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Appeals Nos. KAR‑503 to 506 and 527 of 1981, heard on 9^th December, 1981.

‑‑‑ S. O. 8‑A read with West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance (VI of 1968), S. Os. 11 & 12‑Retrenchment‑Second shift of Mills closed down due to non‑availability of electricity and load sheeding resulting in cut‑off of electricity for one to two hours during second shift time‑Retrenchment of juniors in circumstances, held, justified‑‑Contention that application of Trade Union of which some of retrenched workers were office‑bearers pending registration with Registrar‑‑Intimation of names of such office bearers to employer before passing of termination order not established‑ Violation of S. 8‑A of Industrial Relations Ordinance, 1969, in circumstances, held, could not be assumed.

Sultan Ansari for Appellants.

Riaz Baloch for Respondent No. 1.

Masood Ahmed Khan for Respondent No. 2.

Pate of hearing: 9th December, 1981,

The 5'appellants filed separate grievance petitions en the IIIrd Labour Court, Karachi, claiming that they had been employed in the Rashid Textile Mills Ltd., the second respondents herein, through M. Durvesh M. Rafique & Co., the first respondents herein, but during the pendency of an application for the registration of the Yousuf Allah Dad and MDMR & Co., Weaving Contractor of Rashid Textile Mills Labour Union, of which they were office‑bearers members their services were illegally terminated by the respondents. The first respondents, while admitting that the appellant had been their employees whom they had engaged for the purposes of the contract under which the weaving work of the second respondents was to be undertaken by them, contended that the services of the appellants had to be retrenched on account of the non‑availability of electricity in the shift in which the appellants were employed. As regards the second respondent, they disclaimed any liability in respect of the appellants and contended that they were the employees of the contractor and not of the mills. The learned IIIrd Labour Court, by its decision, given on 30th August, 1981, has dismissed, by a consolidated order, the grievance petitions of the 5 appellants, holding that the appellants were the employees of the first respondents who had validly terminated their services for a genuine reason and that in doing so, they have not violated the principle of "last in first to go out". The learned Labour Court further was of opinion that though the services of the appellants had been terminated during the pendency of an application for the registration of a trade union of which the appellants were members/office‑bearers, intimation of the names of the office‑bearers and the making of the application for the registration of the union was received by the respondents from the union on 13th April, 1981, after the services of the appellants had been terminated on 11th March, 1981. Dissatisfied with this order, the appellants have filed separate appeals against the same. This order will dispose of all the 5 appeals.

2. I have heard Mr. Sultan Ansari, the learned representative for the 5 appellants, as also Mr. Riaz Baloch, the learned counsel for the first respondents, and Mr. Masood Ahmed Khan, who appeared for the second respondents. It was conceded by Mr. Sultan Ansari that the appellants are the employees of the first respondents and not of the second respondents. This submission of his gains support from the facts that not only the grievance notice by the appellants was given only to the first respondents, but that further intimation of the formation of the union was given to the first respondents and not to the second respondents. A perusal of that intimation shows that the proposed union of workmen was to consist of the employees of the first respondents and another contractor of the second respondents, Messrs Yousuf Allah Dad Weaving Contractor. It is thus clear that the second respondents were not the employer of the appellants and that they have been needlessly dragged in these proceedings by the appellants.

3. So far as the first respondents are concerned, they have admitted in their written statement that they are the employers of the appellants. As such, there would appear to be no controversy on the issue that the appellants were the employees of the first respondents.

4. It next falls to be considered whether the services of the appel lants were validly terminated by the first respondents. It is the case of the first respondents that the services of the appellants had to be retrench ed because no electricity was available for the second shift in which the appellants were working. The letters of termination of services of the appellants, which are all dated 11th April. 1981, 'specifically recite that due to daily four hours load sheding in the supply of electricity to the mills/ contractors, it had been decided to close down the second shift, the timing whereof was from 3.00 p. m. to 11.00 p. m., and accordingly to terminate the services of the appellants, who were the junior most workmen in the second shift. Along with the 5 appellants, the services of 49 other workmen, employed in the second shift, were terminated by the first respondents on the above ground. These 49 workmen appear to have been satisfied with the orders of termination of their services. At any rate, they have challenged these orders through the Labour Courts.

5. Appellant Muhammad Shireen, who was the only witness examined on behalf of the appellants before the learned Labour Court, and whose evidence was, by consent of the parties, deemed to be common to all the 5 grievance petitions, has not only admitted that he was employed in the second shift, but has also admitted that the electricity used to remain off from one hour or so from 7.00 p.m. On the other hand, it has been stated by M. Rafique, who has been examined in the Labour Court that the stoppage of the electric supply used to occur, from 5.30 p.m. onwards, Even, if it be assumed for arguments sake, that the electric supply, during the second shift, used to remain cut off from one to two hours, as admitted by appellant Muhammad Shireen, there would be a valid justification for the employer to close. down that shift, as in such case the working in that shift would be un economic. I am, therefore, of opinion that there was ample justification for the first respondents to terminate the services of the 5 appellants who are said to have been the junior most employees in the second shift.

6. It was next contended by Mr. Sultan Ansari that the principle of "last in first to go out" was not observed by the first respondents and there were other employees of the first respondents who were retained in services, when the services of the, appellants were retrenched. He was, however, unable to refer to me to any evidence in support of his conten tion. Even, the appellant, Muhammad Shireen, in his evidence before the learned Labour Court, has not specifically claimed that the principle of "last in first to go out" was not followed by the first respondents, and has not given name of any alleged junior workman, whose services were retrenched, when the services of the appellants were terminated on 11th April, 1981. I am, therefore, of the view that there is no substance in the contention of Mr. Sultan Ansari that the principle of "last in first to e go out" has been violated by the respondents.

7. It finally falls to be considered whether the services of the appel lants were terminated in violation of the provisions of section 8‑A, I. R. O. The said section prohibits, save with the permission of the Registrar, the transfer, dicharge, dismissal or award of other punishment to an officer of a trade union or workmen‑, during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of the officers to the employer in writing. Even, if it were to be considered that the bar C contained in the said section is applicable to termination of services simpliciter, then, also in the instant case, there appear to have been no violation of the provisions of the said section. The burden of I' proving that the employer was intimated the names of the office‑bearers, of the union was on the appellants. No doubt, it has been admitted by the first respondents that they had received a registered letter from the General Secretary of the Yousuf Allah Dad and MDMR & Company Weaving Contractor of Rashid Textile Mills Labour Union, but according to witness M. Rafique, the said intimation was received by them on 13th April. 1981 at 10.00 a m., which date and time was endorsed on the intimation received from the union, while the services of the appellants had been terminated 2 days earlier on lath April, 1981. Neither the postal receipt in respect of the said intimation was produced by the appellant nor way any one examined from the postal Authorities to establish that the cover containing the above intimation was delivered to the first res pondents before 11th April, 1981. A registered cover has undoubtedly been produced in the case but that is addressed to the second contractor Messrs Yousuf Allah Dad, the other contractor of the second respon dents, and this cover, therefore, cannot be considered to be proof of the requisite intimation to the first respondents a id3r section 8, I. R. O. There is thus, no evidence to rebut the evidence of M. Rafique that the intimation regarding the formation of the workers action, and t to names of office‑bearers was received by them on 13th April, 1931.

8. For the reasons discussed by me above, I find no merit in these 5 appeals and would accordingly dismiss them.

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