DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated the 6th of March lka73, whereby the learned Labour Court ordered the re- instatement of all the employees with all back benefits to be paid within 15 days The facts giving rise to the present appeal briefly put are these.
2. The Box and Carton Works Mazdoor Union (hereinafter called the respondent-Union), made an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for reinstate--ment of three office-bearers of the respondent-Union namely Fariduddin, Abdul Aziz and Yasin Baig, on the ground that the services had been illegally terminated on 30th October 1972, by Messrs Box & Carton Works here--in after called the appellant). It is stated by the respondent-Union that there was a settlement between the Union and the appellant on 14th September. 1972. The appellant tried to annul the terms of the said settlement. With that view the appellant started unfair labour practice. The three office---bearers, named above, were dismissed as a result of unfair labour practice on the part of the appellant.
3. The appellant-Company, it was urged, had removed some assets from the factory premises without permission of the Labour Court, which amounts to violation of section 47-A of the Ordinance. On these: facts, it was prayed that the said three office-bearers may be re-instated with full bade benefits and that the appellant-Company be restrained from removing further assets.
4. In reply, the appellant-Company stated that it was forced to close down the Printing Section on 30 October 1972, because of economic reasons. As a result the services of five workers wereth terminated, including the three office-bearers, mentioned in the application. It was denied that the Company had committed any breach of section 47-A of the Ordi--nance.
5. The learned Labour Court came to the conclusion, in the first place that Standing Order 11 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), did not permit the Company to stop a Section of its establishment. The Court further observed that it applied only in the case of fire, break-down of machinery or shortage of supply of raw material. The Court concludes that the appellant- Company acted arbitrarily in closing down a section of the Printing Press. The learned Labour Court further, without giving any good reason held that the Company had victimized the workers and acted mala fide. On these conclusions, it ordered, that three of the office-bearers of the respondent-Union and to other workmen, about whom no prayer was made by the Union, should be re-instated with full back benefits.
6. Mr. Khalid Jamil the learned Advocate for the appellant, contended in the first place, that the Standing Orders Ordinance did not apply to the industry of the appellant, as it did not employ the requisite number of workmen. He contended that it employed only 13 persons. It is not possible to entertain this objection, as this point was not taken in the reply) filed by the appellant. It is a mixed question of fact and law, as to whether)" the Standing Orders Ordinance applies to a certain concern or not. It depends on the evidence. The respondent-Union, in the absence of any plea, was not in a position to meet this belated point raised by the appellant in the affidavit filed by it. It is note worthey that the affidavit of Mr. Sheikh Moin-ud-din, Partner of the appellant concern was filed on 26th January 1973, after the close of evidence on behalf of the respondent-Union. The respondent-Union, therefore, had no opportunity to meet the point that the concern employed less than the requisite number of persons. The objection, therefore, is overruled.
7. In the next place, it was contended that the learned Labour Court acted illegally in ordering the re-instatement of to of the workmen about whom the respondent-Union did not make any prayer.
In this connection, the prayer of the respondent-Union may be reproduced, which runs as under "(a) ....------.
(b) An award to the effect that the ouster from service of Messrs Farid Khan, Abdul Aziz and Yaseen Beg is perfectly illegal and as a recourse to victimization, it may also be held and awarded that the above-said office-bearers are entitled for re-instatement in service with all back-benefits for which an award or direction be kindly issued to the respondents.
(c)------------.
(d)------------.
8. There is no prayer in respect of any other workman for re-instatement. It is noteworthy that Fareed Khan, the General Secretary of the respondent --Union did not allege that Saeed and Shafi were removed from service illegally. Mere removal from service does not mean illegal removal. The mere fact that Mr. Sheikh Moinudddin in his affidavit mentioned that he had terminated the services of to other persons, besides the three mentioned in the affidavit of Fareed Khan, does not justify the Court, in the absence of any relief claimed by the respondent-Union, to order the re- instatement of the other to workers. However, it would appear that the learned Labour Court had ordered the re-instatement of the to workmen without perusing the record. I consider it a serious matter on the part of a Judicial Officer. The General Secretary of the respondent-Union, in his cross-examination, stated as under :- "Muhammad Saeed, Shafi, Yaseen and Abdul Aziz were working with me when I was dismissed.
Their services were also terminated along with me, but subsequently one of them was taken back."
9. The points for consideration arise from the above statement: (1) one does not know which of the to workers. Muhammad Saeed or Shafi was taken back by the appellant-concern, and (2) on the admission made by the General Secretary himself both of the workers could not be re-instated with full back benefits. If the learned Labour Court had made up its mind to order re-instatement of any of the to workmen, Muhammad Saeed or Shafi. He should have at least clarified the position by putting a question to Fareed Khan as to which of the to workmen was taken back by the appellant concern. While all possible indulgence may be shown to workmen, it is the duty of Courts, who are expected to at judicially, not to pass orders on mere surmise or conjecture as benevolent despot. I would hold that there was no justification either in law or fact to order re-instatement of either Muhammad Saeed or Shafi with full back benefits.
10. Lastly, it was contended by Mr. Khalid Jamil, the learned advocate for the appellant, that the concern acted within the provisions of Standing Order 11 of the Standing Orders Ordinance, in terminating the services of the three workmen mentioned in the application of General Secretary. It was submitted that the Company did this, as notices of termination of service of each workman would disclose because of uneconomic Production and limited resources of the concern. The learned Labour Court, in turf concoction, observed as under :-- "According to Standing Order 11 of the Standing Orders Ordinance, it is only in the event of the breakdown of machinery, shortage of supply etc., or due to other causes beyond the control of the employer that he can stop the Section of his establishment, but in the present case the respondents without any reasonable cause arbitrarily closed down the Printing Section. The respondents also did not get any permission of Labour Court to close down the establishment."
