DECISION These are cross-appeals filed by the Management, namely, Messrs Adam Silk Mills, Karachi and the other by 15 workmen. These appeals are directed against an award dated June 15, 1972, whereby the learned Chairman of the Second Sind Labour Court, Karachi, ordered 15 workmen to be re-instated forthwith, but refused to grant back benefits. The Management has filed the appeals against the award for re-instatement of 15 workmen while the workmen have filed the appeals against the award refusing to grant them back benefits.
2. Mushtaq Ahmad and 14 others made separate applications under section 34 of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance), against Messrs Adam Silk Mills, Karachi, for re-instatement and back benefits, mainly on the ground that the Management having closed down the Mills from lst April 1970 the workmen who were retrenched as a result of the closure of the Mills, were entitled to be re-employed as the Mills started to work within one year of its having closed down. The Mills had also agreed under the term of settlement dated 8th September 1970, arrived at between the parties, to re-employ the discharged employees if the Mill started within one year of its having closed down. According to the application under section 34 of the Ordinance the Mill re-started working from about lst February 1971. This is all that is stated in the application under section 34 of the Ordinance.
3. On the other hand, the case of the Management was that the application was not maintainable, inasmuch as, refusal to employ the workmen was a breach of the provision of Standing Order and, therefore, the remedy lay under Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). It categorically denied that the Mills started work from about lst February 1971. In fact, the Weaving Department started to function from^6th April 1971 and, therefore, the application should be dismissed.
4. On behalf of the workmen all the workmen filed their affidavits supporting their contention in the application, but only Mushtaq Ahmed was cross- examined. It was agreed that his cross-examination should be treated to be the cross- examination of all the other workmen. On behalf of workmen, one Nizamuddin was also examined.
He staled that he was employed by Yahya Master from 24th February 1971. He had joined the Mills at the request of Mushtaq Ahmed. According to Nizamuddin when Yahya Master came to know his association with the workmen, he discharged him on 22nd June 1971. On behalf of the Management only Syed Farman Ali, Manager of the Mills was examined and cross-examined.
5. The learned Court believed the statements of Mushtaq Ahmed and that of Nizamuddin. The learned Court observed as under-- "The fact, however, remains that there is no proper rebuttal of the evidence of the applicant witnesses on account of the failure of the respondents to examine the material witnesses."
6. According to the learned Court, Yahya Master and one Qureshi, who was the Labour Officer, should have been examined by the Management. I may at once deal with this aspect of the case. Qureshi had left the job of the Mill and was not available. So far as Yahya Master is concerned, he is in the service of the Mills. The case of the Management was that he had come to the Court to file h?s affidavit, but as he was threatened by the workmen, he left the Court premises without swearing the affidavit. The learned Court observed in this connection as under;-- "I see no reason to doubt this statement of the learned Representative, but he ought to have brought this fact to the notice of tne Court, so that even if Yahya Master could not be persuaded to appear in the Court, he could have been examined on commission."
7. The question is how far the case of the Management would have improved if Yahya Master was produced. Yahya Master could not say anything more than what was stated by Syed Farman Ali, the Manager of the Mills. Yahya Master would have only affirmed what Syed Farman Ali had said.
8. I have beard Mr. Mahmood A. Ghani, the learned Representative for the appellant and Mr. Ali Amjad, the learned Representative for the respondents, in Appeals Nos. 37-72 to 71/72, at great length. The first question that requires consideration is as to whether Messrs Mushtaq Ahmed and Nizamuddin should be believed or not.
On behalf of the workmen, no documentary evidence hid been produced to establish that the Weaving Section of the Mill was functioning from the 2nd of February 1971. It may be mentioned at the very outset that there is no substantial circumstance to support the oral testimony of these two witnesses. Their statement, therefore, requires critical examination. Mr. Ghani pointed out certain inconsistencies in the statement of Mr. Mushtaq Ahmed as to the date when the Weaving Section of the Mill started and the letter sent by him, dated the 27th of January 1971. There is no doubt that there is inconsistency as to the date when the Weaving Section of the Mill started. This would only show that Mr. Mushtaq Ahmed was not sure as to when in fact the Mill had started functioning. He was acting merely on guess work. There is a very material inconsistency between the statement of Mr. Mushtaq Ahmed and that of Mr. Nizamuddin. Mr. Mushtaq Ahmed stated, "I did not inform Nizamuddin regarding the re-opening of the Weaving Section." Mr. Nizamuddin stated, "I was told by Mushtaq, the President of the Union, that the Weaving Section has re-started working."
