This constitutional petition is directed against the judgment of Sind Labour Court No. 2, dated 4-8- 1973 whereby the applications of the three petitioners under Standing Order XVIII of the Standing Orders Ordinance, 1968 for their re-instatement in service with retrospective effect were dismissed.
2. The facts of the case in brief are that the petitioners were in employment of respondent No. 1, Pakistan Pharmaceutical Products Limited. Petitioner No. 1 Miss Mehr Sultana worked in the packing department Petitioner No. 2 Mohammad Abdullah worked as a carpenter while petitioner No. 3 Mohammad Sharif worked as a plumber. In the year 1970, the workers had formed a Union but the office-bearers of that Unionwere stabbed and manhandled by Goondas said to have been sent by the management. The members of the Union, therefore, gave a strike notice along with the charter of their demands and they resorted to strike from 3rd June 1970. The District Magistrate, Karachi then intervened and a draft settlement was forwarded to the Union and the management for their signatures but this settlement was never signed. Another settlement was then agreed to by theSecretary of the Union. Meanwhile it is said that fresh elections were held by the Union and petitioner No. 1 was elected as the General Secretary. The petitioner repudiated the settlement. It is then said that the Management tried to victimise the active members of the Union. Some were transferred to the head office from the factory and others were charge-sheeted. Petitioner No. 1 was also served with a charge-sheet for misconduct. The charges against her were that she dragged out the girls forcibly from the Ampoules Department and she bit the Assistant Supervisor Miss Anwari Mirza for not leaving the work to join her. That she gharoed the factory and prevented the managerial staff from entering the factory. She also prevented the Union Workers from going inside. That she used filthy language and abused and spat on the face of Mr. Agha Gul a senior officer who tried to enter the factory on 5-6-1970. Petitioner No. 1 denied these allegations in her written statement. She stated that she had come to the factory gate only at 2 p.m. And not at 8 a.m. As alleged. That she had never known any person by name Agha Gul. On 22nd August 1970 the petitioner No 1 was dismissed from service as a result of an ex parte enquiry because she did not participate in the said enquiry. Orders were also served on petitioners Nos. 2 and 3 terminating their services, allowing them one month's notice pay and gratuity. All the three petitioners moved separate applications before the Labour Court for re-instatement which were dismissed.
3. It has been argued by Mr. Mohammad Shafiq Qureshi on behalf of the petitioners that the order of dismissal was bad and against the principles of natural justice and the order terminating the services of petitioners Nos. 2 and 3 were against Standing Order No. 13 since there were employees junior to them and only the junior-most employees could be retrenched.
4. Regarding the case of petitioner No. 1 it has been stated that the petitioner No. 1 had been charge-sheeted during the strike period before any agreement had been reached. Petitioner No. 1, who was on strike which was considered to be legal did not participate in the enquiry proceeding ; that no enquiry was in fact held and she was dismissed from service and served with an order of dismissal straightaway. Before the order of dismissal she had not been served with any notice nor had the report of the enquiry officer been forwarded to her. The dismissal was accordingly against the provisions of Standing Order 5(4).
5. It is an admitted position that a second notice calling upon her to show cause why she should not be dismissed from service was never issued to petitioner No. 1, nor was any copy of the report of the enquiry officer sent to her. In fact no report of the enquiry officer giving the findings with regard to the charges mentioned in the charge-sheet appears on the file. It has been contended by the counsel for the petitioner that no enquiry had ever been held.
6. Clause (4) of Standing Order 15 reads as under :----- "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.
The approval of the employer shall be required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent enquiries before dealing with charges against a workman."
Thus the basis of the order of dismissal under the above clause of the Standing Order is the report of the enquiry officer. The employer besides this report is required to hold independent enquiries and come to independent findings with regard to the subject-matter of the charges shown to have been proved against a workman in the report of the enquiry officer. In the present case the petitioner was only served with a letter dated 19-8-1970 showing that since she did not participate in the enquiry it was conducted ex parte and she was found guilty of misconduct individually and collectively. She had accordingly been dismissed from service with immediate effect.
