These are two applications under Order XLVII, rule 1, of Tribunal The Civil Procedure Code for review of my order dated 21st June 1969. I disposed of two appeals by a common order dated 21 June 1969, as they arose out of as award given by the industrial Court. Of the two appeals that I disposed of by the said Order one was filed by Messrs Valika Textile Mills Limited, and the other by Messrs Valika Woollen Mills Company Limited. The learned Industrial Court by its order had ordered the reinstate--ment of 11 of the Workmen of Messrs Valika Textile Mills Ltd., and 5 of the Valika Woollen Mills Company Limited. Imaintained that order.
2.The scope of review is very limited. It is not a substitute for appeal. The application for review lies if a pest discovers a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was pas or order made, or on account of same mistake or error apparent on the face of the record, or for any other sufficient reason. He may in these circumstances apply for a review o judgment to the Court which passed the decree or made the order The application for review thus would le on any of the following circumstances :-
(1) On the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, wag not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made ;
(2) On account of some mistake or error apparent oil the face of the record; and
(3) For any other sufficient reason.st
3. Keeping in view the points on which an application for review is maintainable. I would now points urged by the learned Advocate, Mr. Sheikh Haider, for the Mills in the two applications.
4. In the first place, Mr. Haider contended that the workmen, Taj Muhammad and Syed Ghaffar, admitted that they were charge sheeted and that an enquiry was held against them. All that these two workmen contended was that the enquiry was not impartial. The submission was that the learned Industrial Court and the Tribunal have made a mistake which is apparent on the face of the record, inasmuch as the finding that there was no enquiry is not supported by the evidence. In the first place, this contention is not covered under any of the ground on which an application for review is maintainable In the second place; this is a question of fact whether an enquiry was held or not and the Industrial Court and the Tribunal were competent to hold, after considering the evidence of these two workmen and the other circumstances appearing from the record that no enquiry was held.
4. It was contended in the second place that the workmen Tai Muhammad, Umer Muhammad, Toor Ali and Fazal Waheed, admittedly, as would appear from their statement, were in employment in some Factory or other at least for sometime after they were dismissed from service. The submission is that they could not get wages for the period that they were in the employ--ment of some concern or other after they were dismissed by the Mill. It is true, these workmen have admitted that the; were in employment for sometime after they were dismissed by the Mill. The question, however, is as to whether this point car be taken in an application for review. It was open to the Milil to take up this point iii the Memorandum of Appeal or before the Industrial Court. A perusal of the Memorandum of Appeal would show that the Mill did not take this point that these four workmen would not be entitled to full wages from the date that they were dismissed to the date of their re-instatement. This point was also not taken at the Bar at the time when the appeal was heard. In these circumstances, I would hold that it is no proper to take a new point in an application for review.
5. It was in the next place contended that Syed Ghaffar cannot be said to be a workman, as he was admittedly a Jobber. Whether a person in a workman or not would depend upon the nature of the work that he performs in the Mill. There is nothing in the evidence of Syed Ghaffar or the other witnesses to show as to what is the work of a Jobber. The learned Chairman of the Industrial Court considered the contention of the Mill that Syed Ghaffar was a Jobber and ordered his re-- instatement. It would, therefore, appear that the Industrial Court, on the evidence before it, came to the conclusion that Syed Ghaffar was a workman. As I have already observed whether Syed Ghaffar was a workman or not would depend upon the texture of his duties and the work that he was required to be performed by the Mill. There is nothing on the record of this case to show as to what was the duty of a Jobber, which Syed Ghaffar was required to perform. In the absence of any evidence on that point, I have no reason to modify the decision arrived at by me or the Industrial Court, about the re-instatement of Syed Ghaffar.
6. It was submitted that Fazal Waheed is only a badli and, therefore, the Court could not order his re-instatement. In this connection reliance was placed on Exh. A. W.
13. I have gone through Exh. A.
W.
13. It does not show that Fazal Waheed was `badli'. In fact a perusal of Exhs. R-13 and R-14, filed by the Management and compared to Exh. A. W. 13, would lead one to the conclusion that Fazal Waheed was not a `badli'. Exhs: R-13 and R-14, disclose that he was a `badli' while Exh. A. W. 13, which is a ticket issued by the Management, latter on does not show that he was a 'badli'.
7. It was very strenuously contended that all that Tayab Aii admitied was that the Contractor was an employee of Valika Textile Mills Limited. Tayab Ali did not state that the Contractor was an employee of Valika Woollen Mills Limited. The submission is that the Industrial Court and the Tribunal wrongly relied on the statement of Tayab Ali in support of the conclusion that the Contractor was in the employment of the Valika Woollen Mills Limited. It was, therefore, urged that the five workmen of the Valika Woollen Mills Limited, who have been ordered to be re-instated, were the men of the Contractor and not the employees of the Mill. The learned Chairman of the Industrial Court has not only relied on the admission made by Tayab Ali in support of the conclusion that 5 persons, whose re-instatement he ordered, were the employees of the Valika Woollen Mills Limited and not of the Contractor, but on several other grounds also. Moreover, it would appear from the application made by the Management itself after the examination of Tayab Ali that the Management itself understood that the statement of Tayab Ali as to the employment of the Contractor by the Mill, would effect the case of the 5 persons, who were working in the Valika Woollen Mills Limited. I would hold that this submission is beyond the scope of review .
8. Mr. Haider, made a common submission in respect of both the appeals that the Industrial Court had not granted wages for the period that the workmen of the Vallka Textile Mills Limited and the Valika Woollen Mills Limited were out of employment, after they were dismissed by the two Mills. The Court had ordered that the workmen to be re-instated were to get "all back benefits". The learned Advocate contended that "back benefits" would not include wages. The question is as to what did the Court mean by "back benefits". The words "back' benefits" are wide enough, in my view to include wages also. It would be unthinkable that the Court would order the reinstate--ment of the workmen with all back benefits and not grant wages. If the Court were to refuse to grant wages, it would give some reason or the other for not giving what is obvious. Moreover, the Management itself understood that "back benefits" would also include emoluments. That this was so is clear from the Memorandum of Appeal. While referring to the Industrial Tribunal in the Memorandum of Appeal No. KAR-174/ 69, the Management mentioned as under:- " ------ accepted Demand No. 1, and ordered reinstate--ment and payment of emoluments; hence this appeal on the following amongst other grounds."
9. Mr. Haider lastly submitted that all the workers, who have been ordered to be re-instated, were not on daily wages.
Some of them were employed on `piece-rate' basis. That is, they were to act remuneration according to the turn out of their work, On this basis, the learned Advocate submitted that it would be difficult for the Management to make payment for the remuneration of the piece-rate workers, Mr. Shafiq the learned Advocate for the workers, on the other hand submitted that there is a practice in the Mill to make payment on the average turn out of work by piece-rate workers. Mr. Jaffar Hussain Siddiqi, who is present in the Court and who is the Labour Officer of Valika Textile Mills Limited as well as of Valika Woollen Mills Limited, states that payment is made to piece-rate workers on the basis of their fortnightly average work. In this view of the matter, there will be no difficulty in making payment to the piece-rate workers on the basis of their fortnightly average work.
10. No other point was urged. The two applications are dismissed.