This is an appeal filed under section 37(3) of the Industrial Relations Ordinance, 1969, against the decision dated 2-9-1997 passed in Grievance Application No.22 of 1989 (old number) 159 of 1993 (new number) by the learned Labour Court No.3. Karachi, ordering reinstatement of all the seventeen respondents with back benefits.
2. The facts leading to the above appeal, briefly stated, are that the respondents filed an application under section 25-A(10) of the Industrial Relations Ordinance, 1969 against Mughal Steel Re-Rolling Mills on 1-2-1989 alleging, inter alia, that they were working with the said Mughal Steel Re-Rolling Mills for the last three and half years. They had formed a trade union in the name and style of Mughal Steel Re-Rolling Mills Labour Union which annoyed the management. On 26-12- 1989, when they went for duty, they were not allowed to do so and were gate-stopped removed from employment without issuing any letter of termination. Being aggrieved of the aforesaid gate- stop and removal from employment, they submitted an application against Mughal Steel Re- Rolling Mills to the Joint Director, West Division, Karachi, but with no result. The respondents sent grievance notices under section 25-A of the I.R.O., 1969 (addressed to Mughal Steel Re-Rolling Mills) under registered post on 30-1-1989, but the same were returned unserved with the remarks by the postman "refused to accept." Thereafter, they filed an application under section 25-A(10) of the I.R.O., 1969 for reinstatement with back benefits in the Labour Court. Notices were issued by the learned Labour Court in the name of M/s. Mughal Steel Re---Rolling Mills. The appellant (M/s. Mughal Works) received the said notice and filed the reply statement. It was pleaded that the Court's notices has been delivered to Mughal Works instead of Mughal Steel re-Rolling Mills. Since the address was shown as Plot No.A-36, S.I.T.E., Karachi, it was received by them. Hence, as a preliminary objection, it- was submitted in the said reply statement that the case was liable to be dismissed rejected against M/s Mughal Works being not party to the case. The learned Labour Court, however, proceeded with recording evidence of the respondents. All the 17 respondents filed their affidavits-in-evidence, same and similar in contents, but only three of the respondents namely Mian Said Khizar, Muhammad Riaz Khan and Yousuf Khan, at serials Nos. 1. 2 and 10, were cross-examined. Learned counsel for the parties, however, agreed that the cross-examination of respondents Nos.2 and 10 namely Muhammad Riaz Khan and Yousuf Khan be adopted as cross- examination for rest of the respondents. On behalf of the appellants Muhammad Nawaz and Muhammad Nazar filed affidavits---in-evidence and were cross-examined.
3. The learned Labour Court, after hearing the arguments, passed an order dated 19-7-1992, whereby the grievance petition was dismissed.
4. Being aggrieved with the said order of the learned Labour Court, the respondents filed an Appeal bearing No. KAR-530 of 1992 in this Tribunal, which came up for hearing before the then learned Chairman of this Tribunal. The order, dated 14-10-1993, passed in appeal, being very short, is re- produced below:----- EXTRACT FORM ORDER SHEET 14-10-1993.
Mr. Khalilur Rehman for the appellant. None present for the respondent. Case was decided only on the point of limitation.
Fragmentary disposal of the case is not to be normally resorted to as it entails worry to the litigants.
I will allow the appeal and remand the case back to the Labour Court for disposal in accordance with law.
(Sd.) Appellate Tribunal."
5. Before proceeding further, it seems pertinent to observe that the representative of the workers did not place the facts correctly before the learned Chairman. The decision, impugned in the earlier appeal, was not only on the point of limitation and not at all fragmentary, as mentioned in the order in the appeal. It was a full fledged Judgment on all the points raised before the learned Labour Court, based on facts on record, dealing with the points of maintainability of the application--whether the respondents therein were carrying on their business in the name and style of Mughal Works or Mughal Steel Re-Rolling Mills, relationship of employer and employee between the parties, the point of notice and the question of back benefits were all discussed thoroughly. No plea of limitation was raised in the Labour Court nor it has been raised now.
6. On remand, however, the case was renumbered as 159 of 1993 (which was not necessary as it was remanded to the same Court), The learned Labour Court, after remand, recorded the evidence of the Postman on the point, of service of the grievance notice, but, here I am constrained to make an observation that it took four years to re-decide the case by his Judgment dated 2-9-1997, which has been impugned in appeal before this Tribunal.
7. Mr. Riaz Hussain Baloch, learned Advocate for the appellant (Mughal Works) raised the following pleas:-----
(1) That the Mughal Works is not Mughal Steel Re-Rolling Mills, the entire proceeding was misconceived.
(2) Grievance notice dated 3-1-1989 was addressed to M/s. Mughal Steel Re-rolling Mills and not to Mughal Works. The notice, therefore, is also bad in law.
(3) The finding of the learned Labour Court as to the relationship of the appellant and the respondent are wrong.
(4) In any case and without prejudice to the above, the back benefits, allowed to the respondents are not justified.
