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Writ Petition No. 1912 of 1983, decided‑on 20th May, 1987.

‑‑‑Ss.25‑A a 38(3)‑‑Constitution of Pakistan (1973), Art. 199‑‑Termina tion of services of employees on plea of closing down of establishment‑ Validity of termination order‑‑Closing down of establishment not proved on record‑‑Labour Appellate Tribunal's finding that establishment had not been closed and steps were under way to lease it out and that services of workmen could not be terminated by adopting such a device, upheld by High Court in exercise of Constitutional jurisdic tion‑‑Failure to mention in termination order fact of closing down of establishment and fact that machinery worth lacs of rupees was lying vacant, for maintenance whereof a supervisor was still posted, held, would show that such establishment had not been closed and such device had been adopted to terminate services of workmen.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art 199‑‑Consti tutional jurisdiction, exercise of‑‑Finding of Tribunal based on evidence‑‑Effect‑‑Where finding given by Labour Appellate Tribunal was based on evidence, such finding, held, could not be interfered within constitutional jurisdiction of High‑Court.

Muhammad Husain Munir v. Sikandar etc. P L D 1974 S C 139; Muhammad Suleman etc. v. Javed Iqbal etc. P L D 1982 S C (A J & K) 64 and Asma v. District Judge, Sialkot etc. P L D 1987 Lah. 263 rel.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art.199‑‑Termi nation of services by establishment‑‑Objection to jurisdiction of Labour Appellate Tribunal to entertain appeal‑‑Where establishment had submitted to the jurisdiction of Labour Appellate Tribunal and did not raise plea of lack of jurisdiction, such establishment, held, could not be permitted to raise such plea in constitutional jurisdiction before High Court‑‑In addition, plea of jurisdiction having been raised before Labour Court which was over‑ruled and failure of establishment to file cross‑objections ‑on point of jurisdiction before Labour Appellate Tribunal in appeal filed by workmen against such establishment would render objection on plea of jurisdiction as redundant.

Saeed Ahmad Chand v. Regional Manager, P.A.S. & D.C. Lahore 1978 P L C 436 and Habibullah v. Government of the Punjab etc. P L D 1980 Lah. 337 ref.

‑‑‑Ss.25‑A & 38(3)‑‑Constitution of Pakistan (1973), Art.199‑‑Addi tional evidence‑‑Permissibility in constitutional jurisdiction‑‑Production of additional evidence in shape of letter by establishment, held, could not be permitted for reason of failure of such establishment to produce same at earliest opportunity before subordinate Courts‑‑Fresh evidence could not be permitted in constitutional jurisdiction of High Court.

‑‑‑S.5‑‑Constitution of Pakistan (1973), Art 199‑‑Constitutional peti tion against termination of service by an employee not covered by definition of "workman"‑‑Delay in filing such petition condoned by High Court on ground that such employee's case was connected with case of workmen who had been reinstated in service by Labour Appel late Tribunal and against whom constitutional petition was pending in High Court‑‑Petitions filed by establishment against re‑instatement in service of workmen by Labour Appellate Tribunal, being devoid of merit were dismissed while petition filed direct by employee not covered by definition of workman was accepted by High Court declaring his termination from service as without lawful authority and of no legal effect.

M.N. Beg for Petitioner.

M. Nawaz Kasurifor Respondent.

Dates of hearing 26th, 27th, 28th, 29th April, 1987 and 2nd, 3rd, 5th and 9th May, 1987.

The petitioner, Punjab Small Industries Corporation (hereinafter to be known as the Corporation) has moved this Constitutional petition N.P. No. 1912 of 1983 under Article 9 of the Provisional Constitution Order, 1981, against the respondents whereby the Punjab Labour Appellate Tribunal vide its decision dated 20‑4‑1983, accepted the appeal of the respondent No.2 Abdul Waheed, directing his re instatement to his service with back benefits. Similarly, the Corporation has filed W.P. No: 1913 of 1983 against Muhammad Ashraf respondent. W.P. No. 1914 of 1983 against Nazir Ahmad respondent, W.P. No. 1915 of 1983 against Abdul Hamid respondent and W.P. No. 1916 of 1983 against Muhammad Sarfraz respondent. Since common question of facts and law are involved in all these connected matters, I, therefore, propose to dispose of these petitions by my consolidated order.

