' MAHMOOD AKHTAR (SENIOR MEMBER).-- This appeal was heard under section 22B(4) of the I.R.O., 1969 in the absence of Mr. Muhammad Afzal Sandhu, learned Chairman, who was pre-occupied.
2. The Employees Union Hayat Flour Mills Sargodha filed a petition under section 22A(8)(g), I.R.O., 1969, through its President on 21-7-1988 before the Single Bench Lahore. The union which was registered on 18-6-1988 by the Registrar of Trade Unions Sargodha (respondent No,2 in this appeal) is also a certified CBA in the establishment of Hayat Flour Mills Sargodha. The application before the learned Member stated that respondents Nos.1 to 6 had removed the President of the Union.
Muhammad Sher, Wilayat Shah, Treasurer and Ahmad Bukhah the active Member of the Union in violation of section 15(1)(d) of the I.R.O., 1969. The order of removal was verbal and consequently liable to be set aside on that ground alone besides others. It was urged that the Registrar of Trade Unions Sargodha also joined hands for cancellation of the registration of the union and issued a show-cause notice dated 18-7-1988 for cancellation of its registration. It was prayed that the order of removal of the three workers from service be set aside and they be reinstated with back benefits, and the show-cause notice dated 18-7-1988 issued by the Registrar Trade Unions Sargodha may be cancelled and he may be directed not to cancel the registration of the union. The present appellant took up the position before the learned Single Bench that Muhammad Sher, Willayat Shah and Ahmed Bukhsh were not their employees. The learned member framed the following two issues: "(1) Whether Muhammad Sher, Willayat Hussain and Ahmed Bakhsh are employees of Hayat Flour Mills and active members of the petitioner union?
O.P.P.
(2) Whether the respondents have removed Muhammad Sher, Willayat Hussain and Ahmad Baldish on account of their trade union activities?
0.P.P."
3. He came to the conclusion that "the record of Hayat Flour Mills is not liable (Sic-reliable) and therefore action of termination of the services of Muhammad Sher, Willayat Hussain and Ahmed Bukhsh on the formation of the union amounts to unfair labour practice. I, therefore, answer both the issues in the positive and allow the main petition as well as the application under Regulation 32(2) of the NIRC directing the respondents Nos.1 to 6 to reinstate the petitioners with effect from 2- 7-1988 with all back benefits. Respondent No,7 is directed to stop further proceedings of cancellation of registration of the Employees Union Hayat Flour Mills Sargodha." Hence this appeal.
4. The appellant assailed this order on the grounds that (1) the case has been filed by the union which could not espouse the cause of individual worker/workers as such the petition was not maintainable, (2) the learned Member-Lahore did not give weight to the documentary evidence such as Attendance Register, Payment of Wages Register, Schedules of payments to the Social Security Department and Contribution Slip under the Old-Age Benefit law and gave undue importance to the verbal evidence of respondents. The documentary evidence which had gone unchallenged according to the appellant showed that Muhammad Sher, Willayat Hussain and Ahmed Bukhsh were never employed in the appellant's establishment, (3) the respondents' evidence was highly interested and the only witness relied upon was ignorant of the facts. The decision of the Court was based on personal impression, (4) since the Registrar of Trade Unions Sargodha, (respondent No,2) had found that the said three workers were not employed by the appellant therefore the learned Member was wrong in discarding that strong evidence without giving any cogent reason, therefor, and (5) since Ahmed Bakhsh did not appear before learned Member at all and Willayat Hussain who appeared, did not say that he remained unemployed from the date of termination, therefore, learned Member was wrong in awarding them back benefits.
5. The argument that since the case has been filed by the union it cannot espouse the cause of individual workers and as such the petition is not maintainable, is without substance. The instant petition was filed under section 22A(8)(g) of the IRO, 1969, which requires the commission to "deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and, to take, in such manner as may be prescribed, measures to prevent an employer or workman from committing an unfair labour practice....".
6. Now a petition under section 34 can be filed by an employer or a collective bargaining agent. But it was argued that the collective bargaining agent shall have no right to espouse the cause of general workers. It can only seek the enforcement of the rights guaranteed or secured to it under any law or any award or settlement. Counsel cited 1980 PLC 752-cc, PLD 1979 Kar. Page 473, 1982 PLC 483 and NLR 1981 T.D. Page 378.
