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Appeals Nos. KAR-238 to 241 of 1983, heard on 1st September, 1985.

---Ss. 25-A & 38(3)--Grievance petition--Adjudication of--Labour Court to go into all facts and pass such order as may be just and proper in circumstances of the case--Workman dismissed from service on charge of stoppage of work and illegal strike--Plea that work could not be done due to failure of electricity and there was no strike--Such defence raised after lapse of one year--Labour Court taking into consideration circumstances of electricity failure and passing order of re-instatement with back benefits--Circumstances of electricity failure, held, could not be ignored though stated late by one year--Conclusion arrived at by Labour Court upheld by Appellate Tribunal--No evidence by petitioner that, he was unemployed during intervening period--Circumstances of case, held, did not warrant allowing back benefits.

M.A. Khan for Appellants.

Abdul Majeed for Respondents.

Date of hearing: 1st September, 1985.

These are four appeals against the impugned order passed by the IInd Sind Labour Court at Karachi, on 30-7-1983. I propose to dispose of these four appeals by a single order as the facts and the circumstances are same.

2. The facts as enunciated in the appeal are that, on 28-4-1980. Seventeen coolies (packing workers) went on illegal strike on the ground that one of their colleague who was shifted to another branch should be re-shifted to his original branch. His name was Shahi Mulk. They struck down the work at about 12-30 p.m. and did not resume the duties upto closing of the day i.e. at 4-30 p.m., they were requested to resume the duties but they refused to work. The strike was against the rules provided under the Industrial Relations Ordinance, 1969. Four of the strikers who are named above were charge-sheeted and domestic enquiry was conducted against them. Rest of the strikers were not touched for administrative exigencies. They were accordingly dismissed, from service. They filed the grievance petitions in the Labour Court and the Court reinstated them with full back benefits.

3. The stand taken by the workers was that they did not go on strike and they failed to work on account of failure of the Power or the Electricity.

4. The evidence was recorded in the Labour Court and the matter was argued in appeal by Mr. M.A. Khan for the appellants and Mr. Abdul Majeed for the respondents.

5. The elaborate arguments by Mr. M. A. Khan on the simple matter are that the Labour Court ought to have believed that seventeen workers proceeded on strike, which was illegal. The learned counsel has referred me through the record of the case. The respondent, Idrees and for that matter all the respondents have stated in cross-examination. It is incorrect to suggest that on 28th April 1980 workers had stopped working on account of his (Shahs Mulk) transfer. Voluntarily says that on that, date there was a failure of electricity hence work might have not been done by the workers on that ground. Round about 12-30 p.m. when I returned after having lunch I found the failure of electricity. Failure continued till the closing hours round about 4-30 p.m. Failure was all over the Factory. Nearly no work was done by the workers in the entire factory during the period of failure. This is the common stand taken by respondents. The argument of Mr. M.A.Khan is that this stand taken by the workers was as late as 9-4-1981. This stand was taken one year late. The learned Labour Court has not believed the witnesses in the domestic enquiry and has observed that the picking out of four from the seventeen workers, was an act of malice. The main question is whether there was a power failure the result of which was that the respondents and other workers could not work or there was an illegal strike. Mr. M.A.Khan reiterated that since the defence of power failure is taken one year after the incident, therefore, the Labour Court ought to have believed that there was a strike, illegal as such. The entire question boils down to this facts and I believe that evidence ought, to have been given to what workers had stated in defence or in their cross-examination that there was a power failure. This is because the four respondents are picked out from the seventeen workers by the management and had made then a target. It smells some sort of malice. Mr. M.A.Khan stated that they were picked out because of the administrative difficulties.

6. The next, Mr. M.A. Khan argued that in case of domestic enquiry, strict proof for a fact is generally not taken and it is mere an enquiry. It has been urged that under subsection (5) of section 25-A, I.R.O. 1969 it is provided that a Labour Court to adjudicate and determine a grievance under subsection (4) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances) of the case. This provision is contained in section 25-A, I.R.O. The learned counsel for the appellants himself has stated that all the farts and circumstances are to be considered and thereafter pass just and proper order in the said circumstances. To my mind all the circumstances considered in these particular matters that well high it could be a possibility that there was a failure of the Electricity and, therefore, the work was stopped. This circumstance cannot be overlooked although it was stated by the respondents late by one year. But all the same this fact would be considered. The learned Labour Court, has, therefore, decided in good conscious the facts of this case and has given due importance to the circumstance of the failure of the Electricity. I agree with the version of the respondents in cross-examination.

7. In all these four cases, I would agree and maintain the order of the learned Labour Court and dismiss these four appeals accordingly.

8. However, I have seen 'the circumstances of this case. The back benefits right from 1980 till they are re-instated need not be given to the respondents inasmuch as they did not put down in their evidence that they were unemployed during the period. This case of unemployment, should have been considered by the. Labour Court and on the basis of non-employment, he should have warded the back benefits. In these cases particularly the conduct of the respondents by inciting the co-workers not to resume to work, if it is true, they should not be given the back benefits. So, the appeals are dismissed without an award of back benefits.

A. E. Orders accordingly.

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