REHMAN AKHTAR Versus LABOUR COURT NO. III, KARACHI
DECISION
This is an appeal against the order dated 12-12-1990 passed by the learned Presiding Officer Sindh Labour Court No. III at Karachi. whereby the application under section 25-A of the I.R.O., 1969 of the appellant was dismissed.
2. I have heard Mr. Khalilur Rehman learned representative for the appellant and Mr. Muhammad Humayun learned Advocate for the respondent and also I have gone through the record and proceedings of the case.
3. The brief facts of the case appear to be that the appellant was admittedly employee of the respondents. His services were terminated vide letter dated 29th July, 1989 on the ground that his post was abolished due to re-organisation and his services were no longer required. After serving grievance' notice upon the respondent the appellant filed a grievance petition before the learned Labour Court which was resisted by the respondent on the ground that the termination order was legal and further that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to the case of the appellant as he was employed in the Head Office of respondent where less than 20 workers were employed.
4. The appointment 'order which has been produced by RW Ghulam Muhammad Malik, Personnel Manager of respondent shows that the appellant was appointed as Audit Clerk at Head Office w.e.f. 1st December, 1984. This order is an Office Order on the employment form filled by the appellant. No other formal appointment order has been produced ether by the appellant or by the respondent. The appellant has admitted in cross?-examination that there were about 15 persons working in the -Head Office including himself, but he stated in cross-examination that it was incorrect to suggest, that he used to work in the Head Office only but he also used to work in the factory also.
5. The case of respondent is that the Head Office is separate from the factory, which is situated in the S.I.T.E. area whereas Head Office is situated in Side Avenue Centre RA. Lines Karachi and that the Head Office is registered under the West Pakistan Shops & Establishment Ordinance, 1969. In support of their contention the respondents have produced registration certificate Exh. R/1 and registration certificate Exh. R/2. The registration certificate Exh. R/1 is issued under West Pakistan Shops & Establishment Ordinance, 1969 in form which shows the name of the Establishment as A & B Food Industries and the name of employer as Mian Taj M. Yahya, Managing Director. The address of the establishment is shown as 7th Floor Avenue Centre `C' Tower, 264, R.A. Lines, Strachan Road Karachi. This Certificate was issued on 14th June, 1983 and was renewed upto 30th June, 1987. This Certificate shows that above-mentioned establishment had been registered as Commercial Establishment.
6. Annexure R/2 is also Certificate issued under West Pakistan Shops & Establishments Ordinance, 1969 whereby M/s. A & B (Pvt.) Limited has been registered as Industrial Establishment. In this Certificate the name of the Establishment, the name of the employer and address is same as. shown in Annexure R/1. This Certificate has been issued from 1st July, 1989 to 30th June, 1991.
7. Mr. Muhammad Humayun has mainly relied upon the decision of the Sindh High Court at Karachi in the case of M/s. Ahsan Sons Limited v. Abdul Razzak Habib and others 1987 PLC 390. In that case the contention of employer was that the Head Office and factory of the petitioner were 2 distinct entities. Their Lordships observed:
"We are of the view that the mere fact that a company, individual or association of individuals runs or sets up separate establishments at different places would not authorise treating all such establishments to be one establishment either for the purposes of the Industrial Relations Ordinance or the Standing Orders even if there was a provision for transfer of staff from one establishment to another. The petitioner has also invited our attention to the provision of Sindh Shops and Establishments Ordinance. He has also drawn our attention to the certificate i6sued by the competent authority in this behalf. This clearly shows that the head office is separate and distinct entity. In view of this we accept the second contention of the learned counsel for the petitioner and hold that the head office is a separate and distinct entity."