9. It was contended by Mr. Ghani that Mr. Nizamuddin is not worthy of credit. Mr. Ghani urged that according to Mr. Nizamuddin he was emyloyed by Yahya Master, because the latter was his friend. Mr. Nizamuddin stated in his affidavit that "I knew Yahya Master very well." But at the time of cross- examination, which took place long after he had filed the affidavit, be stated ''I then went to Yahya Master, the Weaving Master, for employment but I did not make any request to him in writing. I did not know him before." It is surprising indeed that if Yahya Master was secretly employing weavers, be would engage ivtr. Nizamuddin without knowing him from before. Therefore, Mr. Nizamuddin was employed in the ordinary course, as stated by Mr. Syed Farman Ali.
10. Ordinarily, if there was only the statement of Messrs Mushtaq Ahmed and that of Nizamuddin as against Mr. Syed Farman Ali, I would have accepted the statement of the former two witnesses. There is however, no independent circumstantial evidence to support the statements of Messrs Mushtaq Ahmed, and Nizamuddin. On the other hand, there are material circumstances, which lend support to the fact that the Mill had not started in February 1971, as claimed by the workmen. It may be mentioned at the very outset that the Mill consisted of three sections, which had closed down in April, 1970, namely, H) Dyeing Department, (2) Knitting Department, and (3) Weaving Department. The Dyieng Department started work on 15th November 1970, while the Knitting Department started working in 1he first week of December, 1970 and the Weaving Department commenced work from 6th April 1971. The bona Jides of the Management is clearly established from the fact that no workmen from the Dyeing Department and the Knitting Department had any complaint against the Management though the Mill had started to work within one year, that he had not been employed by the Management.
According to Mr. Mushtaq Ahmad, the Management had terminated the services of about 600 workmen. Out of these 600 workmen, only 15 persons belonging to the Weaving Section of the Mill had grievance against the Management. There is nothing in the statement of Mr. Mushtaq Ahmed to suggest as to why he Management would ourposely avoid to engage these 15 old workmen had it started to function before the expiry of one year period. Surely, there would have been very go >d reason for the Management to start the Mill secretly only to avoid re-employment of these 15 workmen. Mr. Mushtaq Ahmed has failed to make out any reason as to why the Management tried to avoid re-employment of these 15 workmen.
11. Under. Standing Order H of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968 (nereinafter called the Standing Orders Ordinance), the employer has to give an opportunity to the retrenched workmen if he wishes to start the Mill within one year of their retrenchment. Thus the Management had to give an ppor- tunity to these 15 workmen, if it desired to re-start the Mill by 3 st of March 1971 On the face of it, if the Management acted in violation of Standing Order 14 of the Standing Orders Ordinance, the workmen could approach the Labour Court for redress. Mr. Mushtaq Ahmed admits that Mr. S. P. Lodhi, who usually appears before me for workmen, was their Legal Adviser. The failure on the part of the workmen to approach the Court immediately after the Mill had started functioning in February 1971, throws great doubt on the statement of Messrs Mushtaq Ahmed and Nizarauddin. Mr. Mushtaq Ahmed and others approached the Court on 22nd March 1971 through Mr. Lodhi. If it was a fact that the Mill had started functioning in February 1971, it was very easy for Mr. Mushtaq Ahmed to request the Court on the 22nd of March 1971, to visit the premises or to depute someone for the same and find out if the Weaving Section of the Mill was in fact functioning. Lack of desire to do the obvious would suggest that the Weaving Section of the Mill was not functioning otherwise the Representative of the workmen would have at once moved the Court to take necessary step to find out if the Weaving Section of the Mill was functioning or not. The Management was summoned for 22nd April 1971, when it was too late for it to suggest to the Court to inspect the Mill in order to find out if the Weaving Section of the Mill was functioning or not The Weaving Section had already started functioning from 6th April 1971. The admitted position is that Mr. Mushtaq Ahmed had complained to Inspector of Factories on previous occasions. Mr. Mushtaq Ahmed stated as under:-- "I did not send any letter to the Inspector of the Factories regarding the re-opening of the Weaving Section, as I did not know the address. Mr. S. P. Lodhi is the Legal Adviser of our Union. I used to attend the conciliation meetings on behalf of the Union in the Labour Department We had been complaining to the Inspector of Factories on previous occasions/'
12. It is difficult to believe Mr. Mushtaq Ahmed that he did not know tb9 address of the Inspector of Factories, in view of his admission that on, previous occasions they had complained to the Inspector of Factories. At any rate, Mr. Lodhi could find out the address.
