DILKUSHA ENTERPRISES Ltd. vs ABDUL RASHID And Other

ORDER

ZAFAR HUSSAIN MIRZA, J.--The petitioner in this case is a private limited company which according to it had to establishments at their factory site one consisting of silk division in which 17 workers were employed and the other was a tannery division in which only 3 workers were employed. The respondents Nos. 1 and 2 were employed in the petitioner's silk division which was closed down on account of uneconomic operation on 10-6-1974. Consequently the services of an the 17 workers of the silk division including the above-said respondent were terminated after making payment to them of one month's notice pay.

2. Respondents Nos. 1 and 2 being aggrieved by the termination of their services approached the then 1st Junior Labour Court at Karachi under section 25-A of the Industrial Relations Ordinance.

The 1st Junior Labour Court allowed their applications by the consolidated order, dated 15-8-1974, holding that the closure of factory was mala fide and illegal. By way of consequential relief the Court ordered reinstatement of the said respondents in service with back benefits to the extent of half wages for the unemployed period. The petitioner challenged this decision in an appeal before the Sind Labour Court No. III at Karachi. Respondents No. 1 and 2 being dissatisfied with part of the order only granting half back benefits to them also preferred appeal before the same Sind Labour Court. By consolidated order, dated 14-10-1974, the appeal of the petitioner was dismissed whereas the appeal of the respondents was allowed and "instead of half wages" full back benefits were allowed to the respondents by the Sind Labour Court. The petitioner unsuccessfully challenged the orders passed by the Junior Labour Court and the Sind Labour Court in Constitutional Petition No. 1537 of 1974 in the Sind High Court which was dismissed on 1-11-1976. The petitioner did not pursue his remedy further with the result that the orders passed by the Labour Court attained finality.

3. The controversy in the present petition arose out of an application made under section 51 of the Industrial Relations Ordinance by respondents Nos. 1 and 2 before the Sind Labour Court No. IV, Karachi, for recovery of the amounts awarded to them by the decision of the Labour Courts by way of back benefits as well as the money value of the benefit of re-instatement in service which was not effected by the petitioner. The Sind Labour Court No. IV, Karachi allowed the applications of the said respondents as per its order, dated 10-4-1980 directing the petitioner to make payment of Rs.31,460 to each of the respondents Nos. 1 and 2 within 45 days failing which the amount was ordered to be recovered as arrears of land revenue. This decision of the said Labour Court was challenged by the petitioner in Constitutional Petition No. S-50 of 1980 before the High Court of Sind, which was dismissed by the impugned judgment, dated 30-3-1983. Being aggrieved by the said judgment the petitioner seeks special leave to appeal by this petition.

4. Mr. Abdul Hafeez Memon, learned counsel for the petitioner sought to argue that the orders passed on the grievance application of the respondents Nos. 1 and 2 under section 25-A of the Industrial Relations Ordinance by the Junior Labour Court and the appellate Court, dated 15-8-1974 and 14-10-1974 respectively, were illegal and passed without jurisdiction and, therefore, no proceedings under section 51 of the Industrial Relations Ordinance were competent in law. This question, however, cannot be gone into at this stage and we agree with the view taken by the learned Judge in the High Court that these orders having been challenged in the previous Constitutional Petition No. 1537 of 1974 which was dismissed and no further proceedings were taken to challenge that judgment, the orders have now attained finality and are not liable to be called in question in the present proceedings. The arguments in support of the present petition were, therefore, confined to the order passed on the said respondents' application under section 51 of the Industrial Relations Ordinance. In order to appreciate the argument of the learned counsel it will be convenient at this stage to set out the provisions of section 51 of the Industrial Relations Ordinance which read as under:-- "Recovery of money due from an employer under a settlement or award:--(1) Any money due from an employer under a settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal may be recovered as arrears of land revenue or as a public demand if, upon the application of the person entitled to the money, the Labour Court so directs.

(2) Where any workman is entitled to receive from the employer any benefit, under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal, which is capable of being computed in terms of money, the amount at which such benefit shall be computed, may, subject to the Rules made under this Ordinance, be determined and recovered as provided for in subsection (1) and paid to the workman concerned within a specified date.