8. Reliance is also placed on the decision of this Tribunal in the case of PIDC v. Khadim Hussain 1980 PLC 1012 where it was observed that "mere fact that the company runs separate establishments at different places does not authorise treating all the establishments as one establishment for the purpose of jurisdiction of Labour Court with reference to place of head office of company". In that case the employee was transferred from head office at Karachi and was ultimately posted in Tarbella Cotton N.-W.F.P. where he was removed from service by dismissal order issued by Project Manager. He however filed his grievance petition with the learned Labour Court at Karachi and this Tribunal for the above reason that Labour Court at Karachi had no jurisdiction held it. In the case of Workers Front Multan Habib Bank Limited v. Registrar of Trade Union it was held by the learned Single Judge of the Sindh High Court that where establishment is bifurcated in two Zones viz. City Zone anti Cantonment Zone, such Zone and establishment were two establishments for purpose of registration of trade union and Certificate to Collective Bargaining Agent in the Zone".
5. It will be relevant to reproduce the definition of establishment under IRO, 1969 which is defined in section 2(ix) which reads as under:--
"Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any (industry); and except in section 22EE, includes a collective bargaining unit, if any, constituted under that section in an.\ establishment or group of establishments;"
10. In the case of Muhammad Aqil v. Sindh Labour Appellate Tribunal and others 1974 PLC 194 the learned Division Bench of High Court of Sindh at Karachi held:
"From the definition of "establishment in the Industrial Relations Ordinance, 1969" it would appear that an employer may have more than one establishment, for example, offices in a commercial area, shops in business area, or one or more industrial units in an industrial area and the "establishment" would include not whole of the establishment of an employer but each of them individually."
11. In the case of Kohinoor Chemical Co. Ltd. and another v. Sindh Employees Social Security Institution PLD 1977 SC 197 their Lordships have interpreted word "establishment". It may be pertinent to reproduce the definition of establishment under the West Pakistan Employees Social Security Ordinance 1965. Section 2(11) defines "establishment" means an organisation, whether industrial, commercial, agricultural or otherwise.
Their Lordships have observed in the above case that the term "establishment" does not appear to be confined in its scope to merely the four? walls of the physical premises where the notified establishment may be located; on the contrary, the definition speaks of an organisation whether industrial, commercial, agricultural or otherwise. In its literal sense an organisation connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society, furnished with organs for the normal exercise of its appropriate functions. It follows, therefore, that an organisation is not necessarily coterminous with the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must, nevertheless be integral to its main functions and objects."
Their Lordships have further observed that a beneficial or remedial legislation is conceived as a means of ameliorating the lot of the working class, and as such, it would be in keeping with the accepted principle of interpretation, that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent".
12. In the case of KMC Sanitary General Employees Union v. Sindh Labour Court No. 1 at Karachi, 1987 PLC 754 learned Single Judge of the High Court of Sindh observed:
"The definition of "establishment in the IRO fails to provide any specific test for determining what is a single establishment; consequently for the purpose of determining whether a branch or a department of a large organisation is a separate establishment one has to depend upon consideration as in the ordinary sense would determine the unity of an industrial or commercial establishment, keeping, of course, in mind and scheme and object of the enactment. The Associated Cement Companies Ltd. v. Their Workmen AIR 1960 SC 56. It was observed by the Supreme Court of India that if in their true relation the parts, branches or units of a large establishment constitute one integrated whole, the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. This, however, was not considered to be the only test as it was further held in that case:--
"Thus, in one case the unity of ownership, management and control may be the important tests; in another case functional integrity or general unit may be important test and in still another case, the important test may be the unity of employment. Indeed in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying three tests arises because of the complexities of modern industrial organisation many enterprises may have functional integrity between factories which are separately owned; same may be integrated in part with units or factories having the same ownership and in part with factories of plants which are independently owned. In the midst of all these complexities it may be difficult to discover the real thread of unity."
