FAZLUR REHMAN Versus NAGARIA TEXTILE MILLS LIMITED, KARACHI

DECISION

These three appeals from the order of the Labour Court, arise in the following circumstances:‑

2. The facts forming the background of the cases are rather chequered. Sometime during the mid‑1980's the services of the 3 appellants were terminated and they had filed petitions before the Labour Court ending in dismissal. Then appeals were preferred and the orders of the Labour Court were set aside by this Tribunal on 29‑8‑1988. This order of the Tribunal was assailed in a writ petition before the High Court whereat the appellants brought it to the notice of the learned Judges that in spite of the order of reinstatement by the Tribunal they were being gate‑stopped. The order of the High Court in that context might as well be reproduced in extenso:‑

"Choudhry Rashid Ahmed, Advocate for the petitioner, has submitted that the petitioners have been impressing upon respondent No. 2 to resume the duty but he has not reported for the duty."‑

Whereas, Mr. Mirza Muhammad Kazim learned counsel for respondent No. 2 submits that factually respondent No. 2 has been reporting for duty to the petitioners, but they have been avoiding, taking him on duty.

It is agreed that Mr. Mirza Muhammad Kazim would escort the private respondent to the petitioner's factory on 10‑5‑1989 at 8 o clock, and would contact the Security Officer who would take on duty the above respondent and would issue the necessary attendance card. After the resumption of the above duty, the petitioners shall pay the salary directly to the private respondent, but the arrears would be deposited by the petitioners within a period of one month with the Nazir of this Court. The above order is without prejudice to the right of both the parties."

3. The respondents had to bow before the order and Mr. Kazim learned counsel for the appellant took them inside the factory and arranged to get their attendance cards also. However, within 10 days or so of the reinstatement the respondents terminated the services of the appellants on the ground that they did not require any weavers in the mill. The letter inter alia mentions that "your services are thus not required for want of vacancy/work and it is not possible to retain you in service as weaver, and pay the wages". They were however offered one month's wages in lieu of the notice.

4. The appellants on the receipt of the letters sent grievance notices but through oversight these were without signatures. Reply was received, wherein it was inter alia pointed out that the notices‑were without signatures. Apprised of this oversight they repeated notices which admittedly were served on 29‑7‑1989. This time there was no reply to the notices with the result that the appellants filed petitions before the Labour Court.

5. The appellants appeared as their own witnesses, before the Labour Court and there was one witness on behalf of the respondent. The petitions came to lye dismissed, on the ground of limitation. The order was set aside by the Tribunal. It was found that the receipt of the second grievance notice was accepted by the respondents in their pleadings and that was corroborated by the evidence also as led by the parties. Inter alia it was observed that the "failure of the respondent to produce original grievance notice received by him on 29‑7‑1989 would raise presumption against them". As a result the case was remanded to the Labour Court for decision on merit. However it was observed that it would be just and proper "that the respondent mill also be given chance to produce evidence and if the appellants find it necessary, they may also be allowed to produce evidence in rebuttal."

6. The appellants did not lead any further evidence. However, the respondents examined Javed Iqbal. As neither any evidence bearing on the issue had come on the record, nor the original notice had been produced, the Labour Court found that the matter was concluded so far as the point of limitation was concerned. However, it came to the conclusion that the Weaving Section was on contract and it was, for the appellants to prove that the contractor was an employee of the respondents. I am afraid this reasoning as given by the Labour Court is absolutely insupportable. Except for the bare words of Javed Iqbal that the Weaving Section had been leased out, there is no other support forthcoming in that context. Even the person to whom the lease had been given has not been mentioned, not to say of the production of the lease document or the evidence of the attesting witnesses or the executants of the document if any. There was just a composite question put in the cross -examination to which Fazlur Rehman had given the following reply:‑

"It as a fact that I was terminated from service on the ground that respondent has given its Weaving Department on contract. However the person posing to be contractor is in fact employee of the respondent. It is incorrect to suggest that the Weaving Department is leased by the respondent after my termination from service."

7. This can hardly be said to be an admission or sufficient to absolve the respondent from proving that the Weaving Department had been given on contract to somebody. That being the situation and the mill being run by the respondent the notice in question demonstrably had not given sufficient reason to justify the termination of employment. There is ample law in that context see Aijaz Hussain Shah v. Zaman Textile Mills 1976 PLC page 637; (2) Nayab Ali Khan v. Pak. Automobile Corporation 1989 PLC 845.

8. Mr. Latif Saghar learned counsel for the respondent urged that in the event of the appeals being allowed, the appellants may not be given full back benefit. I am afraid, I cannot accede to the request looking to the distress they went through, as shown by the order of the High Court reproduced earlier. It was observed by the Supreme Court in National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another 1991 PLC 213 that "once the Labour Court or the Labour Appellate Tribunal comes to the conclusion and gives a finding that the termination of the services of an employee is unlawful the employee should, as a matter of course be granted back benefits unless the employer is able to establish by cogent evidence that the employee was gainfully employed elsewhere."

9. I will therefore set aside the orders passed by the Labour Court and allow the appeals. The appellants will be reinstated with full back benefit.

H.B.T./2041/Lb.S Appeals allowed.