' These are five connected Appeals bearing Nos. K-31 to K-34 and K-39 of 1999, under section 37 (3) of the Industrial Relations Ordinance, 1969, against the decision dated 12-3-1999 passed by the learned Labour Court No,3, whereby the grievance applications under section 25-A of the I.R.O., 1969 for reinstatement in service with back benefit were dismissed, by a single judgment.
2. Since common questions of fact and law are involved; it is intended to dispose these appeals by this common judgment.
3. The facts, briefly stated, are that the appellants, who have been permanent employees, of the respondent company, since a long time, but their services were terminated alongwith other 19 workers on 31-5-1995. Grievance notices were given to the respondent company, which were duly replied. Not feeling satisfied with the reply, the appellants filed Grievance Applications Nos. 86, 88, 89, 87 and 85 of 1995 respectively in Labour Court No,3 at Karachi for reinstatement with back benefits.
4. The appellants filed their affidavits in evidence and also examined Muhammad Azeem Awan, Assistant Director Labour, West Division as a witness on their behalf. The respondent did examine one Naveed Ahmed. Director of the Company.
5. The learned Labour Court, from the pleadings of the parties framed the following issues:--
1. Whether the services of the applicants were terminated or retrenched?
What should the order be?
6. The appellants claimed that their services were terminated by the respondent on 31-5-1995.
Whereas the respondent took a plea that their services were terminated by way of retrenchment as they were not receiving orders of tent and due to shrinkage of business, the Company was facing losses constantly which compelled the respondent company to reduce the number of workers and, therefore, as per letter dated 31-5-1995, the management decided to terminate the services of junior workers on the basis of last come first go. The appellants, in cross-examination, admitted that the company had started retrenchment termination of workers since 1985. In the first instance, 95 workers were retrenched, then 72 workers were retrenched and thereafter, 22 workers, including the appellants, were retrenched.
7. On reading the cross-examination of both the parties, it appears that out of the first lot of 95 workers retrenched, 30 workers-Suleman and others had filed grievance petitions in the Sindh Labour Court No,
3. Mr. Saghar produced copy of the decision dated 13-4-1995, passed by the learned Presiding Officer, Sindh Labour Court No,3 in 31 applications (Muhammad Suleman and 30 others) whereby the plea of retrenchment by the respondent company was accepted and all the 31 applications for reinstatement and back benefits were dismissed. As against the said decision, 28 workers filed appeals before this Tribunal, bearing Appeal No, KAR-194 of 1995. Para. 3 of the decision of this Tribunal seems to be relevant. which is reproduced as under:-- ' I agree with the finding of the Labour Court on the same point that election of C.B.A. is not responsible for termination of services of the workers and the management have every right to effect economy on account of losses and reduce the number of workers under Order 12(3) of the Standing Orders Ordinance."
' The order of the learned Labour Court was, thus, maintained and attained finality.
8. The second group of workers, comprising 72 in number, were thereafter, retrenched. Out of said batch of 72 workers, only 12 workers Bannay Mian and others, filed their case before the learned Labour Court. Their applications were dismissed by the Labour Court by a common order. Appeal against the said decision (Bannay Mian v. M/s. H. Nizam Din & Sons) was preferred in this Tribunal, which were also dismissed by the then Chairman Mr. Justice (Retd.) Agha Ali Hyder. The order of the learned Labour Court was maintained and, thus, attained finality.
9. Mr. Saghar submits that earlier six workers Abdul Waheed and five others had also filed a Constitutional petition bearing No,D-835 of 1988 in the High Court of Sindh at Karachi, challenging the decision of this Tribunal given by the then Chairman Mr. Justice (Rtd.) Ali Nawaz Budhani, whereby he had set aside the order of the Labour Court and upheld the appeal, accepting the respondent's plea of retrenchment. A Division Bench of the Hon'ble High Court in the said Constitution petition, upheld the order of this Tribunal and dismissed the petition of the workers against the Tribunal's decision.
10. I have heard the learned counsel for the parties and have perused the order, impugned in the above appeals, minutely.
11. The first submission of the learned counsel for the appellants is that a charter of demand, made by the Union, was pending when the retrenchment took place. It appears from the record that notice for charter of demand was received by the respondent Company in October, 1995 whereas retrenchment was made, as admitted by the appellants, orally by a letter in writing dated 31-5- 1995. The learned Labour Court came to the conclusion rightly that the retrenchment, made by the respondent, does not appear to have any concern with the charter of demand.
12. The next submission of the learned counsel for the appellants is that the principle of last come first go has not been observed inasmu ch as some of the workers, who were retrenched and after they exhausted all their remedies, were re-employed. Mr. Saghar, in reply, submitted that the company has several departments/category of workers. The appellants belong to the Department of Mochi Ithata engaged in stitching the tents. The whole 18 Department of Stitching, in fact, had been closed because there was no orders with the respondent Company.
13. The learned Labour Court has, inter alia, observed that, "the applicant could not name any junior to him, who may have been retained in service". The learned Labour Court has also referred to a number of authorities.
14. Mr. Saghar, placed his reliance on the case, decided by this Tribunal, namely Naeemuddin v. The Sindh Labour Court No, IV, Nazimabad, Karachi and 2 others (1979 PLC 59).
15. After going through the case-law, relied upon by Mr. Saghar, it appears that in the said case, it was held that there is no bar under Standing Orders Ordinance, 1968 to the closure of a Shift, Section or Department, without permission of Labour Court, such closure and consequent retrenchment of workers does not constitute illegal lock-out for the purposes of I.R.O., 1969. It was also mentioned in the said judgment that specific provision for retrenchment of workmen is contained in Standing Order Nos.13 and 14. The case of retrenchment is clearly distinguishable from layoff provided under Standing Order 11; only the workmen, last in the category to which they belong, are to be retrenched.
16. Mr.Rafiq Ahmed, learned Advocate for appellant Qudrat Shah (in Appeal No, KAR-39/99) submitted that the appellant was working in the Dying Department and not in the Mochi Khata.
According to him there are still working five workers, according to the list, attached by him alongwith the memo. of appeal. On the other hand Mr. Saghar, read out, before me the relevant portion from the cross-examination of appellant Qudrat Shah in which he has admitted that, "The Department in which I worked was called as Mochi Khata. It is correct that neither in my grievance petition nor in the grievance notice I have given a single name of any one person who was junior to me and was retained in service or employed fresh after my services were retrenched". In view of this clear admission, I find no force in the submission of the learned counsel for the appellant.
17. The respondent had explicitly given the reasons for termination by way of retrenchment on the ground of financial position of the company and circumstances which forced the company to close down one Section/Department of Mochi Khata. The learned four Court seems to be justified in holding that the retrenchment of the employees was not mala fide.
18. The appellants/workers were, therefore, retrenched in the circumstances.
19. In result, I find no force in the appeals, which are dismissed. Announced in open Court, this the 31st day of May.1999.