7. In Punjab Road Transport Corporation v. The Punjab Labour, Appellate Tribunal, Lahore (1973 SCMR 455), it was observed by the Supreme Court in a similar case that where the enquiry report which was indeed one of the circumstances alleged against the respondent was never supplied to him with the result that he had no opportunity to explain anything in the report that was adverse to him, then the order of dismissal passed against the respondent would be bad. That it was also necessary to give the respondent an opportunity to show cause against the order of dismissal. It was stated in the judgment; "In our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. Evidently such an opportunity must take a form of written show-cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted that he was not guilty cannot replace the aforesaid requirement of law."
8. The learned counsel on behalf of the respondent-Company has referred to the case of Mohammad Shamim v. Pakistan Tobacco Co. Ltd. (1975 SCMR 46), to show that where the employee did not ask for a copy of the enquiry report he could not complain of the copy not having been supplied to him. However, in that case a second show-cause notice in writing had been served on the employee and the result of the enquiry report had been indicated to him. In the present case not only was a show-cause notice never given before passing an order of dismissal but ---neither the enquiry report nor the findings were ever communicated to the petitioner and she had hardly any notice of the charges found to have been proved against her.
9. It has been argued by the learned counsel on behalf of the respondent----Company, that since petitioner No. 1 had made a representation in the form of an appeal against the order of dismissal, and the Managing Director had dismissed the said appeal, the requirement of a second notice could not be considered to be necessary as the petitioner had the opportunity of having been heard with regard to the order of dismissal passed against her. The representation in this case was in fact a complaint regarding unfair labour practice of the company in serving her with a dismissal order and the reply was mere contradiction of the allegations levelled against the Company. The said representation could not, therefore, be said to be sufficient for condoning the requirement of a second notice. The learned counsel has referred to the case of United Distributors Limited v. Zahid Hussain Khan and 2 others (PLD 1976 Kar. 376), in support of his contention that a second notice could in certain circumstances be dispensed with. It was observed in that case as under :- "Hence we are of opinion that there was no necessity as submitted by his counsel that second show-cause notice should have been given to the respondent No. 1 before issue of dismissal order because that represen--tation Annexure `L' after dismissal was considered and rejected by the petitioner as stated above."
This judgment is dated 10th August 1973. Obviously the Supreme Court decision of 15th June 1973 in the case of Punjab Road Transport Corporation had not been placed before their Lordships. In a subsequent Division Bench decision of this Court, it has been held that the issue of a second show- cause notice is a mandatory requirement of the principles of natural justice and a prerequisite of Standing Order 15(4). A reference was made by the learned Single Judge of this. Court for the question being decided by the larger Bench "whether in cases involving dismissal for misconduct after enquiry, issuance of a second show-cause notice is requirement of Standing Order 15(4) of the West Pakistan Standing' Orders Ordinance, 1968 on principles of natural justice?" In the two cases referred to the Division Bench the petitioners had not been supplied copy of the enquiry report and they were not served with a second show-cause notice, the petitioners bad been found guilty of misconduct and they had been dismissed from service. The reference came up before a Division Bench in Const. Petition No. 847/74 and it was held by Muhammad Haleem and M. A.
Rashid, JJ. Relying on the case of Punjab Road Transport Corporation (1973 SCMR 455) and International Labora--tories Employees' Union v. Sind Labour Appellate Tribunal (PLD 1976 Kar. 292) that the requirement of a second show-cause notice was implicit in Standing Order 15(4) of Ordinance, 1968. It was observed by their Lordships, that there was no conflict between the two decisions of the Supreme Court in 1973 SCMR 455 and 1975 SCMR 46 as the same ground was covered by their Lordships of the Supreme Court in these cases; that it was necessary requirement of the principles of natural justice to allow the employees an opportunity to show cause against the order of dismissal, and supply of copy of the report would certainly facilitate the furnishing of the explanation since the report was the basis for issue of dismissal order.
10. Under these circumstances the dismissal of petitioner No. 1 would appear to be bad being against the principles of natural justice. The order of the Labour Court in this regard is thus not maintainable:
11. Regarding the termination of service of respondents Nos. 2 and 3 it has been argued that it is against Standing Order 13 providing procedure for retrenchment. However, the services of petitioners 2 and 3 had not been terminated under Standing order 13 but they were dispensed with under Standing Order 12 because they were no longer required. They were accordingly allowed one month's wages in lieu of notice. The question of retrenching the workers junior to them in the category would not arise since this was not a construction company and there could be no other employees in the categories of carpenters and plumbers. Therefore, with regard to the termination of the services of petitioners 2 and 3 there is no ground for interference.
12. The petition is thus partly allowed.