11. The conclusion of the learned Labour Court that under Standing Order 11 of the Standing Orders Ordinance a section of the establishment could be closed only in the event of fire, breakdown of machinery, shortage of supply, etc., is clearly not borne out by the provision of law. In this D connection, clause (1) of Standing Order 11 of the Standing Orders Ordinance may be reproduced. It rums as under : "The employer may, at any the, in the event of fire catastrophe, breakdown of machinery or stoppage of power supply, epidemics, civil commotion or other cause beyond his control, stop any section of the establishment, wholly or partially for any period or periods without notice."
12. The words "or other causes beyond his control" in clause (1) of Standing Order 11 of the Standing Orders Ordinance should not be given a limited interpretation. To my mind the language of clause
(1) of Standing Order 11 is quite clear. The employer can stop the work for causes beyond his control ' which would include financial difficulties and also uneconomic production. On the face of it, an employer could close a section of its concern for good cause, for instance, lack of funds. There is nothing in the statement of Fareed Khan. General Secretary, to suggest that the Proprietor of the concern had no financial difficulties or the production was not uneconomic. The conclusion of the learned Labour Court that the appellant closed down the Printing Section arbitrarily is not based on any evidence. The conclusion is a mere surmise on his part. If the learned Labour Court had Standing Order 11-A of the Standing Orders Ordinance in his mind while quoting Standing Order 11 of the Standing Orders Ordinance, it may be mentioned that Standing Order 11-A was introduced in November, 1972 and was not given retrospective effect. Moreover, only the Printing Section of the establishment was closed down in October, 1972.
13. I could not follow the reasoning of the learned Labour Court in making the following observation : "With regard to the termination of five workers, they are said to have been dismissed on 30-10-1972, but the respondent's Partner in his cross-examination has admitted that on 30-10-72, all the workers were on duty, his evidence therefore cannot be believed that their services were terminated on that day."
14. The mere fact that the workers were working on 30th October 1972 is no ground for the conclusion that their services could not have been terminated on 30th October, 1972. It is the case of the respondent --Union itself that the services of the three persons mentioned in the application were terminated on 30th October, 1972. It would appear that the observation is against the admitted position of the parties.
15. There is no ground for disbelieving the version of the appellant cencern that the workers refused to accept notices of termination on 30th October, 1972 and, therefore, they were sent three Registered Posts. Para--graph 5, of the affidavit of the General Secretary, runs as under: "That the above said ouster has been effected from 30th November. 1972, in a malicious manner by virtue of verbal refusal and ban of entry which tantamount to an illegal lockout and wrongful dismissal."
16. This lends support to the statement of the appellant concern that an attempt was made to serve the notice on the workmen on 30th Octber 1972. There is apparently a mistake in the affidavit about the date It should be 30th October and not 30th November. The Registered Letters were sent to the workmen on the very next day, i.e. On 31st October 1972. The fact, however, remains that the workmen knew about the termination of their services from 30th October 1972.
17. The following observation of the learned Labour Court is wholly against the record : "I am also not going to believe the respondent's version that the workers refused to accept the letters of termination of service and then they sent the same by Registered Post but Registered letters bear the postal stamp of 31-1-1972, which means that these letters were subsequently managed by the respondent to regularise their action."
18. The Registered Letters addessed to the workers, namely, Abdul Aziz, Yassen Beg and Fareed Khan, are on the record of the learned Labour Court. They clearly bear the Postal Stamp of 31-10- 1972 and not 31-1-1972. This is a serious misconstruction of the record of the case. The misconstruction of the record of the case may not be material, but such a carelessness on the part of a Judicial Officer might affect the faith of a litigant in his capability.
19. I am inclined to order re-instatement of the three workmen mentioned in the application of the respondent-Union, namely Fareed Khan, Abdul Aziz and Yaseen Beg on a different ground than what the learned Labour Court took. I have come to the conclusion after perusal of Standing Order 11 read with Standing Order 12 of the Standing Orders Ordinance that the services of these three workmen were not terminated in accordance with Standing Order 12 of the Standing Orders Ordinance. In this connection, clause (3) of Standing Order 12 of the Standing Orders Ordinance may be reproduced. It runs as under: "Where the employment of any workmen is terminated, wages earned by him and other dues including payment for unavailed leave as defined in clause (1) of Standing Order 8, shall be paid before the expiry of the second working day from the day his employment is terminated."
20. A perusal of the notices terminating the services would show that the workmen were not called upon to come and collect their dues. There is also nothing on the record to show that the workmen were paid their dues or that any attempt was made to pay them on 31st October 1972. In my opinion, the notice terminating the services of the workmen should, on the F face of it, disclose the intention of the employer to comply with the provisions of Standing Order 12 of the Standing Orders Ordinance. In the face of such an omission, I would hold that the appellant concern failed to terminate the services of the three workmen in accordance with Standing Orders 11 and 12 of the Standing Orders Ordinance.
21. I would, for the reasons given above, modify the award of the learned Labour Court and order the re-instatement of Fareed Khan, Abdul Azizi and Yasen Beg with full back benefits. It would, however, be open to the appellant to terminate the services of these workmen in accordance with law after complying with Standing Orders 11 and 12 of the Standing Orders Ordinance.