Find a Lawyer

Appeal No. KAR‑445 of 1976, decided on 20th December 1976.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)------‑

‑‑ S. O. 11‑A‑Closure of establishment‑Retrenchment of less than 50% of total number of workmen without permission of Labour Court Held, not in violation of S. O. 11‑A.

Ghulam Hassan for Appellant.

Kohistani for Respondent,

These are 24 appeals against the order of the Labour Court involving common ground.

2. The respondents were working as weavers in the Weaving Depart ment of the appellant. Since the production of weaving fabric was found to be uneconomical the work was completely stopped and layoff was effected from 27th December 1975 to 9^thJanuary 1976. There was no improvement in the conditions which were prevailing and therefore the Weaving Depart ment was permanently closed w. e. f. 10^thJanuary, 1976. In that department there were in all 55 workmen who3e services were terminated. Out of them 31 workmen served grievance notices and approached the Labour Court under section 25‑A, I. R, O. for re‑instatement. Subsequently, there was settlement with 7 workmen and, therefore there remained the present 24 respondents whose cases were decided by the Labour Court.

3. The applications were resisted and various grounds were taken. One of the grounds taken was that there had been no Violation of Standing Order No, II (A) of Standing Orders Ordinance and therefore the termination of services was not open to any exception.

4. The respondents had filed the affidavit of Mohammad Rahim. Subsequently, it was agreed by both the parties that the cross‑examination of Mohammad Rahim be treated as evidence in all the cases. As a result of this agreement Mohammad Rahim was cross‑examined. During the cross‑examination he denied having filed any affidavit. He however admitted that the Weaving Department was closed.

5, The learned Presiding Officer entertained the view that the appellant had not proved that the employment of less thin 50% of the workmen was terminate) and since no permission by the Court was sought to close down the establishment, the termination of service was illegal and invalid. The remaining objections raised by the appellant were also repelled. With the result that the re‑instatement of all the 24 respondents was ordered. Aggrie ved by this the present appeals had been filed.

6, The only question which has been agitated before me is whether there has been violation of Standing Order No. 11 (A). In order to appreciate the legal implication it is necessary to reproduce it. It reads as under:‑

"Notwithstanding anything contained in Standing Order 11, no employer shall terminate the employment of more than fifty percent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of firs catastrophe, stoppage of power supply, epidemics or civil com motion,"

7. It is an admitted position that the Weaving Department of the mill was closed and the services of 55 workmen were terminated. According to the aforesaid Standing Order permission of the Labour Court is required in case the termination of the employment of more than 50%. of the workmen is effected. The respondents led absolutely no evidence to establish that more that, 50%. of the workmen were retrenched as a result of the closure of the department. The burden of proof was upon the respondents. It is rather unfortunate that the Labour Court erred in entertaining the view that the burden of proof rested upon the appellant. I asked the learned counsel for the respondents to point out from the record whether at any stage it yeas pleaded that the workmen whose services were terminated were more then 50% but he failed to point out. His only reply was that a plea was taken that there was a violation of Standing Order No. 11 (A). In may view this was not enough. It being a question of fact ought to have been specifically pleaded. On the contrary, the learned counsel for the appellant produced before me statement indicating that there were 360 workmen in the mill before retrenchment and after retrenchment of 55 workmen there still remained 305 workmen. Since this statement has been produced before me for first time, I may not attach much value to it as the other side has no opportunity to rebut it, but as already observed the burden of proof lay upon the respondents and they failed to discharge it. Since it has not been established that the workmen whose services were terminated were more than 50% of the workmen of the establishment there has been no violation of Standing Orders 11 (A) of Standing Orders Ordinance.

8. In the result the appeals are allowed and the order of the Labour Court is set aside. The applications made under section 25‑A, I. R. O. stand dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.