5. Now in their application under section 51 of the Industrial Relations Ordinance the respondents had claimed dues with effect from 1-6-1974 until 31-5-1977 on account of salary, cost of living allowance, encashment of unavailed leave and holidays and bonus. The total dues were worked out at Rs.31,460 in each case. In view of the claim for dues extending over a period beyond the date of the appellate order by which the claim was allowed, it was contended by the learned counsel that the Sind Labour Court No. IV, Karachi, had no jurisdiction to order payment of future dues accruing after the date of the order on the application under section 25-A of the Industrial Relations Ordinance. The contention was repelled by the High Court after referring to the provisions of section 51 of the Industrial Relations Ordinance in which under subsection (1) the Labour Court has been empowered to direct the payment of money due from an employer, inter alia, under a decision of a Labour Court, and subsection (2) empowers the Court to direct the payment of the money value in lieu of any other benefit to which a workman is entitled under such a decision. In this behalf the High Court held as under:-- "The other benefit conferred was that the defendants Nos. 2 and 3 shall continue to be in service. As the petitioner failed to re-instate them, the Labour Court was entitled under section 51(2) to compute such benefit in terms of money. This benefit could be nothing else, but the salary which the respondents Nos. 2 and 3 would have earned during the period of employment."

This view is fully supported by a judgment of Shafiur Rahman, J. Of the Lahore High Court (as he then was) in the case of Seigfried Becon v. Punjab Labour Appellate Tribunal PLJ 1980 Lah. 273. We are in agreement with the enunciation of law and the view taken by the High Court following the same. The contention of the learned counsel is, therefore, devoid of force.

6. The next contention advanced by the learned counsel relates to the merits of the dispute between the parties. It was submitted that the rule is well settled that in cases of re-instatement to service the re-instated employee "will be entitled to the back benefits for the period during which he remained out of employment only if he was not gainfully employed". In the premises it was contended that in the present case respondent No. 1 was shown to have been employed elsewhere during the relevant period and yet the Labour Court ordered the payment of the entire dues to him including the period during which he was so employed. In this connection learned counsel referred us to the admission made by respondent No. 1 in his cross-examination before the Labour Court that "I have worked in the Hamayoon Textile Mills for 3 months". The High Court had found no force in this contention on the ground that there was no material on the record on the basis of which the Labour Court could determine the amount earned try the said respondent. We find no error in this reasoning since there is only a bald admission referred to above that the said respondent was employed for a period of 4 or 5 months during 1975 with another employer. There is nothing on the record as to the exact period during which the respondent was employed or the salary he earned during this period to enable the Labour Court to deduct the amount. In any case the contention raised a question of fact within the exclusive jurisdiction of the Labour Court and even if the finding thereon is erroneous, that alone does not vitiate the order passed in the exercise of statutory jurisdiction so as to be struck down in the constitutional jurisdiction by the High Court. Learned counsel sought to place on the record) before us an order passed by a Labour Court on the application of respondent No. 1 against Hamayoon Textile Mills in respect of salary dues awarded to the said respondent but since this document does not appear to have been produced in the evidence before the Labour Court in the proceedings of the present case, we are unable to look into it for any purpose. In connection with this contention it was argued by the learned counsel that the onus to prove that he was not gainfully employed rests on the worker and in the circumstances of this case, therefore, the petitioner cannot be blamed for not leading evidence on this question.

Reference was made to the case of Karachi Transport Corporation v. Jamil Beg 1981 PLC 862 and Bantva Memon, Khidmla Committee v. Naimullah 1981 PLC 178 but we are unable to agree with the broad proposition of law that the initial burden to prove lies upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for, this being a negative fact the worker can hardly establish it with anything substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed.

7. It was further contended that under section 51 of the Industrial Relations Ordinance proceedings can be taken for a direction in respect of a decision of a Labour Court by the appellate Tribunal alone as provided by rule 73 of the Industrial Relations (Sind) Rules which according to the learned counsel empowered the Labour Court in respect of award and the Appellate Tribunal in respect of a decision to determine the money compensation for a benefit under such an award or decision. In the first place the bare reading of rule 73 only makes out that the Labour Court or the Appellate Tribunal each in its own turn would be competent to pass orders determining the money value of a benefit under an award or a decision respectively passed by itself. There is, therefore, no room for interpreting the provision of the said rule to hold that every decision made either by the Labour Court or the Appellate Court can only be enforced for the purposes of section 51(2) by the Appellate Tribunal. Secondly, the plain reading of section 51 of the Industrial Relations Ordinance makes it abundantly clear that the Labour Court has been vested with the power to take proceedings under section 51 in regard to the money due or benefit to be received by a worker, under a settlement or under an award or decision by the. Arbitrator, Labour Court or Tribunal.

8. The last submission of the learned counsel was that the application of the respondents was not competent under section 51 of the Industrial Relations Ordinance but they were required to move the authority under the Payment of Wages Act, 1936. Although this objection was raised before the Labour Court and was overruled, it was abandoned and not raised before the High Court. The petitioner is not, therefore, entitled to raise this preliminary objection before this Court and it is not necessary to go into this objection at this stage.

9. For the foregoing reasons the impugned judgment of the High Court is unexceptionable and this petition is, therefore, dismissed.