DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. 5, Karachi, dated 14th December 1973. An appeal was filed in this Court on 12th January 1974.- As the time when the services of the respondent were terminated, he was working as Folding Incharge. His services were terminated on 28th March 1972, on the ground that Folding Section of the Mill was closed and, therefore, they did not require the services of the respondent. The case of the respondent was that Folding Section was not closed for good.
2. The respondent's case was that they formed the Staff Union of which he was the President. It was registered on 21st March 1972 by the Registrar of Trade Unions, Sind. Registration Certificate has been filed which is Annexure 'B' to the affidavit of the respondent on the Lower Court's Record. The respondent was a very active member of the Union. His activities as President of the Union were not appreciated by the Management, which resulted in the termination of his services on 28th March 1972.
3. Mr. Shaukat A.
Nanji, the learned Representative for the appellant raised two-fold contentions before me, namely,
(1) that at the time when the respondent filed the application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), was in existence and that the respondent did not follow the procedure prescribed therein, and (2) that the application was not filed by the Collective Bargaining Agent and, therefore, not maintainable. There is no force in these two contentions for the reasons, which I would presently mention. According to Mr. S. P. Lodhi, the learned Representative for the respondent, the respondent sent a Grievance Notice as required under Standing Order 18 of the Standing Orders Ordinance or under section 25-A of the Ordinance. It may be mentioned at this stage that section 25-A of the Ordinance was introduced by the Legislature on 13th April 1972 and on the same date Standing Order 18 of the Standing Orders Ordinance was repealed. The admitted position is that on the date when the services of the respondent were terminated Standing Order 18 of the Standing Orders Ordinance was in force. The question, therefore, is whether the letter Annexure *F' to the affidavit of the respondent can be construed to be a compliance with Standing Order 18 of the Standing Orders Ordinance or section 25-A of the Ordinance. It may be noted at this stage that the respondent was also the President of the Union.
He had no doubt signed Annexure 'F* as President of the Union, but it is noteworthy that on that date he had dual capacity, his own individual capacity and that as President of the Union. In this connection, Mr. Nanji relied on the admission made by the respondent in his cross-examination. It runs as under:-- *'I had not made any representation to the respondents in writing against my termination since I was not allowed to enter into the Factory."
4. This is, on the face of it, not correct as apparently he had made a representation to the appellant-company, but it seems to me that the above answer was in response to a question put by Mr. Nanji, "if he had made any personal representation to the Management," because one sentence earlier which I have reproduced, the respondent stated as under:-- "I have stated in para. 6 of my affidavit that we had sent such intimation on 29-3-1972 and it is correct."
5. In this connection, Mr. Nanji also pointed out that the respondfn'/s testimony is not worthy of credit, as he denied to have sent an intimation or Grievance Notice after the termination of his services, his service were terminated on 28th March 1972 and the intimation was sent on 29th March 1972. The Management denied to have received the notice of 29th March 1972. This is an important question. Mr. Lodhi, the learned Representative for the respondent, relied on paragraph II(v) of the Reply Statement that the appellant had received the letter. It runs as under:-- "With reference to paragraphs 8 and 9 the respondent will rely on the alleged letter dated 31st March 1972 for its true interpretation when produced."
6. Mr. Lodhi contended that having relied on the letter of 31st March 1972, it is now too late for the appellant to deny its receipt. On the other hand, Mr. Nanji submitted and laid emphasis on the word "alleged".
He submitted that the word "alleged" does not denote existence. On the other hand, it calls upon the respondent to prove the contents of paragraphs 8 and 9. On the other hand, Mr. Lodhi relied on the word "rely" in paragraph II(v), as reproduced above. Mr. Lodhi submitted that one cannot rely on something if its existence is not admitted. I accept the reasoning of Mr. Lodhi and hold that the letter dated 29th March 1972, was received by the Management.
7. So far as the second point is concerned, there is also not much force. M r. Nanji relied on the admission made by the respondent in his cross- examination, which runs as under:-- "Cotton Mills Staff Union was not the Collective Bargaining Agent as no referendum was held."
8. There is not much force in this contention. In the first place, there is a clear distinction between the Collective Bargaining Agent and a Trade Union.
Under section 25-A of the Ordinance a Trade Union is empowered* to take up the Grievance on behalf of a worker. The application had beenU made by the Union which is a registered Trade Union. I would hold that the! application had been properly made.
9. Lastly, it was contended by Mr. Nanji that the right of the employer cannot be fettered by the Court as to how it wants to manage its own affairs. This is so. In this connection, he submitted that the employees cannot impose on the Management what they think to be proper. As I have already observed this proposition cannot be doubted, but where the Management, admittedly employs someone else to do the certain job, it cannot be saidL that the Folding Department was closed for good. Mr. Yousaf Mufti forr the appellant admitted in his cross-examination as under:-- j "It is a fact that Majibur Rehman works in the Folding Section, as Excise Incharge, but temporarily he is Incharge of the Folding Section." 10.
The case of the appellant was that Folding Section had been closed, but the admission made by Mohammad Yousaf Mufti does not support the contention of the appellant that the Folding Section had been closed permanently.
11. I would, for the reasons given above, dismiss the appeal and maintain the order of learned Labour Court.