8. As regards the first plea, the respondents/applicants did not produce any documentary evidence to show that Mughal Works, the appellant and Mughal Steel Re-Rolling Mills, against whom the application was filed, are one and the same. They, however, produced one witness Gul Khaliq, who inter alia, stated in his affidavit-in-evidence that the respondent (Mughal Steel Re- Rolling Mills) in the grievance application is generally known as Mughal Steel Re-Rolling Mills and the name of the Proprietor is Muhammad Nawaz. The respondents filed grievance application against Mughal Steel Re---Rolling Mills. Grievance notice was also addressed in the name of Mughal Steel Re-Rolling Mills. The appellant maintained, throughout, that they have been running their factory in the name and style of M/s. Mughal Works and not in the name of Mughal Steel Re- Rolling Mills. The appellants produced as many as 16 documents along with their written statement which include licence, dated 12-5-1986 from Central Excise and Land Customs, S.I.T.E., Division, Karachi, its application for renewal, dated 26-11-1986, licence, dated 20-8-1987 to engage in business in connection with excisable goods, tenancy agreement and a number of bank documents, all issued in the name of Mughal Works. This aspect of the matter has been totally ignored by the learned Labour Court in the Judgment in appeal. The Judgment is completely silent on it.
9. It has also come on record that A-36 is an industrial plot. A portion whereof measuring 70 x 80 feet, as per tenancy agreement (Annexur R/5 to the reply statement) belongs to the owner of plot of Barafwala Silk Mills.
10. I, therefore, hold that the appellant (Mughal Works) are not one and the same as Mughal Steel Re-Rolling Mills; as such, the application was mis-conceived and filed against a wrong.
11. It is pertinent to note that this objection was taken by the appellant Mughal Works, on the very first day when they appeared in the Labour Court as long back as 1989. The first paragraph of the written statement mentions such assertion and the documents R/l to R/16 fully support their plea.
No step as to rectify the mistake, on the part of the respondents/applicants was ever taken. As such it is held that the application under section 25-A(10) of I.R.O, was not maintainable as it was filed against a wrong person. The application, thus, falls flat.
12. Dealing with the second point--the grievance notice was sent on 3-1-1989 by registered post which appears to have been presented to the appellants (Mughal Works), as stated by the Postman (whose evidence was recorded later on), It was refused by them as it was addressed to a wrong person, I agree with the submission of the learned counsel for the appellant that the grievance notices, therefore, were bad in law and of no consequence The learned Labour Court, in its judgment, dated 2-9-1997, impugned in this appeal, does not appear to have adverted to this aspect of the matter except referring to the statement of the postman, which has little significance.
13. As regards relationship between the appellant and the respondents, as employer and employees, the finding also appears to be 'misconceived.
The appellants have specifically denied the relationship of employer and employee between respondents Nos. 1, 5, 6, 7, 8, 12 and 13 to 17, but so far as the remaining six respondents are concerned, the appellant admitted that they have been in their employment, but for some short periods, as detailed below: Respondent No.2May, 1986 to May, 1987.
Respondent No. 3September, 1988 only.
Respondent No.4.June, 1988 to July, 1988.
Respondent No.9November, 1986 to June, 1987.
Respondent No. 10July, 1988 to October, 1988.
Respondent No. 11July, 1988. "
It was, thus, incumbent on the said workers to produce some evidence-in---proof of their assertions that they worked for -three and a half years, which is' disproved by the official documents, produced by the appellate, as referred to in para.8 above. The Mughal Works started its business in the middle of 1996 as also proved by the Tenancy Agreement and the letter of commencement of business, As such, the appellant came into existence in the I middle of 1996. It was, thus, nonexistent in 1985. It is settled law that whoever claims certain rights in his favour has got to prove the same.
14. At this stage, Malik Noor Khan, Learned counsel for the respondents offered that he will withdraw his case, if the appellant, present in the Court, makes a statement that the eleven workers did never work in his factory. Muhammad Nawaz, Proprietor of the appellant made such a statement on Oath. The learned counsel for the respondents filed a statement withdrawing the case, filed by 11 workers as not pressed. The remaining six respondents namely Muhammad Raees Khan, Gul Dali Khan, Sher Muhammad, Fazalur Rehman Yousuf Khan and Guncha Gul have been in the employment of the appellant M/s Mughal Works, though for a short period, I asked Mr. Riaz Hussain Baloch, the learned Counsel for the appellant, if his client was ready to take back into employment the said six workers/respondents named above, the learned counsel, after consulting with the proprietor of Mughal Works Muhammad Nawaz, stated that they would be ready to re-employ the said six workers and they can even report for duty even tomorrow.
15. Learned counsel for the respondents admitted that the respondents Nos. 2, 3, 4, 9, 10 and 11 are entitled to reinstatement and not re--employment. The submission is not tenable in law. Since it has already been held by me that the grievance application, as framed and filed, was not maintainable and so also the grievance notice as held by me as bad in law and, furthermore, the respondents failed to establish that they all worked as permanent employees for complete three and a half years, question of reinstatement does not arise.
16. As regards back benefits, the respondents simply stated in their affidavits-in-evidence that they were entitled to back benefits, Nothing has been said by them that they remained unemployed from the date of their termination/gate-stop. It is equally unbelievable that an ordinary labour will remain unemployed for about ten years, As such; they are not entitled for the back benefits as also held by the Hon'ble Supreme Court in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCM R 2087).
17. In any case having held that the application itself was not maintainable and the notice was bad in law, it was not necessary for me to go into the question of back benefits, but as offered by the appellant the said six workers namely Muhammad Raees Khan, Gul Dali Khan, Sher Muhammad, Fazalur Rehman, Yousuf Khan and Ghuncha Gul will be re-employed by the appellant, but without back benefits.
18. In result, the appeal stands partly allowed as per statement of the parties