13. The consensus in the above case-law appears to be that an individual person group or group of persons or company can possess more than one establishments, but the mere fact that the two sites are located at different places would not necessarily mean that establishments at each site is a separate establishment. It depends upon the facts and circumstances of each case. In the instant case same company under the same ownership and at the same address has been registered with Shops & Establishments Act. Its registration as commercial establishment Annexure R/1 expired on 30th June, 1987 and does not appear to have been renewed thereafter. Under Annexure R/2 respondent has been registered as an Industrial Establishment and this registration was in force at the relevant time. There is no evidence that Head Office was registered separately under Shops & Establishments Act from the factory. No separate registration of factory under any Act has been produced. The Annexure R/2 shows it as Industrial Establishment and would therefore prima facie include the factory, but the address as shown is same as the address of the Head Office. Both S the Head Office as well as factory are owned by one owner and there appears to be functional integrity between the Head Office and the factory. I am therefore, inclined to treat the Head Office as well as factory to be a single establishment. I am fortified in my opinion by the fact that the appellant, who is alleged to be working at the Head Office, was a member of CBA Union and has been elected as office-bearer of CBA Union as per letter of Registrar of Trade Union dated 2-10-1989, whereby change of office-bearers was notified. The appellant is shown a member of Managing Committee of the CBA Union. Court witness Mubashir Mubeen who is employee of the respondent and was General Secretary of the union has produced this letter as Annexure C/1. No doubt this letter has been issued after the termination of service of the appellant on 9-7-1989, but this letter shows that election had already been held and only change of office?-bearers was notified. Court witness Mubashir Mubeen has stated that elections were held on 5th July and the appellant was elected as member of Managing Committee. The respondent has not specifically challenged this part of his evidence in the cross-examination. Admittedly more than 20 workers were working in the establishment of the respondent, which consisted of the factory as well as the Head Office. As such Standing Orders Ordinance, 1968 would be applicable to the case of the respondent.
14. The termination order produced with the grievance application reads as under:--
"The management has decided to reorganise and abolish the post of Audit Clerk. Hence your services with the management are no longer required and the same are hereby terminated on payment of one month notice pay in lieu of notice with immediate effect.
You are therefore, directed to collect your legal dues on any working day from company's Cashier."
15. The bare reading of this order of termination would show that there is proper compliance of Standing Order 12(3). It shows reason of termination as p abolition of post due to reorganisation and therefore the services of appellant were no longer required. .
16. The appellant has alleged that the order in mala fide and he has been victimised because of his trade union activities. It is a settled law that the allegation of mala fides has to be strictly proved by the party, which raises such plea. There is no evidence to show that any other office-bearer of the union was victimised. The Registrar on 2-10-1989 issued the change notifying the office-bearer whereas services of the appellant were terminated on 29-7-1989. Mr. Mubashir Mubeen has stated that he had intimated the change of office-bearers earlier to the respondent. Not only that he has not given the date of such intimation but he has also not produced any copy of letter informing the; respondent about the change of office-bearers. The appellant has further produced an advertisement in Daily Dawn dated July 7, 1989 wherein there is, `?advertisement for the post of internal Auditor and applications are invited to Post Box No. 3616 Karachi. Mr. Ghulam Muhammad Malik, Personnel Manager of the respondent has admitted that this Post Box belongs to the respondent but he has denied to give such advertisement. There is no evidence, that any internal auditor was appointed in pursuance of this advertisement. Mr, Ghulam Malik has stated that their Accounts ?Department carries out the internal audit and therefore the post of internal auditor was abolished. There is-no' evidence to show that any person else was appointed in the place of the appellant or that any person junior to the appellant had been retained as internal auditor -while services of the appellant were terminated.
16-A. The only ground for victimisation averred by the appellant is that he was victimised because he was elected office-bearer of the union. He has admitted that all office-bearers of union of the respondent are in the employment of the respondents. As such there appears to be no special reason for the` respondents to have victimised the appellant.
17. In the circumstances of the case and above discussions the allegation of mala fides does not appear to have been proved. I have already held that the termination order has complied with the provisions of Standing Orders Ordinance, 1968. As such I find no merit in this appeal which is dismissed.
H.B.T./1963/Lb. S ????????????????????????????????????????????????????????????????????????????? Appeal dismissed.