7. However none of these cases have any bearing or even similarity to the case in hand. The respondents' case is that the objection could not be raised as it was not raised before the learned Single Bench. This being a question of law the objection could be raised even at the appellate stage. But this objection is otherwise of little substance. The three workers whose case the union has espoused in the petition under present appeal included its Treasurer and President. If the status of these two office holders is determined as non-workers or out siders then the number of outsiders among union officers stated, exceeds the prescribed limit of 25% under section 7(1)(d) of I.R.O., 1969 and the very registration of the CBA shall be liable to be cancelled bringing the life of the CBA to an end. A CBA has the guaranteed right to office at least for a period of two years under section 22(10) of the I.R.O., 1969, Consequently the argument that this union could not espouse the cause of these two union officers individual workers is without any substance. This threat to the CBA status of respondent No,1 is very real because respondent No,2, has already served a notice on respondent No,1, the CBA Union to show-cause why its registration should not be cancelled as Muhammad Sher, the President and Willayat Hussain, the Finance Secretary/Treasurer, the two out of 5 officers of the union are not workers. Thus respondent No,1 could bring the petition before learned Single Bench in respect of its two aforesaid office-bearers.
8. The argument that the learned Member Lahore did not give weight to the documentary evidence such as attendance register, payment of wages register, Schedules of payments to the social security department and contribution slips under the Old-Age Benefits law which show that Muhammad Sher, Willayat Hussain and Ahmad Bakhsh were never employed in the appellant's establishment and instead gave undue importance to the verbal evidence of respondents, is of no substance. The aforesaid documentary evidence shows that all these registers and documents relate to "Mian Co. Contractors M. Hayat Flour Mills". {{URDU TEXT}} ' None of the documents or registers produced before learned Single Bench related to M. Hayat Flour Mills Sargodha. No explanation was given why the documents relating to Mian Co.
Contractors Sargodha were being produced and why the attendance registers etc. Of M. Hayat Flour Mills Sargodha itself were not produced. Snince the entire documentary evidence produced by the appellants related to "Mian Co. Contractors" while the whole controversy was about the Hayat Flour Mills and also no explanation was offered therefore, the learned Single Member was right in not giving weight to it.
8-A. Further the case of the appellants that since the name of none of the three persons namely, Muhammad Sher, Willayat Hussain, Ahmed Bakhsh was borne on these registers and documents produced before the learned Single Bench, therefore they were not employed in the Mill was not put to any of the PWs in cross-examination. On the other hand the statement of P.W.1 Taj Din shows that he specifically asserted in the examination-in-chief that these three persons were employed in the Mill. He ought to have been asked in cross-examination why the names of these three persons were not borne on the registers/documents of Hayat Flour Mills but this was not done.
Similarly, P.W.2 was also not confronted with that question. On the other hand he was asked as to what salary he was paid to which he replied naming the sum that he was being paid. He was then asked if he had the Social Security Cards issued by the Social Security or by the respondents and why he had no attendance cards/leave cards. He replied that he had no social security card issued by the Social Security or by the respondents and that the Management did not give any attendance card or leave card (that is as a matter of practice). He was not challenged that he was not actually employed by the present appellants which actually was the case of the Management.
Same is true about P.W.3. He was asked the reason for not possessing the attendance cards, social cards, leave cards and EOBI cards to which he replied that the same were not issued by the respondent (present appellant). He also explained that he had been demanding these cards for the last six or eight years. He asserted that he complained in writing to the Labour Department who told him that first of all he should form a Labour Union and only then they (and the present appellant) will issue cards and that when he formed the Onion the result was that his services were terminated. This witness was not specifically put the essential case of the present appellant that in fact he was never employed by M. Hayat Flour Mills. Requiring a witness to explain the absence of the above stated cards prescribed by law to be given by an employer to a worker is different from putting it to him that none of the three persons namely Muhammad Sher, Willayat Hussain and Ahmed Bakhsh were ever employed by the respondent (present appellant). It was necessary for the appellant to have put this essential and material question in his cross-examination to all the petitioner's witnesses. This is not a mere technical rule of evidence that the essential case of the respondent must be revealed to the petitioners but a substantial requirement which if not complied would go to the roots of justice. The mere omission to confront the petitioner's witnesses with the registers as well as with the assertion that Willayat Hussain, Mohammad Sher and Ahmad Bakhsh were in fact never employed by Hayat Flour Mills, deprived the petitioners of the opportunity to know the defence which they were expected to meet. The respondents before the learned Single Bench must have put their essential and material case in cross-examination.