2. Respondents No.2 in all these connected matters were appointed as expert bottomar, upper man, bottomar, fency leather Mistri and upper man in a section of the Corporation called the Institute of Leather Technology, Footware Section Gujranwala. The object to run the aforesaid centre was to provide trained personnel for shoe‑making industry with latest technology. According to the Corporation, at the initial stage the project was run with useful service to the industry but later on its utility diminished rapidly as a result of which the Board of Directors took the decision to close the project. This is the version of the Corporation, although it is wholly refuted and denied by the contesting respondents. The Board aforesaid, directed on 14‑4‑1980 that the services of the staff should be terminated and the project should be sublet. As a consequence of the decision stated above, the services of respondents No.2 in each case were terminated with immediate effect being no longer required vide order dated 9‑8‑1980 (Annexure 'B'). The respondents filed grievance petitions under section 25‑A of the Industrial Relations Ordinance, 1969, challenging the orders whereby their services were terminated before the Presiding Officer, Punjab Labour Court No.7, Gujranwala. The learned Presiding Officer of the said Court vide his orders dated 22‑2‑1982 (Annexure 'C') dismissed the petitions of the respondents. The respondents went in appeal before the Punjab Labour Appellate Tribunal, Lahore, under section 37 of the Industrial Relations Ordinance 1969, challenging the orders aforesaid. The learned Labour Appellate Tribunal vide his orders dated 20‑4‑1983 accepted the appeals c1 of the respondents with back benefits.

3. The learned counsel appearing on behalf of the Corporation has submitted that the learned Tribunal has misread the evidence on record, inasmuch as the statement of Ghulam Hussain (R.W.1) clearly shows that the shoe section of the institute is closed. It is stated that if the respondents are taken into service back, this shall be a great financial burden on the Corporation. It is vehemently contended by learned counsel for the petitioner that the provisions contained in the West Pakistan Industrial and Commercial Employment (Standing Ordinance, 1968, are not applicable to the Corporation as the Corporation is a statutory body being run by the Government and has got its statutory rules. On these premises the learned counsel stated that the learned Labour Appellate Tribunal had no jurisdiction to entertain the appeals of the respondents and to decide the same. Learned counsel wanted to produce some additional evidence at this stage to prove that shoe section of the institute could not be leased out as per an agreement between Pakistan and West Germany. Learned counsel for respondents No. 2 in each case has taken the stand that their posts were never abolished and as such, their services could not be terminated. It is submitted that the shoe section of the institute has been given on contract basis. It is submitted that the learned Labour Appellate Tribunal after considering the entire evidence produced by both the parties and the law applicable on the subject, had given a finding of fact that the shoe section has not been closed and that the posts of the respondents have not been abolished. It is next vehemently submitted that the petitioner has not come with clean hands in the High Court and does not deserve any discretionary relief. It is submitted that the petitioner now wants to build altogether a new case from the one which was available to it before the learned Labour Appellate Tribunal. The learned counsel forcefully argued that this was not the case of the Corporation that the shoe section of the institute had been closed. Neither this plea was taken in the written statement nor in the relieving order. The learned counsel has produced before me affidavit of Mr. Zafar Saleem Advocate, Gujranwala, to disclose that R.W.1 Ghulam Hussain did not depose in his statement that shoe section of the institute is lying closed since long. Besides this, the learned counsel has also placed before the Court the handwritten copy of the statement of R.W.1 which he noted while inspecting the file. It is next contended, that no counter affidavit has been filed by the Corporation challenging the contents of the affidavit of Mr. Zafar Saleem, Advocate, Gujranwala. The affidavit of Mr. Zafar Saleem, Advocate was that he was a counsel in the case and appeared before the Punjab Labour Court No.7 as such. He stated that he inspected the file and noted the statement of Ghulam Hussain Accounts Officer (R.W.1) in its entirety and there was no mention by the said witness that the shoe section of the institute has been closed.

