This writ petition under Article 9 of the Provisional Constitution Order, 1981, is directed against the judgment dated 9-8-1982 passed by the Punjab Labour Appellate Tribunal, Lahore, re-instating respondents workmen,
2. Brief facts are that in 1972, the petitioner-Company was working as manufacturer of beverages. It produced thirteen lacs, ten thousand, seven hundred and six crates of 24 bottles each due to shortage of sugar quota, production of the petitioner-Company in 1973 was dropped to six lass, twenty-- two thousand, two hundred and twenty-three crates of twenty-four bottles each. In consequence, management of the petitioner-Company arrived at an agreement with the Collective Bargaining Agent on 10-12-1973 to retrench the services of the workers. Consequently, services of respondents workmen were retrenched on 12-12-1973. The respondent workmen filed separate grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) before the Junior Labour Court for their reinstatement. After abolition of the said Court, the petitions were entrusted to the Punjab Labour Court No.1. The grievance petitions were resisted by the petitioner Company. The Punjab Labour Court, vide its decision dated 11-8-1979, after appreciation the evidence on record, dismissed the petition mainly on the ground that the respondents did not specifically raise the plea of `last-come first go' in their grievance petitions and, therefore, were not entitled to any relief. On appeal, the Punjab Labour Appellate Tribunal recorded a finding that one Hamid Khan son of Idrees Khan and Mahmood Ahmad son of Rehmat Khan, who were appointed on 22-3-1971 and 1-4-1970 respectively, were junior to the-respondents workmen and, therefore, applying the rule of last come first go' the respondents' appeal was accepted. Thereafter, respondents workmen allegedly failed to join the duty. They were, therefore, dismissed again during pendency of this writ petition. The orders of dismissal have been challenged by the respondents workmen before the Punjab Labour Court No.1 and the matters are stated to be still under adjudication.
3. Learned counsel for the respondents workmen raised an objection that the petitioner-Company is estopped to pursue the petition, in that, the order of the Labour Appellate Tribunal has been acted upon during pendency of this petition. It was submitted that the petitioner-Company passed a fresh order of dismissal against the respondents workmen. The respondents have challenged the same before the Labour Court and, therefore, the impugned order of the Punjab Labour Appellate Tribunal is a transaction `past and closed'. Learned counsel for the petitioner-Company submitted that the subsequent order of dismissal passed by the employer was an independent order and has no nexus with the present petition. He also argued that in any case, the back benefits have not so far been granted to the respondents and the petition is maintainable to that extent at least in case the Court holds that the petitioner is not entitled to pursue the writ petition due to the Company's subsequent conduct. I am also inclined to hold that the petitioner-Company can agitate the question of legality or otherwise of the grant of back benefits but is estopped by its conduct to challenge the impugned order of the Labour Appellate Tribunal in so far as it relates to setting aside of dismissal of the respondents workmen. In any event, the parties have argued the case on merits and I, therefore, propose to deal with the same as well.
4. The first point raised by learned counsel for the petitioner is that respondents workmen have not taken the plea that persons junior to them were retained by the petitioner-Company, in their applications under section 25-A of the Ordinance and, therefore, they were not entitled to claim any relief on that basis. The contention has no force. Refer Crescent Jute Products Ltd., Jaranwala v.
Muhammad Yaqub, etc. (PLD 1978 SC 207), wherein it was held that the Labour Court in exercise of its powers under subsection (5) of section 25-A of the Ordinance is required to go into all the facts and to arrive at its own conclusion regardless of there being any illegality of procedure in the domestic enquiry. The rationale behind subsection (5) of section 25-A was to provide another forum in determining the grievance afresh after considering the fats on which any impugned dismissal is based likewise, the appellate authority can exercise-all powers which are vested in the Labour Court.
It is next argued that respondent No.1 in his statement before the Punjab Labour Court, has stated that Mahmood Ahmed and Arif were junior to him, whereas the petitioner has produced attendance register before the Labour-Court to show that no one junior to respondent No.1 is on .The rolls and that Arif was senior to him and Mahmood's name is not on the register. This question relates to appreciation of evidence and cannot be gone into in writ jurisdiction. The Punjab Labour Appellate Tribunal has recorded a finding of fact, after proper evaluation of the evidence on record that Mahmood Ahmad was junior to respondents who was re-called on 3-3-1974 but his services were not terminated.
5. Learned counsel for the petitioner also objected to the admissibility of document Exh.P.2 and submitted that the appellate Court has committed an illegality in relying upon the same. The contention has no force. The question of admissibility or otherwise of a document, per se, does not vitiate the proceedings. The Labour Appellate Tribunal after perusing the material available on record, recorded a finding of fact against the petitioner. This was within its competence. Refer Crescent Jute Products Ltd (supra).
6. It is further submitted that retrenchment of the respondents workmen was made in accordance with the agreement arrived at between the petitioner-Company and the C.BA. And, therefore, no interference with the impugned dismissals was called for. In this connection, the attention of the Court was drawn to para. 3 of the agreement, which is to the following effect:-- "Therefore, compelled by the circumstances stated above, the Management had no other alternative except to curtail expenses by retrenching the staff as and when they became surplus, and the workers Representatives, being conscious of the situation accepted such retrenchment in principle in so much as that the President of the Union also accepted its retrenchment, being strictly in accordance with law."
7. There is no substance in this plea as well. The settlement in question does not empower the petitioner-Company to retrench the workers contrary to law, that is to say, in violation of the rule "last come first go', which should have been strictly adhered to and the violation thereof was rightly corrected by the Appellate Tribunal.
8. It was lastly contended that the grievance notice was not served by the respondents workers on the petitioner-Company and, therefore, the entire proceedings are coram non judice. I am afraid, this plea was neither urged before the Labour Appellate Tribunal nor taken in the ground of writ petition before this Court and, therefore, it is not proper to allow the petitioner employer to raise the same for the first time during the course of arguments. Refer Crescent Jute Products Ltd. (supra).
9.The matter, however, does not end here. There is great force in the I plea raised by learned counsel for the petitioner-Company that the respondents workmen were not entitled to the grant of back benefits, in that, they were gainfully employed elsewhere during the period of severance from service and they have not even orally alleged to the contrary either before the forums below or this Court. When faced with this, learned counsel for the respondents workmen gave no reply to the assertion of learned counsel for the petitioner. I am, therefore, inclined to hold that in the facts and circumstances of this case, the respondents workmen should not have been granted the back benefits.
10. In view of the above, the impugned ord6rs of the Punjab Labour Appellate Tribunal, in so far as it purports to the grant of back benefits to the respondents workmen, are hereby declared to be without lawful authority and of no legal effect. In so far as it ordains reinstatement of the respondents workmen, shall hold the field. Resultantly, Writ Petitions Nos.3439 and 3440 of 1982 are accepted so far as the grant of back benefits is concerned and are rejected so far as it seeks to challenge the impugned orders of reinstatement, No costs.