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Petitioner: M/s. NICHIMEN CORPORATION, KARACHI VS Respondent: CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL, GOVERNMENT OF SINDH, KARACHI
1993 P L C 320
1993 P L C 320
[Karachi High Court]
Before Nasir Aslam Zahid; C.J. and Ahmed Yar Khan, JJ
M/s. NICHIMEN CORPORATION, KARACHI
versus
CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL, GOVERNMENT OF SINDH, KARACHI and 2 others
C.P. No. 1332 of 1992, decided on 9th July, 1992.
(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑
‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Competency of‑‑‑Grievance petition filed by employee against his dismissal from service was challenged by employer contending that same was not competent as employee had himself admitted that employer was registered under West Pakistan Shops and Establishments Ordinance (VIII of 1969)‑‑‑Provisions of Standing Orders Ordinance (VI of 1968), being attracted to employer only on basis of submission that employer was registered under Ordinance (VIII of 1969), it could not be held that grievance petition of employee was not competent or not maintainable.
Abdul Razzaq v. M/s. Ihsan Sons Ltd. and 2 others 1992 SCMR 505 ref.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑
‑‑‑‑S.1(4)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Concurrent finding of fact that Ordinance, 1968 was applicable to petitioner could not be interfered with in Constitutional jurisdiction of High Court.
(c) Industrial dispute‑‑‑
‑‑‑‑ Termination of service‑‑‑Reinstatement‑‑‑Neither enquiry officer was produced in evidence nor enquiry report was placed on record by the employer‑‑‑Even charge‑sheet had not been produced in evidence‑‑‑On merits also no case was made out for interference‑‑‑Employee was rightly reinstated concurrently by Courts below.
I.H. Zaidi for Petitioner.
Muhammad Ashraf for Respondent No. 3.
ORDER
NASIR ASLAM ZAHID, CJ:--‑Petitioner‑Corporation (Employer) filed this Constitutional petition challenging the impugned orders dated 3‑2‑1992 and 1‑6‑1992 of ` the Sindh Labour Court and the Sindh Labour Appellate Tribunal respectively. By order dated 3‑2‑1992, the Labour Court allowed the application under section 25‑A of the Industrial Relations Ordinance, 1969, ordering reinstatement of respondent No. 3 (employee) and directing that a fresh enquiry may be held against the employee and concluded within two months and the question of grant of back benefits was left subject to result of the fresh enquiry. Both the petitioner as well as the employee filed appeals. The employee had filed appeal challenging the order of fresh enquiry and refusal of back benefits. By the consolidated impugned order dated 1‑6‑1992, the Sindh Labour Appellate Tribunal dismissed the appeal of the petitioner d the appeal of the employee was allowed to the following extent:---
"The learned Presiding Officer had directed the petitioner's reinstatement but ordered a fresh enquiry which was to be concluded within a period of two months. The question of the back benefits as per order was to be subject to the finding thereof. I do not think this part of the order can be maintained. Muhammad Hanif had clearly mentioned in his petition that he was jobless and in the circumstances he will be entitled to receive full back benefits as held in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal and others 1991 SCMR 2087. I will also modify the order of the learned Labour Court wherein it has been said that there shall be a fresh enquiry conducted against the appellant Muhammad Hanif within a period of 2 months. This part of the order looking to the circumstances was hardly warranted. The Appeal No. KAR‑100 of 1992 filed by Muhammad Hanif Siddiqui is allowed. However, it will be open to the Corporation to hold a fresh enquiry against the appellant if they so desire."
We heard the arguments of Mr. I.H. Zaidi, learned counsel for the petitioner and also Choudhry Muhammad Ashraf, Advocate, who appeared on behalf of the employee pursuant to pre‑admission notice on 1‑7‑1992 and, on the contusion of the submissions, by a short order passed the same day, the petition was dismissed in limine. Reasons for dismissal of the petition are contained in this order.
The first contention of learned counsel for the petitioner was that the application of the employee under section 25‑A of I.R.O. was not competent as the employee had admitted in his cross‑examination that the petitioner was registered under West Pakistan Shops & Establishments Ordinance, 1969. Mr. Ch. Muhammad Ashraf, learned counsel for the employee referred to a recent decision of the Supreme Court in the case of Abdul Razzaq v. M/s. Ihsan Sons Ltd. and 2 others 1992 SCMR 505, where it has been held that if the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are attracted to a particular establishment, the mere fact that such a commercial establishment might have been registered under the West Pakistan Shops & Establishments Ordinance, 1969 would not exclude the application of the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Only on the basis of submission that the petitioner Corporation is registered under the Shops & Establishments Ordinance, 1969, therefore, it cannot be held that the application under section 25‑A of the I.R.O. of the employee was not competent or not maintainable.‑
It was then contended by Mr. I.H. Zaidi, learned counsel for the petitioner that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable to the petitioner Corporation inasmuch as the number of employees in its office were less than 20 and the concurrent finding of Labour Court and the Labour Appellate Tribunal that petitioner's employees numbered 20 or more is not based on evidence and as such liable to be set aside. The finding of the Tribunals is not liable to interference in Constitutional jurisdiction. Reference may be made to the cross‑examination of Abdul Majeed, representative of the petitioner before the Labour Court. During the cross‑examination, he stated as follows:‑‑
"It is incorrect that as per Annexure `A‑9' to affidavit‑in‑evidence there are 33 employees in Karachi office of the respondents (the petitioner‑Corporation)., I see Form 2 and say that if bears the signature of Hamada. I produce it as Exh. 4/A. It is correct that he has shown the number of employees as 20, but without checking the record I cannot deny nor assert regarding the number of employees as 20."
The case of the 8mployee was that there were more than 20 employees in the petitioner's office at Karachi. The petitioner could have produced the record to show the exact number of employees, which was not done. On the contrary, the representative of the petitioner in cross‑examination admitted the document signed by another representative of the petitioner by the name of Hamada (Exh. 4/A), in which admitted document, the number of employees at Karachi of the petitioner‑Corporation was shown as 20. From the part of cross -examination reproduced above, it follows that the representative of the petitioner in the witness‑box could not deny the correctness of the said document, which document was the document of the petitioner itself. We find no illegality in the concurrent finding of the Tribunals that West Pakistan Shops and Establishments Ordinance, 1969 was applicable to the establishment of the petitioner at Karachi.
On merits, it, was argued by Mr. I.H. Zaidi, learned counsel for the petitioner that no case had been made out by the employee that his termination was illegal. According to the learned counsel a proper enquiry was held as' a result whereof further action was taken and services of the employee were properly dispensed with. Here also there is a concurrent finding of the Tribunals against the petitioner. We have also noted that admittedly neither the Enquiry Officer was produced in evidence nor the enquiry report placed on record. Even the charge‑sheet had not been placed in evidence when the case proceeded before the Labour Court. On merits also, no case is made out for interference.
As regards back benefits, it was submitted by Mr. I.H. Zaidi, learned counsel for the petitioner that as it had been left open to the petitioner to hold the fresh enquiry against the employee, the direction of the Labour Court that the back benefits will be subject to the result of fresh enquiry did not call for any interference. Para. 16 of the impugned order dated 1‑6‑1992 of the Labour Appellate Tribunal has been reproduced hereinabove and, in the facts and circumstances of this case, we are of the view that no case is made out for interference with the order of the Appellate Tribunal that the employee was entitled to back benefits.
For the aforesaid reasons, by our short order dated 1‑7‑1992, we had dismissed the above petition in limine.
H.B.T./N‑451/K Petition dismissed.