4. I have heard learned counsel for the parties at great length and perused the record very minutely and I have come to the conclusion that the shoe section of the institute has not at all been closed. To begin with, the learned Punjab Labour Appellate Tribunal after considering the entire evidence on record gave a clear finding of fact that shoe section has not been closed. The learned Tribunal has placed reliance on the written statement as well as the statement of Ghulam Hussain (R.W.1) to say that the shoe section has not been closed The learned Tribunal has also come to the conclusion that steps had been taken for leasing out the shoe section and tenders for that purpose have been invited. The learned Tribunal has concluded' by saying that services of the workmen could not be terminated by adopting such a device. The finding of fact arrived at by the Punjab, Labour Appellate Tribunal coupled with the affidavit of Mr. Zafar Saleem, Advocate, Gujranwala, I have come to the conclusion that the shoe section was not closed at the relevant time. The statement of R.W.1 Ghulam Hussain Accounts Officer did not contain the sentence, namely, "shoe section is lying closed". It was pointed out by the learned counsel appearing on behalf of the respondents that inter polations had been made in the statement of Ghulam Hussain (R.W.1), inasmuch as the sentence namely, "shoe section is lying closed" has been added in a different ink by a different hand. I have myself seen the said disputed sentence with magnifying glass and I find the same in different hand and different ink from the other statement of R.W.1. The learned counsel for the Corporation, when confronted with this specific situation, could not explain the same in so many clear words. However, he stated that the learned Punjab Labour Court No.7 has categorically stated in his judgment that the witness R.W.1 Ghulam Hussain has stated that 'shoe section is lying closed'. Additionally it is clear from the orders dated 9‑8‑1980, whereby the services of the respondents were terminated on the ground of abolition of posts. In these orders there is no mention that the shoe section has been closed. On the request of the learned counsel for the Corporation, one Mr. Muhammad Nauman Usmani, Supervisor, was summoned in Court and he deposed that shoe section is closed since 1980 and the machinery worth 19 (nineteen) lacs is lying idle and that his services have been retained in order to look after the said machinery. I am also of the view that this officer is the employee of the Corporation and he cannot go against his instructions. The mere fact that the machinery worth lacs of rupees is still installed at the spot and that he was there as supervisor will show that the section in question has not been closed. I, therefore, think that the finding of the learned Labour Appellate Tribunal that this device has been adopted to terminate the services of the respondents appears to be correct.