9. In the case of Nazir Begum and others v. Abdul Sattar PLD 1963 (W.P.) Kar. Page 465, Mr. Justice Inamullah Khan observed as follows:-- "It was for the respondent to put his case in the cross-examination of Mst. Nazeer Begum. The applicant did not care to challenge the statement made by Mst. Nazeer Begum as reproduced above. It has been held in a well considered judgment of a Division Bench of the Calcutta High Court in the case of A.E.G. Carapiet v. A.Y. Derderian (1) AIR 1961 Cal. 359 that wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross- examination, it must follow that he believed that the testimony given could not be disputed at all. I would, for the purposes of this application take it that the applicant did not care to provide any maintenance for his minor children or make an attempt to see them....".
10. Similarly in the case of Said Munir and another v. The State PLD 1964 (W.P.) Peshawar, p. 194; (Faizullah Khan and Muhammad Daud Khan. Judges), it was observed as follows: "This brings me to the statement of Pilla Khan (C.W.1) who seemingly is disinterested witness and his statement as compared to P.Ws. Saifur Shah and Abdul Mannan, appears to be more plausible in particular in regard to the non-complicity of Attaullah accused. It is important to observe here that the public prosecutor did not care to cross-examine this witness at all, with the result that it is to be presumed that his statement exculpating Attaullah appellant was not challenged by the prosecution "
11. The principle that where a party fails to challenge and cross-examine the other in respect of particular matter it amounts to acceptance of the evidence of the witness to that extent is such a well established principle of law that I would confine to only the two authorities quoted above.
12. Since the appellant did not put his essential and material case that none of the three persons namely Muhammad Sher, Willayat Hussain and Ahmed Bakhsh was the employee of M. Hayat Flour Mills before the learned Bench, it would amount to acceptance of the evidence of the witnesses on this point to that extent.
13. The argument that the respondents' evidence was highly interested and the only witness relied upon was ignorant of the facts is also of no force. The evidence which prevailed with the learned Member according to the appellant himself was that of Taj Din, Chowkidar in the matter of employment of Muhammad Sher and two others. Taj Din being a Chowkidar in the Mills could not be called to be highly interested witness because he was not to gain a lose anything if the petitioner before the learned Single Bench won the case, nor was he related to any of the parties.
On the other hand he did run the risk of losing his job or coming to harm in respect of his employment if he displeased the employer. He was therefore an independent witness.
14. As for the alleged ignorance of the fact by Taj Din, the same is not material because on that score he was not believed by the learned Member. Being an illiterate Chowkidar he could not be expected to know the nature of contract of employment of Muhammad Sher etc. As to whether they were employed on held that in cases where notice of termination under subsection (2) of section 40 of the Industrial Relations Ordinance (XXIII of 1969) (hereinafter called the Ordinance), the demand notice, if it is served after the expiry of the period of settlement agreed, the purpose of such a notice and the demand become negotiable. However, a contrary view was taken by the Labour Appellate Tribunal Punjab in the case Workers' Union v. Hussain Sugar Mills (1984 PLC 129), wherein it was held that in terms of section 40 of the Ordinance, a settlement continues to remain binding on the parties after the expiry of the aforesaid period till the expiry of two months from the date on which either party informs the other party in writing of the intention of no longer to be bound by the settlement and that the two months notice is necessary for the termination of both kinds of settlement envisaged under section 40 of the Ordinance.
2. Report was called for from the learned Chairman of the Punjab Labour Appellate Tribunal to elucidate the view expressed in Worker's Union's case (supra) with reference to the impugned judgment. It is stated that he did not consider his earlier ruling as it was not cited by the petitioner while arguing the appeal.
3. It is not necessary to give any considered views on the rule laid down in Workers Union's case, which will be considered in some other appropriate case. Suffice it to say that in order to maintain cordial relations with the respondent Worker's Union, the management of the petitioner Mills has no objection to negotiate the charter of demand dated 1-3-1989 submitted by the respondent Union. It has also been agreed that the petitioner will convene the first meeting on 10-10-1989 at 10.00 a.m.
In the Mills office with the President, Senior Vice-President and the General Secretary of the Respondent Union to discuss the charter of demand.
4. In view of the above, the petitioner is directed to negotiate with the respondent Union the charter of demands dated 1-3-1989, in accordance with law and in the light of the undertaking given by Mr. Muhammad Hussain Chatha, Factory Manager of the Petitioner Mills. With these observations, the writ petition is accepted, but there shall be no order as to costs.