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Appeal No. RI/44 of 1978, decided on 8th March, 1982.

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

---S.Os.12 & 11.A--Termination of services due to lawful closure of establishment--Allegations of victimization or mala fide intention not established--Termination order upheld by Tribunal.

Ch. Ghulam Qadir Cheema for Appellant.

Naeem Bokhari for Respondent. Date of hearing: 16th February, 1982.

This appeal arises from the decision dated 26-12-1977 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore, whereby the grievance petition of the appellant for her reinstatement was dismissed.

2. The appellant was employed as Incharge Strip Machine in the respondent Laboratories. Her services were terminated on 14-9-1976 for the reason of non-availability of raw material, refusal of the Government to renew drug manufacturing licence and restrictions placed by the Government in the sale of drugs through hawkers and paddlers. The pleas .on which the appellant challenged the order of her termination were that the order was mala fide, that the appellant was an officer of the trade union, thus she could not be terminated during the pendency of the industrial dispute in violation of the provisions of section 47, that the order of her termination amounted to victimization due to her trade union activities and that the employees junior to her were retained in service. Manzoor Elahi appeared as P.W. 1 in support of the case of the appellant and stated that she was the Treasurer of the Union. However, no documentary evidence was produced, that actually she was office-holder of the Union. Exh. P.3 is the list of the members of the Union which does not show that the appellant was holding any post in the Union. There is absolutely no evidence about the allegation that her termination was mala fide or that she was terminated by way of victimization on account of any her trade union activities. Since the appellant was not as office-holder, only, subsection (i) of section 47 of the Industrial Relations Ordinance, 1969 needs discussion. Taking of permission under section 47 during the pendency of the industrial dispute is necessary, if for any misconduct a worker is to be punished. In the present case, there is no allegation against the appellant that she was guilty of any misconduct or other irregularity, nor she was to be in any manner punished. Clause (b) of section 47(1) reads as under:-

"save with the permission of the Arbitrator, the Labour Court Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute."

The word "discharge" used in clause (b) is conjunctive with the words "dismiss or otherwise punish", therefore, if punishment is to be given by way of termmination for a misconduct connected with the industrial dispute, taking of permission is necessary. If the misconduct has no connection with the industrial dispute, even then taking of permission under section 47 is not necessary. The appellant, therefore, cannot take benefit of section 47 of the Ordinance.

3. So far as her contention is concerned that some ladies junior to her were retained in service it does not stand established. She claimed seniority over Mrs. Salma Begum. Firstly, Mrs. Salma Begum was not serving in the same category in which the appellant was, because the appellant was Spirit Incharge and Mrs. Salma Begum was a Packer and secondly even if it be taken that both of them belonged to the same category and that Mrs. Salma Begum was junior to the appellant, according to Exh. D.1, she was terminated on 5-9-1976 whereas the appellant was terminated on 14-9-1976. It is clear that Mrs. Salma Begum was terminated before the appellant and was not retained in service.

4. Learned counsel for the appellant has also argued that the very closure of the business is against law, because no prior permission was taken under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 from the Labour Court. He also says that permission was taken afterwards. There is no evidence that the whole factory was closed on the day on which the services of the appellant were terminated. In the order of termination, copy of which is Exh. R.1, it is mentioned that the management was unable to terminate the services of more than fifty per cent of the workers at a time although there was no work for any of the workers in the establishment. It is clear that more than fifty per cent workers were not retrenched at a stretch and thus no violation of Standing Order 11-A was made. No documentary evidence was produced by the appellant to show that more than fifty per cent workers were retrenched or that the whole establishment was closed on the date on which the appellant was terminated. The application for permission to close down the whole of the establishment was made on 28-7-1976 and the permission was accorded. This shows that the services of the employees were not terminated with mala fide intention but rather in reality there were goods grounds for termination and for intention to close down the whole of the factory. The order of the Labour Court passed under Standing Order 11-A stands and was not set aside by any higher authority. There is no force in the argument of the learned counsel for the appellant that the provisions of Standing Order 11-A have been violated while terminating the services of the appellant.

5. The grievance petition of the appellant was rightly dismissed by the learned lower Court. There is no force in the appeal, which is dismissed.

M.I.

Appeal dismissed.

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