5. I am of the view that the finding given by the learned Labour Appellate Tribunal is based on evidence and I do not find any justification to interfere in that finding of fact in the exercise of extraordinary writ jurisdiction. If any authority is needed, reference may be made to Muhammad Hussain Munir v. Sikandar etc. P L D 1974 S C 139, Muhammad Suleman etc. v. Javed Iqbal etc. P L D 1982 S C (A J & K) 64 and Asma v. District Judge, Sialkot etc. PLD 1987 Lah. 263. There is no force in the contention of the learned counsel for the Corporation that the learned Labour Appellate Tribunal had no jurisdiction to entertain the appeal. The Corporation submitted to the jurisdiction of the learned Labour Appellate Tribunal and the did not raise this plea before the said Court and, therefore, now at this stage they cannot be permitted to raise the plea of jurisdiction. Furthermore, the plea of jurisdiction was raised by the Corporation before the Presiding Officer, Punjab Labour Court No.7 that the instant case does not fall in his jurisdiction for determination. However, the learned Presiding Officer overruled the objection and held that the Labour Court was competent to entertain and decide the matte and in that behalf reliance was placed on Saeed Ahmad Chand v. Regional Manager, P.A.S. & D.C. Lahore 1978 P L C 436, This view is further supported by the case of Habibullah v. Government of the Punjab etc. P L D 1980 Lah. 337 wherein it was held that the respondent is one of such Corporations and the functions it is entitled to perform under sections 18 and 27 of Act XV of 1973, to constitute it as a person performing functions in connection with the affairs of a Province. I respectfully follow the dictum laid down in this case for its service in the case in hand. It may be pointed out that the Corporation did not file any cross‑objections before the Punjab Labour Appellate Tribunal so far as this part of the finding by the Presiding Officer Punjab Labour Court No.7 was concerned. Thus the objection of the Corporation is repelled. The learned counsel wanted to produce some additional evidence in the shape of a letter saying that the machinery installed in the institute shall not be leased out, cannot b permitted to do so at this stage. If the aforesaid letter was so much important from the point of view of Corporation, they should have produced that letter at the earliest possible opportunity. They did not do so, neither before the Punjab Labour Court No.7, nor before the Punjab Labour Appellate Tribunal. They, therefore, cannot be allowed to produce fresh evidence at this stage in the exercise of Constitutional jurisdiction of the High Court. It is next argued by the learned counsel that the actions and orders of the Corporation stand validated by the Validating Ordinance, 1972, and, therefore, if any irregularity has been committed by the Corporation, that stands validated. I am not persuaded to go into the validity or otherwise of the contention raised by the learned counsel for the Corporation because the same point is under consideration before the Full Bench of the Lahore High Court. Therefore, I do not enter into the discussion on the plea of the learned counsel.

6. Now I take up Writ Petition No.2332lS‑83 titled Muhammad Ashraf v. Punjab Small Industries Corporation etc. In this case there is slight difference from the other five connected writ petitions, inasmuch as the petitioner, Muhammad Ashraf, directly came in the High Court by moving the aforesaid writ petition against the orders of the respondent whereby his services were terminated on the ground that the post of Shoe Technologist in the Institute of Leather Technology, Gujranwala, had been abolished. In this case, the learned counsel states that the petitioner does not come within the definition of a workman, and, therefore, he could not go before the Labour Court for the redress of his grievance. However, he stated that if the High Court comes to the conclusion that the orders passed by the Punjab Labour Appellate Tribunal were justified in law and upheld, then in that case, the petitioner shall also be benefited by that order. The writ petition of the petitioner was also admitted on the basis that the impugned orders terminating the services of the respondents in the connected cases were under scrutiny before the High Court. The petitioner maintained that he sent the representation to the respondent Corporation but the same was not considered at all and instead the petitioner was given the assurance by the Corporation that the cases of Abdul Waheed, Muhammad Ashraf, Nazir Ahmad, Abdul Hamid and Muhammad Sarfraz were pending adjudication before the Court of law and whatever would be the result in those cases, it shall be applicable in the case of the petitioner as well and in case the Court decides that the respondents in the other connected matters are restored in their service, the writ petitioner shall also be reinstated in his service. On the decision by the Punjab Labour Appellate Tribunal vide its order dated 20‑4‑1983, the petitioner moved the respondent Corporation for his reinstatement but the Corporation refused to accept the request of the petitioner. In view of this, the petitioner has come in the writ jurisdiction of the High Court.

7. Learned counsel for the petitioner prays that he may be linked with whatever might be the decision in all the other connected matters. Since this petition too is connected with the other similar matters, therefore, the delay in challenging the impugned order passed by respondent Corporation is condoned in view of the special circumstance of the instant case.

8. The upshot of the above discussion is that there is no force in W.P. No. 1912 of 1983, W.P. No. 1913 of 1983, W.P. No. 1914 of 1983, W.P. No.1915 of 1983 and W.P. No. 1916 of 1983 filed by the Corporation, which ace accordingly dismissed leaving the parties t bear their own costs.

9. However, W.P. No. 2332/8 of 1983 titled Muhammad Ashraf v Punjab Small Industries Corporation is accepted declaring the impugned orders dated 1‑10‑1980 and 10‑11‑1980 as without lawful authority and of no legal effect, leaving the parties to bear their own costs.

A.A./P‑12/L

Order accordingly

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