent till the termination order dated 4-6-1987. They have not explained as to why they did not approach the Registrar for registration of their trade union till 11-6-1987, or at best till 7-6-1987. This registration application is also of no help to applicants particularly when there is no proof on record to show that the formation of this trade union was ever communicated to the respondent. In view of this material on record, I would have no hesitation in holding that the applicants were not in the employment of the respondent on any date on 8-6-1987.
20. In so far as the case of Muhammad Naeem is concerned, suffice it to say that the respondent has established the resignation by producing the document in original. Moreover, the wage registers brought on record do not mention the name of this Naeem after 15-11-1986. The signatures of this Naeem on the documents R/1 and R/2 have also been compared with his admitted signatures and I am of the firm view that there is much similarity in the trend of the two types of signatures.
21. Moreover, if this Naeem was in the employment of the respondent after 15-11-1986, his name must have appeared in the attendance and wage registers on which registers admittedly the workers of the respondent including the Naeem were being paid their wages. The applicants also did not make any attempt to summon any other record of the respondent to prove the employment of Muhammad Naeem in particular and of other applicants in general.
22. In this view of the matter, the applicants have failed to establish their IF employment with the respondent and so their application is dismissed.
23. I would now advert to the application No,2/1987. It has been contended by Mr. Wahid Bux that the impugned termination letter dated 4-6-1987 was never offered to the applicants but in fact it was despatched only on 11-6-1987 and which was served on them on 13-11-1987. He submits that this so-called termination order is thus proved to have been subsequently prepared after the complaint of the applicants made before Labour Directorate on 9-6-1987 and so this order is a nullity in law. He proceeded to argue that show-cause notice on their complaint was issued to the respondent on the same day viz. 9-6-1987 as per A/29 but it was never replied. He submits that the impugned termination is in fact a counterblast of the formation of the trade union by the workers and so this action is without jurisdiction and also smacks out mala fide. His next submission is that by this termination the respondent has violated the mandatory provision of S.O.11-A and so this order is not tenable in law. In regard to the plea of giving this factory on lease, Mr. Wahid Bux submits that it is a forged document. It is said to have been executed on 2-6-1987 though by this time the workers were still in employment and no formal termination order was also issued. This document is also otherwise inadmissible in evidence because it is not registered as is required by section 17 of Registration Act. In fact, according to him, this lease agreement is nothing short of a Benami transaction. Mr. Wahid Bux submits that the respondent concern has never been given on lease and that Mr.Wasiuddin son of the lady owner is still dealing with the affairs of this factory and the attorney examined in this Court is a fictitious and a hired person. Mr. Ghani, on the other hand, submits that the plea of mala fide has not been established. The formation of union was never intimated to the respondent and so it is false to urge that this termination was a result of this formation of the union. Moreover, the alleged application for registration was moved much after the termination order was actually communicated even to Labour Directorate and so it is quite evident that this union was formed by the persons having no relation with the respondent, as, by that time, they had ceased to be the employees of the respondent. Besides this, a number of persons mentioned as members' of the union had never been the employees of the respondent and since the registration was issued by the Registrar of trade unions without making any verification about the actual employment of all the persons and after having definite information that the entire factory had been leased out and the workers had been terminated, the same is also a nullity in law. His further submission is that admittedly the owner of the present respondent is a pardah nashcen lady and so she was not in the position of running this factory. Her son had refused to continue to look after this industry and so she had no option but to lease out this establishment to an independent contractor. According to him, there is no embargo on the authority of the owner of a factory to lease out its establishment to any one. As to the plea of lease, Mr. Ghani has submitted that not only the lease agreement has been brought on record but the contractor has also been tendered in evidence and his assertion on oath has not been shattered in the cross-examination. He also submitted that permission of Labour Court to close the establishment before effecting retrenchment is not the requirement of law as permissible if necessary can be obtained from the Court at any time after the factual retrenchment. Moreover, in the instant case, in fact there is no closure of the establishment but it has only been leased out and a number of workers have already joined the contractor after settling down their dues with the respondent. He also submits that the lease agreement is not necessarily to be registered and in any case it can be used for collatoral purposes. He also submitted that out of 33 applicants only Muhammad Ashfaq and Mumtaz have offered themselves for cross-examination and since others did not appear in evidence and they also did not authorise any one to depose on their behalf, their cases are liable to be dismissed for want of their evidence. As to the financial difficulties Mr.Ghani submits that since the lady owner is not in a position to do marketing of the products of her factory by herself there was accumulation of stock and so financial difficulties were being faced by her. He has also invited my attention to various contradictions in the evidence of the applicants and submitted that in fact the applicants are themselves unaware of their own case and have only acted as a tool in the hand of someone.