13. I am inclined to believe Mr. Syed Farman Ali, the Manager of the Mill. He had produced before the learned Labour Court the Register of workers, and Payment Register. He is supported by Mr. Yousuf Ali, Deputy Superintendent, Central Excise and Land Customs, Karachi, to the extent that the Management had informed the Central Excise and Land Customs Department under rule 43 of the Central Excise Rules, 1944. Under rule 43, every manufacturer of exciseable goods has to give notice in writing to the Collector of his intention to resume the production of such goods at least 15 days before resuming such production. According to Mr. Yousuf Ali, the Management had informed the Central Excise and Land Customs Department on 18th March 1971, of their intention to re-start the Mill, from the end of April 1971. The cross-examination of Mr. Yousuf Ali supports his statement. Mr. Yousuf Ali's report of 27th February 1971, reads as under :-- "The Mill has not yet re-started the looms. The Management will intimate the date of the re-start of powerlooms. The letter may be filed."
14. It is clear from the above that as inspection by the Central Excise Department, the Mill had not started functioning in February 1971. The Management could be taken to task under the Central Excise Rules for not informing the Department of their intention to re-start the Mill.
15. I will also accept the statement of Mr. Syed Farman Ali that Nizamuddin was employed by the Management only in June 1971 aDd not earlier, and that Mr. Nizamuddin left the Mill on his own. Had the services of Mr. Nizamuddin been terminated by the Management without any cause or reason, Mr. Nizamuddin would have approached the Union for redress. Mr. Nizamuddin had not stated anything as to why he did not approach the Court for redress of his grievance, if he was removed from service without any reason. It may be that Mr. Nizamuddin got some better offer and left Adam Silk Mills. However, it is not for me to find as to why he left the Mill so long as it is not established that his services were terminated by the Management, as suggested by Mr. Nizamuddin.
16. It appears to me that Mr. Mushtaq Ahmed and others were acting only under some suspicion as the Management had employed some technical hands to clean the looms before re-starting the Weaving Section of the Mill. As the Management employed some technical persons for cleaning of the looms and putting them in order, the Workmen got suspicious that the Weaving Section of the Mill had started to function. Had the Mill really started functioning in February 1971, and Mr. Nizamuddin had been employed in February 1971, it was very easy for the workmen to approach the Labour Directorate, the Factory Inspector or the Central Excise Department and to complain that the Mill had started functioning. The Factory Inspector or the Central Excise Department would have at once found out if the Weaving Section of the Mill was functioning or not. At any rate, the workmen could have approached the Court to do the needful.
17. Mr. Ali Amjad, the learned Representative for the workmen, very strenuously contended that the possibility of the work having started in February 1971 cannot be ruled out. In this connection, the leamed Representative pointed out that admittedly the Management had employed iome skilled persons to .set the looms in order. The purpose must have keen to Start the Weaving Section of the Mill as soon as possible. This 4il circumstance alone is not sufficient for a positive finding that the Weaving Section had started functioning in February 1971. I have already given my reasons why Messrs Mushtaq Ahmed and Nizamuudin cannot be believed in support of their allegation that the Weaving Section had started in February 1971.
18. In the next place Mr. Ali Amjad contended that in the letter informing the Excise Department, the Management had stated that they would start the Weaving Section of the Mill on 2nd April 1971, while they started it on 6th April 1971. There is a material contradiction. No adverse inference can be drawn against the Management that instead of starting the Mill on the 2nd of April 1971, they started it on the 6th of April 1971. There may be so many reasons why the Weaving Section of the Mill could not start on the 2nd of April 1971.
19. In the third place, Mr. Ali Amjad, the learned Representative for the workmen, contended that the Court should take a liberal view as to when the period of one year expired from 1st April 1970. He contended that if a liberal view was taken the period may expire by 2nd April 1971. If so, the fifteen workmen will become entitled for re-employment. There is not much force in this contention. Period of limitation when prescribed has to be strictly construed. 1 cannot apply any such piinciple as advocated by Mr. Ali Amjad. At any rate, I would hold that the Weaving Section of the Mill had started to function from the 6th of April 1971.
20. For the reasons given above, I would' set aside the award and allow to KAR-71 of 1972, and dismiss to KAR-86 of 1972 and KAR-94 of 1972.