24. It has been proved that the termination of the applicants was effected by letter dated 4-6-1987, a copy of which was duly delivered to the Labour Directorate on the same date. This termination letter was personally offered to the applicants but they did not receive the same and so it was sent by registered post and was served on the applicants on 13-6-1987. The application for registration was also admittedly moved by the persons concerned apparently on 11-6-1987, and even if it is presumed to have been moved on 7-6-1987, it was admittedly submitted after the impugned termination order. MrA. Sattar Daudpota, learned Assistant Director Labour (Registration), has admitted that the Labour Department had already been intimated on 4-6-1987 that the factory had been leased out to one Shafique Ahmed and that 45 workers of the factory had been terminated. He also admitted that he had no personal knowledge if any of the persons mentioned in the list of members of the union were in the employment of the respondent even on 23-7-1987 when the registration of the union was approved. He admitted that 45 workers were considered in the employment of the respondent only on the assumption that they had adopted the grievance procedure though they had physically been terminated long before the application made for registration. The record of the Labour Department also shows that the statements recorded by someone of the Labour Department on 6-7-1987 indicate that Mumtaz Ali and others had already filed their grievance petitions in this Court. However, the record of this Court shows that they had filed the present petition on 13-8-1987. In view of the factual position as admitted by Mr. Sattar, as also supported by the documents on record, it is quite evident that the registration of the union was granted without any enquiry whatsoever and on unproved and false statements of the members of the union that they were in the employment of the respondent at the relevant time.
25. The mala fides alleged by the applicants that their termination was on account of their union activities has not at all been proved. It is an admitted fact on record that not only the application for registration of the union was moved after their termination but that the applicants or any of the workers never intimated the management in regard to the formation of their union. When the management was unaware about any union activities, it does not lie in the mouth of the applicants to allege that they had been victimized because of their union activities. It is also an undisputed fact that the respondent factory is owned by a pardah nasheen lady and that she never came in the factory. Her son Wasiuddin was looking after this factory but he is also said to have refused to run this factory anymore and did not visit the factory after 3-6-1987. The applicants have produced no evidence whatsoever to show that this Wasiuddin is still coming to the factory and is dealing with the affairs of the factory as usual. If the factory is owned by a pardah nasheen lady and if there is none else to look after her interest on her behalf, she has a legal and moral right to either wind up her business for good or to rent out the same to any one in order to meet her requirements by the usufructs of the said concern. The respondent has proved by oral as also documentary evidence that this factory was factually leased out to one Muhammad Shafique by a written document of lease and such a contractor is now running this factory in his independent right, of course on paying necessary lease amount to the lady owner.
26. This contractor has also been examined in this Court and his testimony remained unshattercd. In regard to the submission of Mr. Wahid Bux as to the admissibility of the lease agreement, suffice it to say that this agreement is not hit by the provisions of section 17 or section 49 of the Registration Act inasmuch as this lease is only at will and for an unspecified period. It can be determined any moment on giving one month's notice to the Lessee or on violation of any term of lease. The submission of Mr. Wahid Bux that the possession of the factory has not been shown to have been given to the contractor is also devoid of substance. The attorney of the owner and the contractor have admitted the receipt of the possession of the factory and further that by clause 6 of the agreement it is quite evident that the possession of the factory is with the contractor and that is why he is to revert back the possession of the factory to the owner as and when required. Even if the lease agreement is excluded from consideration for want of registration it has been proved by the evidence of M/s Soomro and Daudpota, Assistant Directors of Labour, and who had been examined in this case by the applicants themselves. According to their evidence, the factory is on lease with one Mr.Shafique and which fact was certified to them by their concerned staff. In view of this very evidence, it cannot be urged by Mr. Wahid Bux that the plea of lease is a forged one or that Mr. Wasiuddin is still running the factory.
27. As to the plea of violation of S.O.11-A, suffice it to say that firstly there does not appear to be a closure of the factory, but even if it is to be deemed as such, as per the dictum laid down in 1986 PLC 1052, any application 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. Accordingly, the employer is perfectly justified in terminating the workers before applying for or seeking permission to close down the establishment. Moreover, our own Hon'ble Tribunal has also followed this rule in 1987 PLC
34. In 1985 PLC page 981 also it has been held that termination on account of re-organization or even giving on contract of work to independent contractor is permissible provided such action is taken bona fide and not as a clog to get rid of workers or to crush genuine union activities. Besides this, I feel that it can at best be only a violation of S.O.11-A for the purposes of prosecution but the impugned order cannot be pleaded to be violative of S.0.12(3) as it has been established that the impugned termination was not because of union activities nor it was passed with any mala fide intentions and further that the owner was compelled because of her personal difficulties to run this factory and so such an action cannot be treated as mala fide under any stretch of imagination.
28. The authorities relied upon by Mr. Wahid Bux 1982 PLC 391, 1987 PLC 662 and 1976 SCMR 448 are thus quite distinguishable on facts and are not attracted to the factual position of this case.
29. In view of what has been discussed hereinabove I do not find any substance in these petitions which are accordingly dismissed.